The State Of Haryana vs Dr. Narender Soni

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.8179-8181 of 2017 (Arising out of SLP(C) Nos.15171-15173 OF 2017) STATE OF HARYANA AND ANOTHER ETC. ETC. …APPELLANT(S) VERSUS DR. NARENDER SONI AND OTHERS ETC. ETC. ...RESPONDENT(S) With Civil Appeal Nos.8183-8185 of 2017 (Arising out of SLP(C) Nos.15495-15497 of 2017) HIMANSHU MOUDGIL ...APPELLANT VERSUS THE STATE OF HARYANA ...RESPONDENT

With Civil Appeal No.8182 of 2017 (Arising out of SLP(C) No.15494 of 2017) DR. ANKIT …APPELLANT VERSUS THE STATE OF HARYANA ...RESPONDENT JUDGMENT

Signature Not Verified

NAVIN SINHA, J.

Digitally signed by NEETU KHAJURIA Date: 2017.05.25 19:41:53 TLT Reason:

Leave granted.

1

2. The three appeals arise from a common order dated

09.05.2007 allowing the writ petitions heard analogous. The

notification dated 05.05.2017, issued by the State of Haryana,

notifying remote andor difficult areas in the State for grant of

weightage in marks obtained in the National

Eligibility-cum-Entrance Test (NEET) for admission to various

postgraduate Medical/Dental courses under Regulation 9(IV)

of the Postgraduate Medical Education Regulations, 2000

(hereinafter referred to as the “Regulations”), has been set

aside, with directions for fresh counselling.

3. Learned Senior Counsel Shri Subramanian Prasad and

Shri Mahabir Singh, and Learned Counsel Ms. Aishwarya

Bhati, on behalf of the appellants, submit that the notification

dated 05.05.2017 was not issued in haste. The policy decision

was taken by a committee headed by the Director General

Health Services. The Committee took into consideration an

earlier notification of 21.09.2005 identifying difficult rural

areas, then applied four specified criteria to identify remote

and/or difficult areas from amongst them, based on

2 unwillingness of Doctors to be posted and consequent

vacancies at these places which were affecting health care.

These four criteria were,

(a) Health institutions not preferred by Doctors for posting,

(b) CHCs and PHCs falling in the areas beyond 10 kilometers from the municipal limits,

(c) Challenging and difficult institutions/areas identified by the department in 2005 and 2006, and

(d) PHCs/CHCs falling in less developed areas of Mewat and Siwalik areas.

The notification was in consonance with the directions in

State of U.P. versus Dinesh Singh Chauhan, (2016) 9 SCC

749, to cover up the demand for basic health care,

commensurate facilities and meet the inertia amongst young

Doctors to go to such areas thus serving a dual purpose.

4. Reliance was further placed on the National Rural Health

Statistics, 2014-2015 regarding the large number of vacancies

in the State of Haryana. No malafides had been alleged. The

State was best suited to decide policy matters for identification

of remote and/or difficult areas, the need for doctors in such

areas and the manner in which it was to be filled up by

3 offering incentives. The notification is neither arbitrary or

irrational. The 1st round of counselling has already been held

and admissions taken. Any interference at this stage by

annulling the earlier counselling also, will only create more

complications and delay the process of admissions.

5. Senior Counsel Ms. Indu Malhotra and Senior Counsel

Shri Vikaramjeet Banerjee, appearing for the respondents

submitted that the High Court has rightly held that the

notification was issued in hot haste, and only after the result

of the NEET had been published. It was acted upon even

before its publication in the gazette. The subsequent

publication will not cure the illegality. The Committee was

constituted on 04.05.2017. The issuance of the impugned

notification the very next day covering 115 Community Health

Centers and 498 Primary Health Centers is itself evidence of

the haste with which the decision was taken. The criteria

adopted for identifying remote and/or difficult areas was

arbitrary, based on no relevant material, and had no

co-relation to the object and purpose of Regulation 9 (IV).

4 Unwillingness of Doctors to join posting at specified locations

not to their liking, cannot be the criterion for such

identification. The notification dated 21.09.2005 sought to be

relied upon, pertained to a general transfer policy. In any

event, it had no relevance in the year 2017 because of

developments that have taken place in the State thereafter.

The High Court has rightly held that notifying places as

remote and/or difficult in the vicinity of the municipal

committees/councils was not sustainable. The identification

of the areas could not be for the purpose of medical admission

only as held in D.S. Chauhan (supra). Counselling has been

held subsequently on 22.05.2017 and 23.05.2017 notified by

the Directorate of Medical Education and Research, Haryana,

in teeth of the interim order dated 16.05.2017.

6. We have also heard Sri Gaurav Sharma. learned counsel

on behalf of the Medical Council of India.

7. The respective submissions have been considered. On

16.03.2017, the admission procedure for 2017-2018 was

notified. There had been no identification of remote and/or

5 difficult areas by the State government at this stage. It was

only after the order of the High Court dated 21.04.2017 that

the authorities woke up from stupor and constituted a

Committee on 04.05.2017, days before the first counselling to

be held on 07.05.2017. The notification dated 21.09.2005,

which is stated to be the basis for the notification dated

05.05.2017, pertained to a general transfer policy. The criteria

for transfer/postings and for grant of weightage to incentivise

working in remote and/or difficult areas to serve a dual

purpose cannot be the same. The submission that the

impugned notification is not a reproduction but the outcome

of a truncated version of the former by application of mind

does not appeal. To identify an area as remote and/or difficult

on the basis of unwillingness of Doctors to join at those

places, which can be for myriad reasons, cannot be held to be

a valid and relevant criteria. Similarly vacancies at any

particular place can again be for various reasons and cannot

be directly and conclusively related to unwillingness of Doctors

to join at such places. The State is first required to identify

remote and/or difficult areas, and then analyse the lack of

6 availability of Doctors at these locations. To first identify

locations where Doctors are reluctant to be posted and then

classify them as remote or difficult areas is reversing the entire

decision making process, akin to placing the cart before the

horse. The High Court has noticed that several of them were

located where municipal committee/council exists, 10 places

are such which are sub-divisions in the Districts concerned

and many of the Community Health Centres and Primary

Health Centres were located on National Highways or State

Highways including in cities with large population which could

not be said to be remote and/or difficult areas, observing that

Haryana was a developed State with good road

communications. Additionally, the impugned notification was

implemented and acted upon in the 1st counselling even before

its publication in the Gazette, only after which it could have

come into force as mentioned in the same.

8. The flawed implementation, by a hasty identification of

remote and/or difficult areas is further evident from the fact

that out of 150 Community Health Centres, 68 of them have

7 been identified as remote and/or difficult, which amounts to

60 per cent of the total. Likewise, 54 per cent of the Primary

Health Centres have been identified as remote and/or difficult

areas. It strongly conflicts with the status of Haryana as a

developed State and severely reduces the chances of other

candidates who may not be entitled to such weightage.

9. The identification, moreover, has been done only for the

purposes of admission in postgraduate courses, contrary to

the guidelines in D.S. Chauhan (supra) that it must be based

on general criteria applicable to other Government schemes

also. The report of the Committee was submitted in one day

and immediately accepted. The conclusion of the High Court

that it was done in great haste, therefore, cannot be faulted

with.

10. The word remote and/or difficult areas has not been

defined anywhere. In common parlance, identification of the

same would require considering a host of factors, such as

social and economic conditions, geographical location,

accessibility and other similar relevant considerations which

8 may be a hindrance in providing adequate medical care

requiring incentivization. A cue may be had from the “Concept

and Process Document for Incentivisation of Skilled

Professionals to work in inaccessible most difficult and

difficult rural areas (draft note)” published by the National

Health Systems Resource Centre, Ministry of Health and

Family Welfare. It outlines the rationale and objectives of a

scheme for providing a package of incentives for attracting and

retaining skilled service providers that are categorised as

inaccessible, most difficult and difficult.

11. Dwelling upon the past experiences on 02-07-2009, the

Hon’ble Minister of Health and Family Welfare wrote to the

Chief Ministers of States, about the challenges in reaching

health services in hilly areas, desert areas, areas affected by

Naxalite problem, areas having poor connectivity and

un-served and under-served tribal areas. The third Common

Review Mission (CRM) of the Ministry of Health and Family

Welfare in November, 2009 invited suggestions from all States.

After noticing drawbacks in the same, the Ministry of Health

9 and Family Welfare 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. NHSRC evolved the criteria

on the following five principles:

“a. That the facilities are identified on the basis of how difficult it is for service providers to go and work in these areas- not on how well the health programmes are faring or how difficult it is to provide services in these areas.

b. That the basis of identification would be an objective and verifiable data base which measures difficulty in four dimensions: the difficulty posed by the remoteness of a rural area, the difficulty posed by natural and social environmental factors, the difficulty a family would have in terms of housing, water, electricity and schooling and the record of success of the system in filling up the post in the past. The data-base to be prepared would be stored in such a manner that it could be regularly updated.

c. That once the data base is defined the scoring could be done by giving weightage to the various factors in any way the state or the center wants it, and if need be different elements of the incentive package could be defined by different weightages and selections.

d. Of the four dimensions of difficulty, the most important would be assumed to be the remoteness and physical inaccessibility of the area, while other factors would be considered only if the distance

10 from an urban area of district headquarters criterion was satisfied. Thus an extremist affected district could be as much a problem as distance, but if the facility is an urban or peri-urban area then it would not be the central issue in getting a doctor to that facility. This is based on an understanding that lack of willingness to work in remote areas is due to a combination of economic loss, social and (from community and family) and professional isolation and not so much of a problem as distance from an urban area. e. The criteria for difficulty should be measurable enough to withstand legal and political contestation, but there would be exceptions that need to be made and these could be made by addition of further qualifying rules and flexibilities that would be defined in writing wherever needed.”

12. Annexure 1 to the draft note on “the measurement

of inaccessibility and difficulty of health facilities” stipulates as

follows:

“1. Accessible: Any health facility less than 60 km from any district hospital/ district headquarters OR less than 60 km from any urban area- (not counting very small townships-) is accessible. It would not be considered difficult even if there are other adverse environments or housing situations. (exceptions only in extreme situations like Upper Himalayan districts or in some NE districts). In terms of scoring, these facilities within the 60km zone are scored A0. This cut-off of 60km is chosen as in most circumstances 60km is less than two hours motorable distance.

11 2. Inaccessible: Any health facility which is not on a motorable road or where the road gets cutoff for more than 6 months and one has to walk to reach the facility- is Inaccessible irrespective of other factors. Not to count as inaccessible, if the walking part is only within the village/town. (Motorable road to the village, not necessarily to the facility). A walking time of over half hour or 2 km distance is taken as cut-off. Usually above a one-hour walking time and 5 km distance, it is safe to declare it as “Inaccessible.” At the lower limit, one needs to verify the data more carefully. In terms of scoring these are scored A4 or A5. A 5 is if the distance is over 15 km- or three hours walking time.

3. Difficult and Most difficult: If the facility is more than 60 km from urban area/ district headquarters it would be considered difficult if in addition if a. The facility is more than 30 km from block headquarter and over 10 km away from national highway or other main busy highway- irrespective of other adverse environment or housing criteria:

OR b. The facility is less in one of the above two distances (from block and from highway)but there are adverse environment factors or housing factors to compensate for it.

OR c. If the road gets cut off for more than a month every year.

In terms of scoring an A2 is difficult and A3 is most difficult A1 is accessible. A facility which is over 60 km from any urban area or any district headquarters gives it a score of

12 A1. To this we add another score of 0.5 for being more than 30km form block HQ and another 0.5 for being more than 10 km off the national highway. This makes any facility conforming to paragraph “3 a” above get a score of A2. If the facility had a score of A1 or A 1.5 score from its distance or for road cut-off reasons but as an environment score of more than 2 or an environment score of 1 plus a housing score or a vacancy score then this A1 or A 1.5 would become a net A2 and get categorised as difficult.

If the facility had a score of A 2 or A 2.5 from its distance scores and cut-off reasons- and then also has an environment score of more than 2 or an environment score of 1 plus a housing score or a vacancy score then this A1 or A 1.5 it would become a net A3 and get categorised as Most difficult.

Lack of public transport including lack of a taxi service could also make an A2 into an A3.

4. Scoring for Environment: Any hilly, forest, tribal or desert or island area would attract an environment score of 1. These are not additive. If it is a facility located in a tribal hilly forest area, the environment score is still only 1- not 3. If the hills are above 5000 ft then one could put it as two. Or if the tribal areas has a high malaria problem (Falciparum and above API 5) in addition to it being hilly and forested one could put it as 2. We can also add one to three points for Left Wing violence depending on the stage of police operations.

Generally other forms of conflict which are occasional and widely dispersed would not attract a disturbed area score. Factors like dacoit infested, caste conflicts etc are not given any score. The important point to note is that an environment

13 score would make an A1 to an A2 or an A2 into an A3. It would seldom make an A1 to A3 and it would never make an A0 into any level of difficulty.

5. Scoring for Housing: Poor quality of housing, lack of water supply and electricity, and lack of access to a higher secondary school within one hour of bus journey (30 km) also are scored. In combination with an environment score they could make an A1 to an A2 (difficult) or an A2 to an A3 (most difficult), but would not make an A0 into a difficult category.

6. Scoring for Vacancy: If medical posts are vacant for one to three years we indicate it by V1 to V3 scores. This is just used to check whether we are on the right track. The pattern of vacancies is inconsistent and changing and the data on it is of too poor a quality to use it for decision making.”

13. It is, therefore, apparent that the Notification dated

05.05.2017 is based on a completely flawed process of

identification, applying irrelevant criteria and ignoring relevant

considerations. The High Court has rightly observed that the

State power for transfer and posting is sufficient to take care

of the unwillingness of Doctors to join at specified locations.

The identification and criteria, will naturally vary from State to

State to some extent, despite identification of certain common

criteria.

14

14. We, therefore, find no reason to interfere with the order of

the High Court.

15. The conduct of the State in issuance of the notification

dated 05.05.2017 based on no data, formulation of the same

in a day, implementation before publication in the Gazette,

after publication of the NEET, reflects inadequate preparation

by the State, acting more in the nature of a knee jerk reaction

to situations. It does not meet the approval of the Court. The

proviso to Regulation 9(IV) is not a compulsion but an

enabling provision vesting discretion in the State. Any

discretionary power has to be exercised fairly, reasonably and

for the purpose for which the power has been conferred. The

observations of the High Court meet our approval.

16. Appropriately, the present is a fit case for initiation of

contempt proceedings by notifying counselling on 22.05.2017

and 23.05.2017 in the face of the interim order dated

16.05.2017. The conduct of the officials of the Directorate of

Medical Education and Research, Haryana is deprecated.

Such adventurism in future, must be desisted, except at their

15 own peril. Any counselling done contrary to the interim order

is, therefore, a nullity and invalid from its nativity.

17. In the peculiar facts and circumstances of the case, the

State of Haryana, if it wishes to give weightage for admission

in postgraduate courses under the proviso to Regulation 9 (IV),

it must come out with a fresh notification identifying remote

and/or difficult areas as discussed in the present order, within

one week from today and to facilitate the same, the last date

for admission is extended to 10th of June, 2017.

18. The appeals are dismissed.

…………...................J. [L. NAGESWARA RAO]

…………...................J. [NAVIN SINHA] NEW DELHI;

MAY 25, 2017.

16

ITEM NO.1 COURT NO.5 SECTION IV-B (For Judgment By Notice)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) Nos.15171-15173/2017

(Arising out of impugned final judgment and order dated 9.5.2017 in CWP Nos.8649/2017, 9192/2017 and 9356/2017, passed by the High Court Of Punjab and Haryana at Chandigarh)

The State of Haryana and ...Petitioner(s) Another Etc. Etc. VERSUS

Dr. Narender Soni and Others Etc. Etc. .....Respondent(s)

(For exemption from filing c/c of the impugned judgment on IA 40523 of 2017 and for appropriate orders/directions on IA 42500/2017 and for stay application on IA 42609/2017 )

With SLP(C) Nos.15495-15497/2017 (For exemption from filing c/c of the impugned judgment on IA 40732/2017)

With SLP(C) Nos.15494/2017 (For exemption from filing c/c of the impugned judgment on IA 40697/2017 and for permission to file lengthy list of dates on IA 40699/2017)

Date : 25/05/2017 These matters were called on for pronouncement of judgment today.

(VACATION BENCH)

For Petitioner(s) Dr. Monika Gusain, Adv.

Mr. B. Ramana Murthy, Adv.

Ms. Aishwarya Bhati, Adv.

Mr. Jaideep Singh, Adv.

Mr. Amit Verma, Adv.

17 Ms. Heena Khan, Adv.

For Respondent(s) Mr. Kush Chaturvedi, Adv.

Hon'ble Mr. Justice Navin Sinha pronounced the

reportable Judgment of the Bench comprising Hon'ble Mr.

Justice L. Nageswara Rao and His Lordship.

Leave granted.

The appeals are dismissed in terms of the signed

reportable judgment.

As a sequel to the above, pending interlocutory

applications, if any, stand disposed of.

(Neetu Khajuria) (Madhu Narula) Court Master Court Master

(Signed Reportable Judgment is placed on the file)

18