# Dr. Surya Kant Ojha & Ors v. State of U.P. & Ors

- **Citation:** (2016) 4 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-07
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-surya-kant-ojha-ors-v-state-of-u-p-ors-43631
- **Pages:** 33

## Headnote

service held ultra vires MCI Postgraduate Regulations, 2000; Regulation 9 is a complete code permitting only
rural-service incentive marks and 50% in-service reservation in PG Diploma (not degree) seats, and under
Entry 66 List I MCI's merit-based scheme prevails, so the State lacked competence to create an in-service
degree quota; entire G.O. 28.2.2014 struck down and PG degree admissions directed to be made strictly on
NEET-PG merit under Regulation 9. (Paras 1-3, 21-24)

Writ Allowed

Case Law discussed:

## Text

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318 INDIAN LAW REPORTS ALLAHABAD SERIES
or more be deleted from electoral rolls under Section 22 of the Act of 1950; and (ii) nomination
papers of such persons be rejected.

23. Sri S N Shukla who appeared in person has drawn the attention of the Court to an order
dated 12 November 2007 of the Hon'ble Supreme Court in Lok Prahari vs. Election Commission
of India11 dismissing a writ petition filed under Article 32 of the Constitution on 12 November
2007. Subsequently a review petition was dismissed on 27 February 2008. In IA No. 3 of 2007 in
Writ Petition No. 593 of 2007, an order was passed by the Supreme Court on 16 April 2008 in the
following terms:

Writ Petition No. 593/2007 was dismissed in limine. However, we make it clear
that the representation filed by the petitioner before the Chief Election Commission can be
considered and disposed of in accordance with law.

I.A. No. 3 is disposed of accordingly."

24. Having due regard to the aforesaid directions which have been issued by the Supreme
Court in IA No. 3 of 2007 (copies of the orders of the Supreme Court being annexed as Annexures
6, 7 and 8 to the writ proceedings), no orders are specifically necessary in regard to the second
prayer.
25. The writ petition is, accordingly, dismissed. There shall be no orders as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ - C No.- 1380 Of 2015
&
Connected With Other Cases

Dr. Surya Kant Ojha & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Ratnakar Upadhyay, Radha Kant Ojha

Counsel for the Respondents:
C.S.C
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
319
PMHS 30% MD/MS Quota Quashed - Government Orders dated 28.2.2014 and 17.4.2014 reserving 30%
MD/MS seats in Government Medical Colleges for PMHS doctors with three years' rural/remote PHC/CHC
service held ultra vires MCI Postgraduate Regulations, 2000; Regulation 9 is a complete code permitting only
rural-service incentive marks and 50% in-service reservation in PG Diploma (not degree) seats, and under
Entry 66 List I MCI's merit-based scheme prevails, so the State lacked competence to create an in-service
degree quota; entire G.O. 28.2.2014 struck down and PG degree admissions directed to be made strictly on
NEET-PG merit under Regulation 9. (Paras 1-3, 21-24)

Writ Allowed

Case Law discussed:

1. Dr. Preeti Srivastava v. State of M.P., (1999) 7 SCC 120
2. State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83
3. AIIMS Students' Union v. AIIMS, AIR 2001 SC 3262
4. State of U.P. v. Pradip Tandon, (1975) 2 SCC 761 / 2 SCR 761
5. Dr. Narayan Sharma v. Dr. Pankaj Kr. Lehkar, AIR 2000 SC 72
6. Satyabrata Sahoo v. State of Orissa, (2011) 8 SCC 203
7. Sudhir N. v. State of Kerala, (2015) 6 SCC 685
8. MCI v. State of Karnataka, (1998) 6 SCC 131
9. Dr. Snehelata Patnaik v. State of Orissa, (1992) 2 SCC 26

(Delivered by Hon'ble V.K. Shukla, J.)

1. Civil Misc. Writ Petition No. 1380 of 2015 has been filed for quashing of the
Government Orders dated 28.2.2014 and 17.4.2014 so far as it puts condition of working for three
years in rural area being ultravires and also hit by Articles 14, 15 and 16 of the Constitution of
India. Civil Misc. Writ Petition No. 34118 of 2015 has been filed for considering the application of
petitioner dated 24.3.2015 for issuance of No Objection Certificate in favour of petitioner for
giving the admission in MD/MS/Diploma in UPPGMEE-2015. Civil Misc. Writ Petition No. 35050
of 2015 has been filed for quashing of the declaration of the result dated 2.6.2015 and for
permitting the petitioner to go for counselling on the basis of U.P. Post Graduate Medical Entrance
Examination 2015 in PHMS Cadre. All the three writ petitions have been clubbed and have been
taken up together.

2. Brief background of the case, as is emanating from the record in question, is that each
and every petitioner is a member of Provincial Medical Health Services and each one of the
petitioner claims that as per the posting accorded to them they have been accorded placement and
has been performing and discharging their duties. Petitioners submit that 30% quota had been fixed
for undertaking the postgraduate course from amongst the incumbents belonging to Provincial
Medical Health Services and in reference to the said policy decision that has been so taken Cabinet
decision was taken on 16.1.2014 resulting in issuance of Government Order dated 28.2.2014. The
object of the aforesaid scheme was to engage Provincial Medical Health Services Cadre members
to go for higher education. The Government Order dated 28.2.2014 proceeded to make a mention
that all those members of Provincial Medical Health Services Cadre would be available who have
in different districts served in far remote backward areas in respective Community Health
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Centres/Primary Health Centres. After the said policy decision has been taken the examining
university in its turn issued advertisement and therein the eligibility for admission has been
provided for and as per the same only those incumbents were eligible to apply who have served for
a period of three years in remote areas. Petitioners, at this juncture, are assailing that quoting
condition of working of three years in remote rural areas is contrary to Articles 14, 15 and 16 of the
Constitution of India as it creates class amongst class merely on the basis of placement and to
redress this grievance petitioners filed Writ Petition No. 1380 of 2015 wherein this Court on
29.7.2015 has passed the following order:

"Though several opportunities have been granted by this Court to file a counter
affidavit, no counter has been filed. The petition raises an important issue as to whether the
reservation of 30% seats for in service candidates can be denied on the ground that they have not
completed three years service in a rural area when the power to issue an appropriate posting lies
with the State Government.

We are of the view that the Principal Secretary, Medical Education and Health
must file his personal affidavit explaining the justification for the Government Order which is
questioned and the position of the State Government. We clarify that no further adjournments
would be granted and if no affidavit would be filed, the Court would be constrained to dispose of
the petition on the basis of the materials as they stand on the record.

The counter affidavit shall be filed within a period of one month from today. List
on 1 September 2015 in the additional cause list."

3. In the aforesaid writ petition counter affidavit has been filed and therein it has been
contended that medical health system of State spreads from city to rural areas and the Government
makes efforts to reach to the difficult areas also by establishing Primary Health Centre as well as
Community Health Centre in rural and remote areas. It has also been mentioned that it is no secret
that in the recent area on one ground or another ground a large number of doctors are preferring
their posting in the urban area or in the areas covered under the Nagar Panchayat or local areas and
in order to encourage the doctors, who are serving in the remote part of the district and to provide
specialized medical facilities to the rural areas of the district, the State has evolved a policy
permitting those doctors for having Post Graduate Degree during their service tenure and in the said
backdrop Cabinet has taken decision dated 16.1.2014 resolving to reserve 30% seats to those
Provincial Medical Services doctors, who have completed three years service in the rural areas. In
pursuance of Cabinet decision dated 16.1.2014 first Government Order was issued on 28.2.2014
vide which it was decided that in order to be eligible for admission on those 30% seats which are
reserved for those doctors who must have completed three years service in the rural areas. By
means of the aforesaid Government Order the detailed guidelines as well as terms and conditions
have been provided for. It has also been mentioned that pursuant to the above Government decision
a list of the PHC/CHC was issued for the year 2014 and recently in the year 2015 vide letter dated
23.4.2015 the list of the PHC/CHC was issued and the same has been uploaded on the website of
the department in question and, thereafter, after uploading of the aforesaid list, some of the
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
321
complaints have been received in the Government that few PHC/CHC have been wrongly shown in
the rural areas whereas those are situated in the urban areas or city area, similarly, some of the
eligible PHC/CHC has been erroneously left out after taking into consideration the objections
received from different quarters, the matter was scrutinized and information from the Chief
Medical Officers of all the districts were sought and they have been directed to verify the list of
their districts so that the necessary corrections may be carried out and ultimately vide Government
Order dated 26.5.2015 it was notified that all the PHC/CHC, which are not situated in the areas
covered by Nagar Nigam/Nagar Panchayat/Nagar Palika etc. other rural areas PHC/CHC were
notified for eligibility for the reservation of 30% postgraduate seats. It has also been mentioned that
in pursuance to the above policy decision the examination was held in March 2015 and those
doctors who were successful in the said examination and posted at rural areas or have completed
requisite service in the rural area, they were permitted to counselling against those 30% reserved
seats. It has also been asserted that State is fully competent to lay down the guidelines for
admission to postgraduate medical course which is not contrary to any rules and regulations framed
by the MCI and secondly the period of service required as minimum eligibility criteria are having
nexus with object which the State Government wants to achieve i.e. to encourage the doctors for
posting in the rural areas and to provide better medical facilities to the public of the rural areas.

4. This Court in the Writ Petition No. 35050 of 2015 on 9.10.2015 has proceeded to pass
the following order:

"These three writ petitions have been filed for the same relief.

Connect with Writ Petition No. 1380 of 2015.

We prima facie find that the allotment of seats for admission in Post Graduate
courses under the PMHS quota, is challenged on the ground that the fixation of the criteria for
providing reservation with reference to identified Public Health Centre and the incumbent working
thereof is arbitrary.

The reservation for admission to Post Graduate courses in Medical Sciences to the
extent of 30 per cent is provided under Government Order dated 28.2.2014 with the condition that
all those incumbents, who have completed three years of service at distance and difficult backward
areas of various districts to be identified by the State Government for over a period of three years,
would be entitled to the benefit of said reservation.

According to the petitioner, it is for the State to appoint a Medical Officer at such
PHC in the State as it deserves. The State has to declare such Primary Health Centre and
Community Health Centre in a district as distant and difficult Health Centre. This according to the
petitioner has resulted in selective benefit of reservation to be provided to few candidates by
identifying particular centres by the State Government. It is further stated that at no point of time,
the petitioner has made aware of such benefit of working petitioner has participated in
322 INDIAN LAW REPORTS ALLAHABAD SERIES
UPPGMEE-2014. If three years of working are counted from the date of notification in 2014 then it
would end in 2017 only.

We find prima facie substance in the contention raised. Time is being granted to
the respondents to explain to the Court as to how the incumbent of PMS cadre could chose to work
at a particular place so as to avail the benefit of reservation.

In the meantime, we issue following directions:

(a) An officer of the State may appear in person for explaining the actual
implementation of reservation in admission to the Post Graduate courses qua, members of PMS
cadre within 30 per cent quota with due regard to the identification of the Primary Health Centre /
Community Health Centre on the basis of merit of such candidates.

(b) Admissions granted under the 30 per cent to Post Graduate courses shall be
subject to the orders to be passed in the present writ petition and all the candidates will be
informed of this order by the State Government in writing.

(c) The vacant seats within 30 per cent quota may be filled on the basis of merit of
candidates of PMS cadre if possible otherwise now.

The matter shall be listed next before appropriate Bench on 30.10.2015.

State may file counter affidavit by the next date."

5. Pursuant to the order passed by this Court on 9.10.2015 affidavit was filed on
30.10.2015 by mentioning following averments;

"It is submitted that Cabinet took an important decision on 16.1.2014 regarding
reservation of 30% seats of postgraduate (MD/MS) courses in government medical colleges for
MBBS degree holders of Provincial Medical Health Services (PMHS) cadre who have completed 3
years of satisfactory service at Primary Health Centre (PHC)/Community Health Centre (CHC)
situated in distant, remote and backward areas. In pursuance of the decision of the Cabinet
Government Order dated 22.1.2014 and 28.2.2014 were issued laying down certain eligibility
conditions and procedure for selection etc. Above mentioned Cabinet decision was widely
publicized. Decision of the Cabinet was uploaded on the website of Information Department of
Government of U.P. Besides, the some was got published in various daily newspapers namely
'Hindustan', 'Dainik Jagran', 'Amar Ujala', 'Times of India', 'Indian Express' etc. The Government
Order (G.O.) dated 28.2.2014 was also uploaded on the website of Medical and Health
Department. It is also relevant to mention here that the advertisement for admission in P.G.M.E.E.
Courses was also published in the newspapers.
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
323
Therefore it is clear from above submissions that Medical Officers of PHMS Cadre
as well aware of the fact that they will get 30% reservation in postgraduate (MD/MS) courses if
they work in PHCs/CHCs situated in distant, remote and backward areas.

It is submitted that in the G.O. Dated 28.2.2014 for admission to 30% seats of PG
courses, 3 years satisfactory services in PHCs/CHCs situated in distant, remote and backward
areas are mandatory. It is also mentioned in the G.O. dated 28.2.2014 that the selected medical
officers will have to furnish a bond declaring there in that they will serve in the government
hospitals of the state for minimum 10 years continuously, failing which they will have to pay Rs. 1
Crore to the State Government.

That it is also submitted since the above policy of the State Government as
declared by G.O. dated 22.1.2014 and 28.2.2014 came into force with immediate effect, therefore,
it is imperative to give benefit of the policy to the medical officers who have already completed 3
years requisite tenure and they were given admission to 30% reserved seats of MD/MS courses.
Thus there is no selective benefit of reservation to any of the candidate.

That at the time of appointment and first posting of newly selected medical officers,
options for the place of posting are being obtained. On the basis of such options they are posted
under Chief Medical Officers (CMO) and Chief Medical Superintendents (CMS). While under
CMO posting they get an opportunity to serve at PHCs/CHCs situated in distant, remote and
backward areas, if they desire to do so.

It is noteworthy to mention there that a large number of posts of Medical Officers
are lying vacant and tendency to work in PHMS cadre is decreasing. Therefore, by G.O. dated
28.2.2014 an incentive is given to PMHS cadre doctors by reserving 30% seats of PG courses for
them. So that they will get attracted to work in rural areas.

It is to be stated that in G.O. dated 28.2.2014 it was mentioned that Medical
Officers working in PHCs/CHCs situated in distant, remote and backward areas who have
completed 3 years of rural services satisfactorily will be given benefit of reservation of 30% seats
of PG (MD/MS) courses. After that vide G.O. dated 17.4.2014 it was made clear that all the rural
areas will be treated as distant, remote and backward areas. Further a modification has been made
vide G.O. dated 26.5.2015 by which the list of all rural PHCs/CHCs (except PHCs/CHCs located
in Nagar Panchayat, Nagar Nigam and Nagar Palika Parishad) was notified. Medical Officers
working only in those PHCs/CHCs for continuous and satisfactory services of 3 years in rural
areas are being provided the benefit of reservation of 30% seats of PG (MD/MS) courses.

It is also submitted that all the CMOs are directed vide G.O. dated 26.10.2015 to
give information of the G.O. dated 28.2.2014 to the newly appointed medical officers so that they
can avail the benefit of this scheme. CMOs are also directed if any medical officer who have not
completed 3 years tenure, request in writing for posting in rural area, then subject to the
availability of vacancy, he will be posted immediately at the required place. CMOs are also
324 INDIAN LAW REPORTS ALLAHABAD SERIES
directed not to transfer such medical officers except under unavoidable circumstances, who are
working in PHCs/CHCs situated in remote, distant and backward areas and who have not
completed the requisite eligibility tenure of three years. In unavoidable circumstances they will
have to be transferred to another PHC/CHC situated in rural areas till the completion of requisite
eligibility period.

That it is further submitted that in compliance of the order of this Hon'ble Court
dated 9.10.2015 necessary directions have already been issued vide G.O. dated 26.10.2015 to the
Principals of the Government Medical Colleges, Kanpur, Allahabad, Agra, Meerut, Jhansi and
Gorakhpur to inform Medical Officers studying in their institutions regarding directions of this
Hon'ble Court.

That in compliance of the order dated 9.10.2015 passed by this Hon'ble Court, it is
also relevant to state herein that the examination and counselling, the admission in postgraduate
courses (MD/MS) under 30% reservation quota has already been completed. Therefore, it appears
that at present there is no possibility of giving admission to any of the candidate on the vacant seat.
It is also relevant to mention here that the process of selection, counselling and conduction of
examination etc. is being done by Medical Education Department/Directorate of Medical
Education. As for the admission to diploma courses process is under way but admission to PG
Diploma courses is governed by a different policy and G.O. dated 23.5.2011.

That G.O. dated 23.5.2011 was also issued by the State Government fixing
eligibility conditions for admission to PG (Diploma) courses in various government medical
colleges and for admission to Diploma in Public Health (DPH) in Chhatrapati Sahu Ji Maharaj
Medical University, Lucknow and All India Hygiene Institute, Calcutta for MBBS degree holder
Medical Officers of PMHS cadre. 5 years period of service is mandatory for the admission to the
above course. If services are rendered in rural area (PHC/CHC) then the weightage of service of
that period is doubled and priority is also provided to such candidates in selection. It is also
provided in the said G.O. that after completing the PG diploma if concerned Medical Officer leaves
the Government service within 5 years, then Rs. 10 lacs and the money equal to the salaries, which
have been received during PG course, will have to be reimbursed. Apart from it, after completion
of the Training, minimum 3 years services in concerned speciality are also mandatory."

6. Thereafter, another order has been passed by this Court on 25.1.2016 in following terms;

"On 09.10.2015, this Court has proceeded to pass the following order:-

"These three writ petitions have been filed for the same relief.

Connect with Writ Petition No. 1380 of 2015.

We prima facie find that the allotment of seats for admission in Post Graduate
courses under the PMHS quota, is challenged on the ground that the fixation of the criteria for
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
325
providing reservation with reference to identified Public Health Centre and the incumbent working
thereof is arbitrary.

The reservation for admission to Post Graduate courses in Medical Sciences to the
extent of 30 per cent is provided under Government Order dated 28.2.2014 with the condition that
all those incumbents, who have completed three years of service at distance and difficult backward
areas of various districts to be identified by the State Government for over a period of three years,
would be entitled to the benefit of said reservation.

According to the petitioner, it is for the State to appoint a Medical Officer at such
PHC in the State as it deserves. The State has to declare such Primary Health Centre and
Community Health Centre in a district as distant and difficult Health Centre. This according to the
petitioner has resulted in selective benefit of reservation to be provided to few candidates by
identifying particular centres by the State Government. It is further stated that at no point of time,
the petitioner has made aware of such benefit of working petitioner has participated in
UPPGMEE-2014. If three years of working are counted from the date of notification in 2014 then it
would end in 2017 only.

We find prima facie substance in the contention raised. Time is being granted to
the respondents to explain to the Court as to how the incumbent of PMS cadre could chose to work
at a particular place so as to avail the benefit of reservation. In the meantime, we issue following
directions:

(a) An officer of the State may appear in person for explaining the actual
implementation of reservation in admission to the Post Graduate courses qua, members of PMS
cadre within 30 per cent quota with due regard to the identification of the Primary Health Centre /
Community Health Centre on the basis of merit of such candidates.

(b) Admissions granted under the 30 per cent to Post Graduate courses shall be
subject to the orders to be passed in the present writ petition and all the candidates will be
informed of this order by the State Government in writing.

(c) The vacant seats within 30 per cent quota may be filled on the basis of merit of
candidates of PMS cadre if possible otherwise now.

The matter shall be listed next before appropriate Bench on 30.10.2015.

State may file counter affidavit by the next date."

Pursuant to the aforesaid order passed by this Court, Shri Manvendra Singh
posted as Special Secretary,, Medical Health & Family Welfare Department, Government of U.P.,
Lucknow has proceeded to file an affidavit but the core issue that has been raised, qua the same,
there is no appropriate reply coming forward. Coupled with this, in Writ Petition No.1380 of 2015
326 INDIAN LAW REPORTS ALLAHABAD SERIES
another Division Bench has proceeded to pose question explaining the justification for the
Government Order clarifying therein that when the power to issue an appropriate posting lies with
the State Government, then whether candidates serving in urban area can be denied said benefit.

A response has been filed in the said writ petition in question and in paragraph 10
of the counter affidavit it has been mentioned that the guidelines for admission to PG Medical
Course is not contrary to any Rules and Regulations framed by MCI and secondly the period of
service required as minimum eligibility criteria are having nexus with object which the State
Government wants to achieve i.e. to encourage the doctors for posting in the rural areas and to
provide better medical facilities to the public of rural areas.

In this counter affidavit also the situation that the incumbents have no option nor
do they have any say to stay either in the rural station or urban areas has not at all been
adequately dealt with and that at the time, when the incumbents enter into service as to whether
any such option is given to him to be posted either in rural areas or in urban areas and as to
whether the benefit of being posted in rural areas is being informed to the aforesaid incumbents or
not? This Court at Lucknow also in Misc. Bench No.11859 of 2015 on 4th January, 2016 has posed
the question to the similar effect.

Once such is the factual situation that till date the State Government is not at all
coming with clear and categorical stand in reference of posting and service of doctors either at
rural stations or in urban areas and as to whether they have been informed of the benefit, if posted
at rural stations, in view of this, we proceed to ask the Principal Secretary, Medical Education &
Health, U.P. Shashan, Lucknow to file a precise reply on this aspect of the matter instead of filing
vague and evasive reply on this facet of the matter.

The matter be taken up on 09.02.2016 in computer list."

7. Pursuant to the same affidavit dated 9.2.2016 has been filed on the following terms;

"That at the time of first posting of the newly selected medical officers regarding
the place of their posting, they submit 3 options and on the basis of the options submitted by them
the newly selected Medical Officers holding MBBS degree are posted under the Chief Medical
Officers and the Chief Medical Officers further post them at the CHC/PHC situated in the district.
Newly selected Medical Officers having PG degree are posted on priority at the District Hospitals,
on the basis of the availability of the posts, by the Government.

That it is pertinent to mention here that the large number of posts of Medical
Officers are lying vacant in the PMHS care. In order to attract doctors to PMHS cadre, to
incentivise them and to provide better medical services to the public of rural areas, the Medical
Officers are posted in rural areas which are notified in the Government Order dated 26.5.2015,
and the reservation of 30% seats is provided to them for admission in P.G. Courses.
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
327
That in pursuance of the different orders passed by this Hon'ble Court a
Government Order dated 26.10.2015 was issued by the Government directing all the Chief Medical
Officers of Uttar Pradesh to provide information as well as the copy of the Government Order
regarding the benefit of 30% reservation for postgraduate courses to all Medical Officers of PMHS
cadre holding MBBS degree so they may know the benefits admissible under the scheme.

That by the Government Order dated 26.10.2015 a direction has been given to all
Chief Medical Officers that if any Medical Officer has not completed 3 years service in PHC/CHC
situated in notified remote, distant and backward areas (except Nagar Panchayat, Nagar Palika
Parishad and Nagar Nigam), submits a request in writing for posting in PHC/CHC situated in
rural areas, he should posted immediately if the vacancy is available in rural areas, so that they
may complete their prescribed eligibility for admission in P.G. Courses under 30% quota. It is also
mentioned in the said G.O. that if they are transferred to another PHC/CHC in any unavoidable
circumstance, they may be transferred to the PHC/CHC situated in rural areas itself until they
complete the requisite eligibility period.

That in compliance of the order dated 9.10.2015 passed by this Hon'ble Court a
Government Order dated 26.10.2015 has been issued by the Government directing the Principals
of the Medical Colleges, Kanpur, Allahabad, Agra, Meerut, Jhansi and Gorakhpur to inform all the
Medical Officers of PMHS cadre holding MBBS degree studying in P.G. Courses under 30%
quota.

That the list of PHC/CHC situated in remote, distant and backward areas (except
Nagar Panchayat, Nagar Palika Parishad and Nagar Nigam) has already been uploaded on the
official website of the Department of Medical Health and Family Welfare. It is further stated that
the scheme laid down by the Government Order dated 22.1.2014 and 28.2.2014 were widely
published in various newspapers namely Hindustan, Dainik Jagran, Amar Ujala, Times of India
and Indian Express etc. and Government Order dated 28.2.2014 was also uploaded on the website
of Medical and Health Department.

That "no objection certificate" for the counselling in U.P. PGMEE 2014 was
issued to Dr. Vivek Kumar Sachan, Medical Officer, Community Health Center Madhogarh
District Jalaun, he appeared in the counselling but as the clinical seat was not available hence he
did not opt for admission in P.G. Course in that year. Now in view of the Government Order dated
26.05.2015, the Community Health Center Madhogarh District Jalaun has not been notified as
situated in the remote, distant and backward area hence 'no objection certificate' to appear in the
counselling in U.P. PGMEE 2015 could not be issued in his favour.

That in the Government Order dated 28.02.2014, it has been specifically
mentioned that all MBBS degree holder medical officers posted in PHC/CHC situated in remote,
distant and backward areas, who have completed in P.G. Courses earmarked quota of 30% seats
for the PMHS cadre on specified terms and conditions.
328 INDIAN LAW REPORTS ALLAHABAD SERIES
That in view of the observations of Hon'ble Court a decision has also been taken at
the government level to inform new appointees about the said benefits of working/posting in rural
areas by adding a clause in their appointment letter itself so that they become fully aware of the
terms and conditions of availing the earmarked quota at the time of joining itself. The direction
given to Chief Medical Officers vide G.O. dated 26.10.2015 will also be brought to their notice
mentioning that if despite their wishes, CMOs do not post them in a rural PHC/CHC they can make
a representation to the government for seeking redressal.

That it is expedient in the interest of justice that this Court may graciously be
pleased to take the present II-Supplementary Counter Affidavit on record, in compliance of the
order dated 25.01.2016 passed by this Court in the above noted writ petition."

8. On these materials, that have been before us, the matter has been taken up for final
hearing and disposal with the consent of the parties concerned and on 9.2.2016 after hearing
learned counsel for the parties judgment has been reserved and 29.2.2016 was the date, fixed for
delivery of the judgment but during the course of preparation of judgment it was felt that it would
be much more appropriate that Medical Council of India (hereinafter referred as to the 'MCI')
should also be heard in the present case and, accordingly, this Court on 29.2.2016 proceeded to
pass the following order;

"The judgment was reserved to be delivered today but during the course of
preparation of the judgment the Court felt that it would be much appropriate that Medical Council
of India should also be heard in the matter.

We accordingly proceed to ask Sri R.K. Ojha, Senior Advocate to supply a copy of
the writ petition upon Sri Avnish Mishra, Advocate who represents Medical Council of India
contends that he will study the matter and obtain requisite instruction in the matter and then
address the Court.

Put up this matter in computer list on 02-03-2016 at 2:00 PM for further hearing.
Counsel for the Medical Council of India as well as learned Standing Counsel should obtain
instructions with regard to documents that are being supplied by Sri R.K.Ojha, Senior Advocate so
that the matter can be further argued and considered."

9. Thereafter, on receipt of copy of writ petition MCI under letter dated 2.3.2016 ha
proceeded to forward the following instructions in the matter and relevant extract of the said
instructions are as follows:

"No.MCI-7(10)/2015-lEGAL/(11878)/171899 Dated:02/03/2016
BY EMAIL

Mr. Avanish Mishra
Advocate
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
329
41, H.I.G.,3
Circular Road, Allahabad,
Uttar Pradesh-211001
Contact: +91 9838337548

Subject: Dr. Vivek Kumar Sachan v/s The State of U.P. and Ors- Civil Misc. Writ
Petition No.35050 of Year 2015 in the Hon'ble Allahabad High Court at Allahabad-Reg.

Sir,

This is with reference to your email dated 01.03.16 whereby you had forwarded the
aforesaid Petition. Further, you had informed that the Hon'ble High Court had vide its order dated
02.03.16 had directed you to obtain instructions in the matter.

2. You had sought specific comments on the order dated 22.01.2014 issued by the
State Government wherein the State Government has sought to reserve 30% seats in all
postgraduate courses in Government Medical Colleges for medical officers who have served in
CHC/PHC in remote, difficult and backward areas for a minimum period of three years. You had
also referred to the information brochure issued by the King George Medical University, U.P.,
Lucknow for U.P. Postgraduate Medical Entrance Examination, 2015 wherein provisions has been
made inter alia for admission of in service candidates also.

3. In this regard it may be respectfully submitted to the Hon'ble High Court that
admissions to all postgraduate courses in modern medicine is required to be made in accordance
with the provisions of Postgraduate Medical Education Regulations, 2000 in all medical
colleges/medical institution falling within the purview of the Indian Medical Council Act, 1956.
The Hon'ble Supreme Court in its judgement dated 12.01.2015 in the matter of Sudhir N. & Ors
V/S State of Kerala & ors. - Civil Appeal No.297-298 of Year 2015 in SLP (Civil) No.1312113122 of 2011 has observed as under:

"12. Regulation 9 of the Regulations framed under the MCI Act, inter alia,
provides that admission to post-graduate medical courses shall be made strictly on the basis of inter
se academic merit of the candidates. The Regulation further stipulates the methodology for
determining the academic merit of the candidate. It reads:

"Selection of Postgraduate Students (1) (a) Students for Postgraduate medical
courses shall be selected strictly on the basis of their inter-se Academic Merit.

(b) 50% of seats in Post Graduate Diploma Course shall be reserved for Medical
Officers in the Government service, who have served for at least three years in remote and difficult
areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in
remote and/or difficult areas.
330 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) For determining the "Academic Merit", the University/Institution may adopt
the following methodologies:

(a) On the basis of merit as determined by a ''Competitive Test' conducted by the
state government or by the competent authority appointed by the state government or by the
university/group of universities in the same state; or

(b) On the basis of merit as determined by a centralised competitive test held at the
national level; or

(c) On the basis of the individual cumulative performance at the first, second and
third MBBS examinations provided admissions are University wise; or

(d) Combination of (a) and (c). Provided that wherever ''Entrance Test' for
postgraduates admission is held by a state government or a university or any other authorized
examining body, the minimum percentage of marks for eligibility for admission to postgraduate
medical course shall be 50 percent for general category candidates and 40 percent for the
candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes.

Provided further that in Non-Governmental institutions fifty percent of the total
seats shall be filled by the competent authority notified by the State Government and the remaining
fifty percent by the management(s) of the institution on the basis of inter-se Academic Merit.

Further provided that in determining the merit and the entrance test for
postgraduate admission weightage in the marks be given as an incentive at the rate of 10% of the
marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of
the marks obtained.'"

4. Further, the Hon'ble Supreme Court in the same case has held that:

"14. Regulation 9 is, in our opinion, a complete code by itself inasmuch as it
prescribes the basis for determining the eligibility of the candidates including the method to be
adopted for determining the inter se merit which remains the only basis for such admissions. To the
performance in the entrance test can be added weightage on account of rural service rendered by
the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. Suffice
it to say that but for the impugned legislation making an attempt to change the basis on which
admissions can be made, such admissions must, in all categories, be made only on the basis of
merit as determined in terms of the provision extracted above. That method, however, is give a gobye by the impugned legislation when it provides that in-service doctors shall be granted such
admission not on the basis of one of the methodologies sanctioned by Rule 9(2) of the Rules but on
the basis of inter se seniority of such candidates. The question is whether the State was contempt to
enact such a law. Our answer to that question is in the negative......"
4 All. Dr. Surya Kant Ojha & Ors. Vs State Of U.P. & Ors.
331
5. Therefore, on behalf of the Council it may be respectfully submitted to the
Hon'ble High Court that:-

Firstly, it is permissible in accordance with the P.G. Regulations, 2000 to reserve
50% of the seats in Postgraduate Diploma curse for Medical officers in the Government Service,
who have served for atleast 3 years in remote and difficult areas. Further, after acquiring the P.G.
Diploma the medical officers are required to serve for two more areas in remote and/or difficult
areas.

Secondly, it is for the State Government to notify, which are are remote and/or
difficult areas.

Thirdly, the medical officers who has served for a period of three years in remote
and difficult area are entitled for 10% of marks as an incentive for each year of service in remote
and difficult area upto the maximum of 30% of marks obtained. These marks are in competitive
entrance examinations and are added once such candidates are eligible to be drawn in the inter se
merit after obtaining the minimum percentage of marks required to be eligible in their respective
categories.

Fourthly, the medical officers in the Government service have been provided for a
benefit under the Post Graduate Medical Education Regulation, 2000 of reserving 50% of the seats
in Post Graduate Diploma Courses and that such a benefit cannot be extended to them under the
postgraduate degree courses.

Fifthly, there are limited number of seats available in postgraduate degree courses
and in case the reservation provided for medical officers in the Government service is extended to
various postgraduate degree courses ,there would be hardly any seat left for open category students
who seek admission to various postgraduate degree courses.