ARUN TANDON,DAYA SHANKAR TRIPATHI,J. - (1.) We had passed a detailed order on 15.05.2017 noticing the issues involved in respect of admission to Post Graduate Medical Courses against the State quota seats on the basis of the merit to be prepared in terms of the NEET Examination. The order reads as follows:- "Heard Mr. P.S. Chauhan, learned counsel for respondent no.1. Because of repealed circulars issued by the State of Uttar Pradesh on the asking of the Director General Medical and Training, the entire process of counselling for admission to MDS courses on the basis of the National Eligibility cum Entrance Test (hereinafter referred to as NEET-MDS 2017) has been put in jeopardy. The students seeking such admissions are being made to run from pillar to post and ultimately approach this Court under Article 226 of the Constitution of India. NEET-MDS for admission to the MDS courses 2017 was conducted by National Board of examination. In the information bulletin published for the purpose in respect of the State quota seats, it was provided as follows: "1. Who will be eligible for State quota seats? Candidates who are in possession of BDS degree/Provisional Pass Certificate recognised as per the provisions of the Indian Dental Council Act 1956 and possess permanent/provisional registration certificate of BDS qualification issued by the Dental Council of India/State Dental Council and have completed one year of internship/likely to complete on or before 31 March 2017 and has qualified NEET-MDS 2017. The eligibility for pursuing MDS courses shall be as per the rules, regulations, reservation policies, domicile criteria and guidelines of the concerned States/UT. 2. Who will determine the final merit list for State quota seats? The merit list for State quota seats will be determined by the concerned State authority using NEET-MDS 2017 scores and as per applicable Regulation and/or their eligibility criteria, regulations, guidelines, reservation policy, benefits for In-service candidates, rural posting(if applicable) etc. 3. Who will be conducting the counselling for State quota seats/Private Dental Colleges/Institutes? Counselling for various categories of State quota seats shall be conducted by the concerned State Dental Directorate/counselling authority(s) of the State/UT/Private Universities/Dental College/Institutions. 4. Will there be any weightage for in service candidates in State quota seats and how it will be reflected? Weightage for In-service candidates or rural posting in State quota seats shall be decided by the States/UT themselves as per applicable Regulation and/or their qualifying criteria, and applicable guidelines etc. NBE has no role in counselling/allotment of seats. 5. How many seats shall be available for all States? Candidates are advised to visit www.dciindia.org.in for the latest information about various MDS courses and seats available at various Dental Colleges/Institutes. 6. What are the reservation policies for various categories for State quota seats/Private Dental Colleges? NBE shall be providing only the data of candidates and their results without applying the reservation prevalent in the States/Union territories of India/Private Dental Colleges/Institutes/Universities. The merit list/category wise merit list for the States/UT/Private Dental Colleges/Institutes/Universities concerned shall be generated by the States/UT/Universities themselves as per applicable Regulation and/or their qualifying criteria, applicable guidelines and reservation policies." From the records of the present writ petition as well as from the stand which has been taken on behalf of State and Director, it is apparent that a policy decision was taken by the State Government as contained in the Government Order dated 10.03.2017, which defines the eligibility as well as non-eligibility conditions. We are concerned with the non-eligibility conditions. The same are being reproduced herein below: JUDGEMENT_302_LAWS(ALL)5_2017.jpg It will be seen that under the said policy, the State Government took a decision that such students who had done their MBBS/BDS final examination from Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi or from medical college/university/institute situate outside the State of Uttar Pradesh, would not be eligible for admission to the medical colleges/medical hospitals/medical institutes. It has been explained to the Court with reference to the aforesaid conditions that all the students who had done their MBBS/BDS final year examination from Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi and medical institutes and universities situate outside the State of Uttar Pradesh would not be eligible for admission to Government Medical Colleges, Government Hospitals and Government Institutes meaning thereby that their claims would be considered only against the seats which are available in private medical colleges/private universities. So far as the candidate in service of the State of Uttar Pradesh only MBBS/PMHS cadre is concerned. It was provided that they would be entitled to weightage and their merits shall be determined afresh after addition of such weightage to the marks received in the NEET examination. Students who were in service in the State of Uttar Pradesh had passed their MBBS/BDS final year examination from places outside the State of Uttar Pradesh were to be considered against seats in private medical colleges/universities. This led to the filing of the present writ petition no.17183 of 2017. The State Government came out with afresh policy decision dated 27.03.2017. It amended the clause pertaining to non-eligibility conditions wherein students of MBBS/BDS who had done their MBBS/BDS final year examination from Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi. They were held eligible for the counselling for admission to State Dental Colleges, State Medical Hospitals and State Institutes. So far as the students of Aligarh University is concerned, it was mentioned that the same is subject to the orders which may be passed by the High Court in writ petition nos.6783 of 2008 and 1324 of 2005. Thus, it will be seen that the restriction placed on the candidates who had done their MBBS/BDS final year examination from outside the State of Uttar Pradesh was still maintained in the matter of admission to Government Medical Colleges, Government Hospitals and Government Institutes. A fresh circular was issued by the State Government dated 31.03.2017. It was clarified that the students who have done their MBBS/BDS final year examination from Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi would be entitled for counselling only against the seats which are available in their own institutes namely Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi respectively. Thus, other students who had passed their MBBS/BDS final year examination from Government Medical Colleges and Universities including these in the private institutes within the and outside the State of Uttar Pradesh would not be eligible for admission against the seats which are available in Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi. Reference may also be held to the notification published by Medical Council of India dated 08.03.2017 for the amending Postgraduate Medical Education Amendment Regulations 2016, it has specifically been provided as under: "9(2) For determining the 'Academic Merit', the University/Institution may adopt the following methodology:- (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 authorised 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. The following proviso is added after clause 9(2)(d) in terms of Gazette Notification published on 17.11.2009. "Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks may 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." The Chief Secretary of State must examine as to whether after the amendment in the MCI Regulations referred to above is it permissible for the State to treat the students who have done their final year examination of MBBS/BDS degree course from institutes having due recognition from UGC from places outside the State of Uttar Pradesh to be declared as ineligible for admission to the post-graduate seats available in State Medical Colleges/Universities and Institutes and their claims for counselling being confined to only private medical colleges and universities. Similarly, the Chief Secretary must examine as to whether in House Members of PHMS cadre who have done their MBBS from outside the State of Uttar Pradesh are to be treated differently viz-a-viz the new entrance covered by the aforesaid clause and if so on what basis. The Chief Secretary must examine as to whether adoption of such eligibility conditions does not in itself frustrate the very purpose of conducting a NEET examination on all India basis as well as the Regulations as amended in 2017 for a common counselling being done for admission to post-graduate courses. The Chief Secretary must explain as to how the State can be permitted to alter the conditions of addressing on the letter of Director General as and when it so desires or there has to be a comprehensive policy before the start of the counselling itself. Since the career of the students is involved, we are of the opinion that Chief Secretary must respond to the queries as made at the earliest possible, in any case before 23.05.2017, when the matter shall be listed next. The Chief Secretary is also directed to ensure that whosoever heads the Department is competent at least applies his mind before recovery changes in the policy decision. Uncalled for litigation generally not only frustrates the students who have succeeded in the NEET examination, and have higher merits it also leads to waste of valuable time of the Court. Put up on 23.05.2017."
(2.) The Chief Secretary of the State has filed an affidavit and in paragraphs 4, 7, 8, 9, 10, 12 and 14 has stated as follows:- "4. That the only exception to the above deduction is of the candidates who belong to the PMHS Cadre, in whose case it is irrelevant as to whether they have done their MBBS/BDS course from Uttar Pradesh or out-side of Uttar Pradesh or even from abroad. For the candidates of the PMHS Cadre the only requirement is that they should be member of the cadre who have been appointed upon selection through the Commission. Such candidates are governed by the Government Order dated 28.02.2014 and are also entitled to weightage as per the applicable Regulations framed by the MCI. 7. That medical education in our country is regulated by Medical Council of India which is a statutory body set up under the provisions of the Act. The said body, for the purposes of regulating Post Graduate Medical Education has framed Post Graduate Medical Education Regulations, 2000. The said Regulations do not provide for any discrimination with respect to MBBS/BDS Degree obtained by a candidate from any of the States of our country and recognises many a Graduation in Medical Education from outside India, as well. The eligibility criteria for admission to any Post Graduate Medical Education is to be covered by Post Graduate Medical Education Regulations 2000. 8. That Medical Council of India Post Graduate Medical Education Regulation 2000 which govern the field of Post-graduation in Medical Education in Regulation 9(iv) provide thus :- "9. Procedure for Selection of Candidate for Post Graduate Courses shall be as follows :- "(i) ........................... "(ii) ........................... "(iii) ........................... "(iv) The reservation of seats in Medical Colleges/Institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An All India merit list as well as State-wise merit list of eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility cum Entrance Test and candidate shall be admitted to Post Graduate courses from the said merit list only; Provided that in determining the merit of candidate who are in service of Government/Public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive @ 10% of the marks obtained for each year of service in remote and/or difficult areas up to a maximum of 30% of the marks obtained in National Eligibility Cum Entrance Test. The remote and difficult areas shall be as defined by the State Government/Competent authority from time to time. ......." 9. That the Hon'ble Supreme Court while considering the case of counselling with respect of PG NEET 2016 in SLP (Civil) 13832 if 2016 (State of U.P. v. Dr. Dinesh Singh Chauhan) passed an interim order on 12.05.2016, the operative portion of which reads thus :- "In the circumstances, we direct that the State Government shall, as expeditiously as possible, revise and redraw the merit list of candidates keeping view Regulation 9 of the Medical Council of India Post Graduate Medical Education Regulations, 2000 and giving to the eligible candidates such weightage as may be due to them for rendering service in notified rural and/or difficult areas and to grant admission to candidates found suitable for the same on the basis of such redrawn merit list." 10. That the aforesaid SLP, which was converted into Civil Appeal No. 8047/2016 (arising out of SLP No. 13832/2016) (State of U.P. v. Dr. Dinesh Singh Chauhan) was finally disposed off by the Hon'ble Supreme Court vide judgment and order dated 16.08.2016, operative portion of which judgment is reproduced here below for ready reference of this Hon'ble Court :- "39. In so far as Writ Petition No. 372/2016 even that should fail as we have held Regulation 9 to be a complete code and a provision for determining inter se merit of the candidates including by giving weightage of marks as incentive to eligible in service candidate who have worked in notified remote or difficult areas in the State, which is just, reasonable and necessary in the larger public interest." 12. That similarly in Post Graduate Medical Education, 50% of the total number of seats in State Medical Colleges are pooled in the All India quota and by centralized counselling process admissions are sought on those 50% pooled seats by Director General Health Services, New Delhi and students from All India can apply and seek admission against these pooled seats. The remaining 50% of the seats to be filled up only by the students who have done their MBBS courses from the State of Uttar Pradesh only. The admission of in house PMHS doctors are governed by Government Order dated 28.02.2014 issued by the Medical and Health Department of the State of U.P. 14. That since the Hon'ble Supreme Court has upheld the validity of Regulation 9 and has categorised it as a complete code and a provision for determining inter-se merit and grant of weightage to in service candidates who have worked in notified, remote or difficult areas in the state, and there is nothing in the Post Graduate Medical Education Regulations 2000 to create a divide or a distinction between such of the in-house candidates who may have done their graduation from outside the State, therefore, no such divide is created at the level of the Director General Medical and Health while considering the cases of in-house candidates and giving weightage to them and thereafter recommending the name to the Director General Medical Education for counselling."
(3.) From a simple reading of the aforesaid it is apparently clear that the students, who have passed their MBBS/BDS Examination from any medical college in the State of U.P., are entitled to be admitted to MDS Courses on the basis of their merit in the NEET Examination in institutions situate in the State of U.P. including the Central Universities, namely, Banaras Hindu University and Aligarh Muslim University. It is further clear that so far as the candidates, who are in service, namely members of the PHMS cadre are concerned, they are only entitled to weightage having regard to the number of years of service in rural areas. They cannot be granted any benefit of being admitted to seats within the State quota, if they had done their MBBS from outside the State of U.P.;