In view of ensuring ‘Right to Health’, adequate medical facilities and an adequate number of doctors in the rural areas, an important order has been passed by the Patna High Court in the current circumstances of a ‘Pandemic’. The Order is in line with judiciaries endeavor to fulfill its obligation towards securing social justice for the poor and especially for the people living in rural parts of our country.
The Court has essentially said that to determine the academic merit of (Doctors) candidates, merely securing high marks in ‘NEET’ is not enough. The academic merit of the candidate must also reckon the services rendered for the common or public good. Having served in rural and difficult areas of the State for one year or above, the incumbent having sacrificed his career by rendering services for providing healthcare facilities in rural areas, deserves incentive marks.
A Division Bench comprising of Chief Justice Sanjay Karol ordered,
“The Chief Secretary, Government of Bihar shall, with the normalization of the , ensure that vacancies in the rural/ remote/ difficult areas are filled up to the maximum extent possible, either by transfer or expediting the process of recruitment.”
The court took notice of the fact that in the state out of 11645 sanctioned posts of doctors, 8768 are lying vacant, out of which 5674 falls only in the difficult/remote/rural areas. And despite the same, as stated on an affidavit by the State, the Department has chosen not to grant incentive of weightage in marks in ‘NEET test’, to the doctors who were posted in the rural/remote/difficult areas. The Court directed the concerned authorities to redraw the merit list strictly in accordance with the law which in the instant case were ‘two notifications’ issued by the State, the said notifications granted benefit for service in rural areas.
The State had justified its decision of not granting the above benefit stating that “the merit would stand compromised and would adversely affect the in-service doctors posted at urban areas.”
However, the Division Bench disagreed, stating,
“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?“..
…”Incentivizing 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. Under the Constitution all power must be exercised to subserve 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 marginalized ones living in the remotest corner of the State.“
The Division Bench opined that if the State Government has found that there are circumstances warranting the need for such incentives, “then the State could not and should not deny such incentive.””Undoubtedly discretion of according benefits, vests with the Government, but then, its exercise has to be based on some rational and not in an arbitrary and capricious manner. There is no logic of depriving the doctors posted in the rural areas of such benefits.”
The Court went on to pull up the Bihar Government for having admitted, through notifications issued in 2013 and 2014, that there were difficult/ remote areas in need of doctors on the one hand while denying to provide incentives to fill in these vacancies on the other.
“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. Such a stand is both immoral and illegal.”
“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. Mere non-enforcement of a right by an individual or its non-conferment upon by the State would also not be a reason for the State to adopt such a dubious plea.”
The Court proceeded to dismiss the State’s appeals and issued the following directions:
- All candidates who have participated in the selection process, including the writ petitioners and are otherwise eligible, would be entitled to the benefit of 2013 and 2014 Notifications issued by the Government of Bihar;
- Provision in the prospectus to the contrary is held to be illegal and void
- The Bihar Combined Entrance Competitive Examination Board shall redraw the merit list strictly in accordance with law by granting benefit of 2013 and 2014 Notifications after accounting for the certificates/proof of eligibility, for grant of incentives in terms of Regulation 9(IV) issued by the MCI.
LawUmbrella 