TMI Blog2012 (3) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court have outnumbered the writ petitions and if this is not what is generally experienced in an adversarial litigation one further point also needs to be mentioned that the interim order was not challenged by any of the respondents to the writ petitions. Strangers felt aggrieved by the interim order, obtained leave of the Court and filed numerous appeals at different points of time. This is not to speak of the interveners in support of the appellants. Since the challenge of all these appeals is to the same impugned order of the learned single Judge they were heard analogously and are being disposed of together. The Post Graduate Medical Education Regulations, 2000 were framed by the Medical Council of India under section 33 of the Indian Medical Councils Act, 1956. The said Regulations aimed at laying down the rules and procedures of admission to various post-graduate courses, post graduate curriculum, selection of post-graduate students, duration of their rtaining and a host of other subjects dealing with various aspects of post graduate medical teaching in India. In 2009 new amending Regulations, Part III, were made by the said authority making certain additions, modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Council of the concerned University; the said notification was ultra vires the proviso to Articles 162 read with 154 and 14 of the Constitution of India and sections 32 and 33 of the Indian Medical Councils Act; it violated Articles 14 and 16 of the Constitution of India and created a class within a class; the notification betrayed patent discrimination on geographical lines; awarding marks by way of an incentive to candidates working in remote districts was unjust; and the notification caused discrimination with regard to caste, creed, colour and place of transfer, posting and the like. After hearing the learned Advocates appearing for the respective parties by an order dated January 19, 2012 the learned single Judge admitted the writ petitions and inter alia directed that until further orders the impugned notification dated November 23, 2011 would remain stayed after recording the Court's prima facie satisfaction that one of the points raised during the course of submissions which is to the effect that the notification, if applied, would amount to creating a class within class . The learned single Judge considered that it required consideration. It was, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a statute or a delegated legislation could be challenged. A more general line of attack was that there was always a presumption of a constitutionality of a statute unless it is declared void by the court and a slightly more pointed attack was that the notification was a follow-up of the delegated legislation and that an interim order could not be made unless the operation of the impugned delegated legislation viz., the proviso to Regulations 9(2)(d) of the Regulations was also stayed. In support of their contentions, the appellants have relied on the case of Transmission Corp. of A.P Ltd. v. Lanko Kondapally Power (P) Ltd. reported in (2006) 1 SCC 540; Fargo Freight Ltd. v. Commodities Exchange Corporation, reported in (2004) 7 SCC 203; Public Service Tribunal Bar Association v. State of U.P, reported in AIR 2003 SC 1115; Greater Bombay Coop Bank Ltd. v. Union Yarn Tex (P) Ltd., reported in (2007) 6 SCC 236; Sate of Bihar v. Bihar Distilleries Ltd., reported in (1997) 2 SCC 453 and Dasiya Murpokku Dravida Kazighama v. Election Commission of India, reported in AIR 2011 SC 1128. The case of Fargo Freight Ltd. (Supra) is about to the grant of an interim order. It was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en that they were serving as doctors under the department of Health and Family Welfare, Government of West Bengal for several years and are posted at different rural/primary health centres under different districts. According to them most of such postings are in areas which are remote and difficult apart from their being backward also. The notification, dated November 23, 2011, inter alia, declared the remote and difficult areas in the State of West Bengal and eleven districts were declared as that. It was contended by the respondents that in respect of posting and transfer to difficult areas the writ petitioners had no say and from the same panel some were posted in one district and some at others. The result of declaring some areas as remote and difficult would be that doctors serving in these areas will get the benefit of the weightage whereas doctors posted in other districts would be deprived of that. The respondents have also made out a case that some of the more obvious remote areas have been left out of the operation of the notification whereas many of the hospitals located within the Kolkata Municipal Corporation areas and district towns and sub-division towns have been br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 Orissa 109; and General Manager, South Central Railway, Secunderabad v. A.V.R Siddhanti, reported in AIR 1974 SC 1755. The Medical Council of India supports the case of the appellants. Mr. Bhattacharya, learned counsel for the Indian Medical Council tried to justify the impugned notification as one derived from the Regulations framed by the Medical Council of India. According to him in exercise of powers conferred under Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India was competent to issue the Regulations sad as such the notifications subsequently issued by the State of West Bengal was also a justifiable one as it was drawn on the lines laid down by the Medical Council of India. In support of his contentions he relied on the decisions in the cases of Dr. Preeti Srivastava v. State of M.P, reported in (1999) 7 SCC 120 and State of M.P v. Gopal D. Tirthani, reported in AIR 2003 SC 2952. Mr. Bhattacharya argued that the Regulations framed by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956 have statutory force and are binding. Relying on the case of Dr. Preeti Srivastava (Supra) Mr. Bhattacharya submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courses in medical colleges in accordance with the Regulations made by the Indian Medical Council, does not contravene or encroach upon the power of the central legislature to make orders in regard to the matter provided in Entry 66 of List I of Seventh Schedule. The stand of the State of West Bengal is that the notification dated November 23, 2011 has followed the amended Regulation framed by the Medical Council of India which is over and above the State's own competence to lay down the eligibility criteria for admission to the post graduate courses. The State in the written notes of submissions has not addressed the major challenges thrown by the writ petitioners to the said notification. The question was not whether it was competent for the Medical Council of India to frame the Regulations, the challenge basically related to the propriety of the notification assailed in the writ petition. The State of West Bengal further sought to justify the definition of remote and difficult areas as mentioned in the notification on the ground of individual parameters relating to human development index taken from various sources which revealed certain criteria linking backward area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction recorded by learned single Judge. Reliance was placed on the case of State of M.P v. Gopal D. Tirthani (Supra) wherein it has been held that in-service candidates and candidates not in service are two classes based on an intelligible differentia achieving thereby a reasonable nexus between the classes and the object to be achieved. The rules which were under challenge in the case of State of M.P v. Gopal D. Tirthani (Supra) made provisions for the entrance test to be conducted by the relevant State Government. The cases relied on by the elarned Advocates for the appellants or the interveners or even by those respondents who have supported the appellants did not deal with the aspect of alleged arbitrariness in geographical distribution of remote and difficult areas as have been very seriously contended in some of the writ petitions. That the Regulations framed by the Medical Council of India have statutory force and are binding in character are far too settled principles of law; but that does not take away the right to challenge the same if they otherwise appear to be on the wrong side of the constitutional validity. Judged by that the finding of the learned single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and other districts as distinguished from other areas which are geographically remoter from those areas included in the notification, appears to be a factor to be considered in the writ petitions. Again, Mr. Basu has argued that the Indian Medical Council Act, 1956 does not confer any power of delegation. In reply Mr. Dutt, the learned Advocate for the appellants, submitted that by issuing the notification dated November 23, 2011, the State was not in fact legislating but was exercising its administrative power and not the executive power. The fine distinction between the two powers, if at all, need not be assessed by us at this stage. According to the appellants the impugned notification was an administrative circular and the court will not substitute the views of the experts who deal with education matters. The question, however, is not whether the State was legislating or not. A larger question has been raised by the writ petitioners concerning the competence of the State Government to issue the said notification and whether any benefit could be conferred on a class of doctors by counting from an anterior date. We prima facie find that there is some justification in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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