[PG Medical counselling] Doctors serving as regular employees in State Department are 'in-service' candidates: Madhya Pradesh High Court

The Madhya Pradesh High Court on Friday held that MBBS-qualified doctors rendering their services as regular employees in the State Department of Health Services fell in the category of "in-service candidates" for the purpose of postgraduate medical courses [Dr Vijendra Dhanware v. State of Madhya Pradesh]..A Bench of Justices Sujoy Paul and Arun Kumar Sharma thus asked the State to consider their claim to be included amongst those entitled for the benefit of 30 per cent reservation earmarked for in-service candidates, according to a government circular dated August 19, 2021 and in accordance with law."The respondents have erred in not treating them in the said category," the Court held..The petitioners had sought a revision of a list prepared by the State with regard to the postgraduate medical counselling by including them as “in-service candidates”. Further, it was sought that the petitioners be made entitled to 10 per cent additional marks by treating their place of posting for the last year-and-a-half as a “difficult area”..It was the petitioners’ submission that despite being entitled to be considered against the reserved seats, they were treated as eligible only for open seats, and the same was bad in law and ran contrary to admission rules. .Further, the petitioners argued that they should be included in the policy providing additional incentive to those working in rural, remote or difficult areas. They explained that the Indore and Harda District Hospitals were also difficult areas since the petitioners were rendering their services 24x7 during the pandemic, which amounted to “performing difficult service”. .Reliance was placed on several case laws to submit that a provision of law may be valid at the time of its issuance, but may lose its relevance by efflux of time. Thus, change in circumstances would be a relevant factor to examine the correctness of a circular. “During Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area,” it was contended. .However, the respondents submitted that Covid was not a situation where a district hospital should be treated as a difficult area.Further, it was stated that prescribing a standard of education was within the domain of Medical Council of India (MCI) and the State government could not legislate contrary to its regulations..After hearing all sides, the Court found that the there was no doubt that the definition of “in-service candidate” was wide enough to include the medical officers, and since the petitioners were admittedly working as medical officers in district hospitals there was no reason to not consider them as a separate channel of entry..However, on the point of giving incentive to the petitioners on the same footing as those who worked in rural, remote and difficult areas, the Court refused, stating that Harda and Indore did not find place in the Schedule.“The order dated 28.2.2019 is a policy decision taken by the Government which cannot be lightly disturbed. The policy decision can be interfered with on limited grounds,” the order said..The Division Bench stated that when a policy decision was not even challenged, the same must be read as it was and the Court could not rewrite and insert something which was not already there.“The State Government is best suited to take a policy decision and this Court has no expertise to re-write or insert something in it,” the Court made it clear..Therefore, it was held that “difficult area” did not include “difficult services” and the question of grant of incentive marks to the petitioners thus did not arise..Advocate Siddharth Gupta appeared for the petitioners. The respondents were represented by Government Advocate Piyush Dharmadhikari and Advocate Anoop Nair..[Read Order]