Mr. Rajesh Shankar. J. - (1.) The present writ petition has been filed for quashing the part of notification dated 23.03.2018 issued by the respondent no. 5 -Jharkhand Combined Entrance Competitive Examination Board, whereby the remote/difficult areas have been categorized in terms of proviso to Regulation 9(IV) of the Medical Council of India Post Graduate Medical Education Regulations, 2000 (hereinafter referred to as "Regulations, 2000") for grant of incentive marks to in-service doctors for the purposes of taking admission based upon the merit list of National Eligibility-cum-Entrance Test, 2018 as the same is in the teeth of the judgment of the Hon'ble Apex Court rendered in the case of "Dr. Amit BagraOrs. v. State of RajasthanOrs." (SLP No. 11692 of 2017) decided on 15.12.2017. It has further been prayed for issuance of direction upon the respondent authorities to forthwith constitute a committee for the purpose of identification and categorization of remote/difficult areas which would be beneficial in awarding incentive marks to the in-service doctors and also can be applied to other beneficial and welfare schemes. Further prayer has been made for issuance of direction upon the respondents to convert the all India quota seats which are remaining vacant after the last date of joining i.e., 10th May, into State quota and also the remaining State quota seats after second counselling of State and to admit the students as per the combined merit list in terms of the Appendix provided under the Regulations, 2000. It has also been prayed for issuance of direction upon the respondents to adhere to the provisions of the Regulations, 2000 specifically Clause 9(IV), wherein it has categorically been provided that the reservation of seats in medical colleges for respective categories shall be as per applicable laws prevailing in State/Union Territories based upon the all India merit list as well as the State merit list and the candidates shall be admitted to post graduate courses from the said merit lists only.
(2.) The factual background of the case as stated in the writ petition is that the petitioners having been completed their MBBS Degree programme appeared in the National Eligibility-cum-Entrance Test, 2018 (NEET, 2018) and are seeking admission to the courses in PG (Medical). Proviso to sub-clause (IV) of Clause 9 of the Regulations, 2000 envisages awarding of 10% marks for each year of service rendered in remote/difficult areas upto the maximum 30% of the marks secured in NEET examination. For the purpose of identification and categorization of the remote/difficult areas to be notified by the State Governments, the Hon'ble Apex Court has formulated certain guidelines in a recent judgment rendered on 15.12017 in the case of "Dr. Amit Bagra"(supra). The Ministry of Health and Family Welfare, Government of India requested the National Health System Resources Centre (NHSRC) to conduct an independent survey for categorization of difficult, most difficult or inaccessible areas and evolve a set of criteria. The NHSRC conducted survey across the country and based upon the said survey and after detailing the principles for categorization and other aspects, the inaccessible, difficult and most difficult areas of different states were identified including the State of Jharkhand. The NHSRC has also conducted a survey in the State of Jharkhand according of which, out of 515 rural health identified areas, the State Government had identified only 3 areas to be most difficult and 5 areas to be difficult whereas the NHSRC identified 24 areas which can be termed as most difficult and 64 areas which can be termed as difficult. The State Government has, however, issued notification dated 23.03.2018 under the signature of the respondent no. 5, whereby the remote areas have been categorized in terms of proviso to Clause 9(IV) of the Regulations, 2000 for grant of incentive marks to in-service doctors for the purpose of taking admission in P.G. courses based upon the merit list of NEET, 2018. According to the petitioners, the State Government has taken mechanical decision declaring all the areas which fall outside the jurisdiction of a Nagar Nigam/Nagar Parishad/Nagar Panchayat as defined under the Jharkhand Municipal Act, 2011 to be remote/difficult areas.
(3.) The learned Senior Counsel for the petitioners submits that the decision of the State Government is in complete violation of the guidelines evolved by the Hon'ble Apex Court in the case of "Dr. Amit Bagra"(supra) and is also contemptuous in nature as no survey has been conducted before reaching such a decision. It is further submitted that the similar issue arose in the State of Tamil Nadu, wherein the State Government had constituted a committee for identifying the remote and difficult areas for the purpose of grant of incentive marks to the in-service doctors and only after getting the report from the committee, the remote area was categorized. The State of Uttar Pradesh has also taken steps in order to identify and categorize areas as per the standard of NHSRC which would be evident from the letter dated 21.02.2018 issued by the Directorate, Medical and Health Services, Uttar Pradesh addressed to all the Chief Medical Officers. It is further submitted that the issue of identification and categorization of the remote/difficult areas cropped up in the State of Rajasthan as well and the Rajasthan High Court vide judgment dated 20.03.2018 passed in S.B Civil Writ Petition No. 5255 of 2018 has been pleased to set-aside a similar notification whereby the State Government had identified the remote/difficult areas which were not in consonance with the orders passed by the Hon'ble Apex Court from time to time. The State of Jharkhand has failed to identify and categorize the remote/difficult areas as per the standard laid down by NHSRC and has issued notification in violation of the judgment rendered by the Hon'ble Apex Court in this regard as no survey has been conducted before arriving at a decision that all those areas which fall outside the jurisdiction of Nagar Nigam/Nagar Parishad/Nagar Panchayat would be considered as remote/difficult areas. It is also submitted that as per the provisions of the Jharkhand Municipal Act, 2011, a rural area is supposed to transit into semi-urban area and the semi-urban area into urban area in due course and as such, no straitjacket formula can be adopted for declaring an area to be a remote/difficult. ;