The Patna High Court pulled up the state government for choosing not to grant incentive of weightage in marks, to be added in computing the merit on the basis of National Eligibility-cum- Entrance Test (NEET), to the in-service doctors posted in the rural/remote/difficult areas, for the reason that "the merit would stand compromised and would adversely affect the in service doctors posted at urban areas".
The Chief Justice-led bench directed the Bihar Combined Entrance Competitive Examination Board to redraw the merit list for post graduate medical courses.
The Medical Council of India, in its Regulations introduced in 2012, had required that in determining the merit of candidates who are in service of Government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in rural, remote and/or difficult areas up to the maximum of 30% of the marks obtained in NEET. So stipulates the Proviso to Regulation 9(IV) on 'Procedure for selection of candidate for Post- graduate courses'.
Regarding the issue as to whether the word 'may' has to be and should be construed to read as 'shall', the bench, placing reliance on two the Apex Court directly dealing with the issue in hand, reitrarted the provision of giving weightage under Regulation 9 (IV) to be an enabling one, and that there is no right which "inheres" in the government doctors to compel the state government for providing the incentive.
"Undoubtedly, discretion of according benefits vests with the government but then its exercise has to be based on some rationale and not in an arbitrary and capricious manner," the court noted.
The division bench was of the view that the State cannot be allowed to argue that the benefit of Regulation cannot be conferred only for the reason that it would affect the interest of doctors serving in urban areas. It found no logic of depriving the doctors posted in the rural areas of such benefits. "And all this, despite the State itself having issued a Notification(dated 27.08.2013) conferring such benefits upon them. Yet, strangely, if not collusively, it has taken a specious plea of interpreting such a Notification limited only to the identification of areas in terms of the Regulation and not taking a decision conferring benefits in terms thereof", it observed. It proceeded to remark, "Such a stand is both immoral, illogical and illegal. Mere non enforcement of a right by an individual or its non-conferment by the Department, no matter for how long, would also not be a reason for it to adopt such a dubious plea".
Continuing, the court reflected that the Regulation 9(IV) does not envisage twin stage i.e. (a) first identification and (b) then conferment. "The language is simple and clear. The power to grant incentive is discretionary, but then having done so, State cannot be allowed to turn around and contend to the contrary, notwithstanding as to whether such benefit was neither claimed nor conferred upon any individual", it ruled.
The bench employed strict terms in oberving that "Every trial is a voyage of discovery in which truth is the quest... Shockingly, in the course of discovery of truth, we find the State to have breached its Dharma of acting in public interest for the benefit of teaming millions living in the rural areas, but also not maintaining its neutrality, in the accomplishment of the constitutional goals and determination of rights inter se private parties"
"Right to good health and access to basic facilities of health is now is an important facet of right to life under Article 21 of the Constitution. Justice which has to be social cannot be limited only to sub-serve the interest of the affluent, the rich and the empowered", it stated.
The Court found the Department of Health, Medical Education and Family Welfare to have adopted a partisan approach, ensuring that the most marginalised and deprived ones are not benefitted of the medical infrastructure and facilities in the rural parts of the State.
"Can a Welfare State even adopt such a stand more so in the absence of any plea or material to indicate absence of doctors or higher percentage of vacancy of the posts in the urban areas. Incentivising posting of doctors/medical staff in the specified areas can only be in public interest and for public good and not the other way round. Is it that with the posting of Doctors in the urban areas the general health of the people there has improved? Do these Doctors cater to the need of Government employees? Is it that with their posting in the urban areas, referral to the private hospitals has stopped? Is it that the Government has taken a policy decision of stopping all medical reimbursement of expense incurred by the Government employees for undertaking treatment in private institution?", the bench asked, containing to say, "To our understanding it is not so".
So the Court wondered how posting of majority of the doctors in the urban area helps anyone, "save and except perpetuate vested interests". "Under the Constitution all power must be exercised to sub-serve public interest, for public good and for a public cause. If only such benefits are accorded would the Doctors voluntary opt to serve the poor, the needy, the deprived and the marginalised ones living in the remotest corner of the State", it stated.
The bench narrated that Bihar is the most populated State of the country, having highest density of population ratio, with a rural based demography comprising of remote, rural and hilly areas, with little bit of cosmopolitan culture or area. The health care facilities in the remote and difficult areas of the State, to say the least, are desirable, also for want of posting of adequate doctors. Undisputedly, in Bihar out of 11645 sanctioned posts of doctors, 8768 are lying vacant, out of which 5674 fall only in the difficult/remote/rural areas. As against 1544 doctors posted in the urban areas only 1333 are posted in the rural areas, reflective of the iniquitous and lopsided welfare health policy of the Department.
Towards the end of its 50-page order rendered on Thursday, the court said the Chief Secretary of the state "shall, with the normalisation of the current pandemic COVID 19, ensure that the vacancies in the rural/remote/difficult areas are filled up to the maximum extent possible either by transfer or expediting the process of recruitment".
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