WP(C) 1260/2011 BEFORE THE HON BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE A.K. GOSWAMI The W.P (C) No. 3280 of 2010 was originally filed by 7 (seven) writ petitioners. They had appeared in the Post Graduate Medical Entrance Examination, 2010, for short, PGMEE, 2010. On the prayer of learned counsel for the petitioners, the na mes of petitioner Nos. 1,3,4 and 5 are struck off the record as they did not wan t to press the writ petition and therefore, the present writ petition survives s o far as the writ petitioner Nos. 2,6 and 7 are concerned. The case of the petit ioners is that after obtaining Bachelor of Medicine and Bachelor of Surgery (MBB S), being eligible, they had appeared in the PGMEE, 2010, for admission in the P ost Graduate Courses in the 3 Medical Colleges throughout the State of Assam. In the rank wise merit list, the rank of the petitioners (we have included all the petitioners though they are not on record now) are 56, 64,73,74,76,78 and 83, r espectively. The total marks of the examination was 300 and the marks obtained b y the petitioner Nos. 1 to 7 are 222, 220, 219, 218, 218, 217 and 217 respective ly. The total number of seats for both degree and diploma courses under State Qu ota is 170 and the percentage of seats allotted as well as actual seats allotted in respect of all the categories of candidates entitled to get admission in Pos t Graduate Courses are available in the Rules holding the field . Out of the 170 , only 60 seats were made available for the General category being 35% of the to tal seats while 110 seats were reserved under various categories constituting 65 % of the seats. The seats reserved under the Teachers Quota and the North Easter n Council Quota were merged and adjusted in General category thereby portraying a picture that 82 seats were kept in the Unreserved General category. Adjustment of the seats under the State Health Quota as also the seats of Teachers Quota w ith the General category also could not succeed the percentage of reserved seats to be kept below 50%. The petitioners claimed to be candidates belonging to the General category. Although they had secured comparatively very high position in the PGMEE, 2010, it soon became obvious to them that because of the many ills t hat beset the procedure for admission in the Post Graduate Courses due to the Ru les which are in force and notifications issued by the Government in the field o f procedure to be adopted for the purpose of admission into Post Graduate Course s, let alone being able to pursue the PG Courses in the subjects of their choice , the prospect of they being at all able to pursue the PG Courses was looming la rge with uncertainty. 2. The predicament that they face is due to certain provisions of t he Rules of 2006, which, according to them are wholly arbitrary, discriminatory, unconstitutional and therefore, they say that such Rules should be declared ult ra vires and null and void. According to the petitioners, the offending Rules ar e : (1) Rule 4(3)(i) of Rules of 2006 as amended by Amendment Rules of 2010 (2) Rule 4 (3)(vi) of Rules of 2006 as amended by Amendment Rules of 2010 (3) Rule 4(4)(i) of Rules of 2006 as amended by Amendment Rules of 2010 (4) Rule 7(2)(e) & Rule 7(2) (f) of Rules of 2006. Therefore, they pray for striking down the aforesaid Rules. They have also made following additional prayers: (5) Cancellation of seats allotted to physically handicapped candidate in 7 seats other than pool seats in violation of sub-rule 7 of Rule 4 of Rules of 20 06, which had been inserted by Amendment Rules of 2008. (6) Inclusion of seats reserved under NEC quota under Rule 4(2) of Rules of 2006 within general category seats should be set aside. (7) Inclusion of seats reserved for Teachers Quota under Rule 4(3) of Rules of 2006 within general category seats should be set aside. (8) Direction to be used for restricting reservation/allocation of seats bel ow 50% of the total seats available. In this writ petition, State of Assam represented by the Commissioner and Secret ary, Government of Assam, Health and Family Welfare (B) Department, Director of Medical Education, Assam and the Selection Board represented by its Chairman wer e arrayed as respondent Nos. 1, 2 and 3 respectively. 3. W.P.(C) No. 1259 of 2011 is filed by 6 (six) petitioners. All th ese petitioners obtained MBBS degree in the year 2008 except petitioner No. 6 wh o obtained MBBS degree in the year 2006. They all joined 1 year rural service, a lbeit, on different dates. Their dates of joining rural service are 24.1.2009, 1 8.9.2009, 23.9.2009, 19.9.2009, 18.9.2009 and 12.10.2009 respectively. These pet itioners had appeared in the PGMEE, 2011 and their positions in the rank wise me rit list are 46, 81, 84, 104, 164 and 174, respectively. The grievance of these writ petitioners are basically two-fold: (1) grant of additional marks @ 10% of the marks obtained in the Entrance Examination, for every year of service in rem ote and difficult areas and (2) relaxation of 1 year rural service before appear ing in the Post Graduate Medical Examination, 2011. These petitioners have prayed for striking down of Rule 5(D)(xvi) of Rules of 2 006 as amended. They also pray for quashing and setting aside of the following: (i) Order dated 31.12.2010 (Annexure-11) whereby all such candidates who had joined the rural service and who wished to appear in the PG Entrance Examinatio n, 2011, although not completing 1 year of rural service, were allowed to take p art in the Entrance Examination; (ii) Educational notice dated 5.1.2011 (Annexure-12) which is a follow-up not ice pursuant to issuance of order dated 31.12.2010; (iii) Order dated 17.1.2011 (Annexure-13) reiterating that a one time relief b y way of condonation of shortfall of 1 year period of rural service for permitti ng to take part in the Entrance Examination of 2011; (iv) Educational notice dated 8.2.2011 (Annexure-15) whereby, candidates whos e names appear in the merit list of PGMEE, 2011 and who had served rural service in the remote and difficult areas, are directed to apply for increase of addit ional marks; (v) Recalling of the rank wise merit list containing the names of the candi dates who have not fulfilled the eligibility criteria for 1 year compulsory rura l posting on the date of application including the candidates belonging to 15% A ll India Quota in MBBS Course. The State of Assam represented by the Chief Secretary, Governmen t of Assam, Commissioner and Secretary, Health and Family Welfare Department, Di rector of Medical Education, Srimanta Sankardeva University of Health Sciences r epresented by the Registrar, Controller of Srimanta Sankardeva University of Hea lth Sciences, were initially the party respondent Nos. 1 to 5 in the writ petiti on. Subsequently, on an application filed by 5 applicants, vide order dated 21.3 .2011, those applicants were impleaded as respondent Nos. 6 to 10. These respond ent Nos. 6 to 10 are candidates who had served in remote and difficult areas. 4. W.P.(C) No. 1260 of 2011 is filed by 5 writ petitioners. All of them obt ained their MBBS degree in the year 2008. All the petitioners except petitioner No. 5 had served in rural areas. In the rank wise merit list, their positions ar e reflected in Sl. Nos. 35, 38,42,33 and 89, respectively. Their prayer is limit ed to striking down of Rule 5(D)(xvi) of the Rules of 2006 as amended. The respo ndent Nos. 1 to 3 of this petition are same as that of W.P (C) 3280 of 2010. Add itionally, National Rural Health Mission, represented by Mission Director, is ar rayed as respondent No.4. 5. In W.P.(C) No. 3280 of 2010, the respondent No. 1 had filed an affidavit to which a reply affidavit was also filed by the petitioner. An additional affi davit was also filed by the respondent No. 1 to which a reply was filed by the p etitioner No. 6. In W.P.(C) No. 1259 of 2011, an affidavit-in-opposition has bee n filed by the respondent No. 2 to which a reply affidavit was also field by the petitioner. An affidavit-in-opposition by respondent Nos. 6 to 10, though typed as respondent Nos. 5 to 9, has been filed. Reply affidavit by the petitioner is also filed. The counsel for the State had represented that the affidavit filed in W.P.(C) No. 1259 of 2011 would also cover the case projected in W.P.(C) No. 1 260 of 2011 and accordingly, to that effect there is an order dated 21.3.2011. I t appears copy of the affidavit filed by the respondent No. 2 in W.P.(C) No. 125 9 of 2011 was furnished to the council for the petitioner and accordingly, a rep ly affidavit is also brought on record by the writ petitioners in W.P.(C) No. 12 60 of 2011. 6. The petitioners in W.P.(C) No. 3280 of 2010 stated that the teachers who are entitled to seats under Rule 4(3) were allotted seats from the seats availa ble for general category candidates even before the candidates from the merit li st were called for counselling. Because of drastic and disproportionate increase of the seats under the teachers’ quota from 5 seats to 20 seats and inclusion o f such seats under general category, had deprived the meritorious candidates bel onging to general category from obtaining seats in the Post Graduate Courses. Ac cording to them, in PGMEE, 2010, there were 3 seats in Anatomy and 6 seats in Pa thology earmarked for general category candidates. It is the assertion of the pe titioners that all the 3 seats of Anatomy and 4 out of 6 seats in Pathology were allotted to teachers and it was only due to the fact teachers, under the Rule 4 (3)(vi), are allowed to take 4 seats in a single subject as compared to 1 seat i n a subject in earlier session. 7. The remaining 2 seats in Pathology were allotted to 2 eligible candidate s under the physically handicapped quota in violation of Rule 4(7)(ii) inasmuch as there was no pool seat earmarked for the subject of Pathology for general cat egory and the physically handicapped candidates should have been allotted seats in other subjects. Pathology was the first choice subject of the petitioner No.1 and after he was denied a seat in Pathology arbitrarily, he wanted to take up P harmacology as his subject where there were 4 seats for the unreserved category. Out of the aforesaid 4 seats, 1 seat was earmarked as a pool seat and as no oth er general category candidate had opted for Pharmacology prior to the petitioner No. 1, he was shocked, to say the least, when he was told in the counselling th at there was no available seat in Pharmacology. He was also told that 1 seat was allotted to Teachers Quota and the remaining 3 seats were converted from genera l merit category to OBC/MOBC category as per Rule 7(2)(f) of the Rules of 2006. The petitioners had pleaded that the conversion formula is not only unconstituti onal, the implementation of the same was done by the authorities as per their ow n choice making the counselling process a mockery of law. It is averred that if a reserved category candidate opted for a reserved seat in general merit positio n, a general seat in the same subject should be brought under reservation in the same category to which the candidate belongs, but in reality, when the reserved category candidate opted for a reserved seat from general merit position, a gen eral seat from some different subject was brought under reservation in that cate gory. To substantiate the same, it has been stated that all the 3 seats in the s ubject of Pharmacology was converted from general merit category to OBC/MOBC eve n though none of the reserved category candidates opted for a reserved seat in g eneral merit position in the subject of Pharmacology. In such circumstances, the petitioner No. 1 had to take the subject of Psychiatry in the first round of co unselling though the same was not his preferred subject. The petitioner No. 2 ha d opted for Ophthalmology where there were 3 seats reserved for the general cate gory. Candidates at ranks 41 and 59 of the merit list opted for Ophthalmology. P etitioner No.2’s rank was 64 and although none of the reserved category candidat es ahead of the petitioner No.2 opted for reserved seat in general merit positio n in the subject of Ophthalmology, the seat was arbitrarily converted to OBC/MOB C depriving him of the seat. The petitioner No. 2 did not avail any other seat i n that session while respondent Nos. 3 to 7 did not even get a single seat. 8. It is further stated that 12 seats from general category were illegally converted to reserved category with the result that though on paper, 60 seats we re earmarked for general candidates, in real sense of the term, after the illega l conversions were made, general category candidates had only 48 seats (28.42% o f the total seats) to compete for out of total 170 seats in both degree and dipl oma courses. It is pleaded by them that the same is in clear derogation of the c onstitutional principles and established norms of reservation policy. It is also stated that the working of the Rule militates against candidates in the general category and they are at the receiving end for the injustices meted out. It is also the case of the petitioners that the reservation under the State Health Ser vice Quota on the basis of 5 years service in rural areas is not a valid classif ication and such qualification is directly in conflict with the judgment of the Hon’ble Supreme Court in the case of Dr. Narayan Sharma and Anr. -Vs- State of A ssam and Others, reported in 2000(1)SCC 44. The petitioners also castigated the approach of the authorities in not making available to the general category cand idates even what is due to them under the Rules and as an illustration thereof, has stated that though only 18 seats under the Teachers Quota was filled up and 2 seats were available to be filled up from the merit list in order of merit, ye t, strangely these 2 seats were kept in abeyance. According to them, candidates belonging to North Eastern Council Quota form a separate class in itself; but 2 seats on that account have also been included in the unreserved category along w ith general category candidates cutting into the already vastly depleting number of seats in the general category. In the scheme of the Rules, merit has taken a back seat and has become a casualty, so much so, that even if a general categor y candidate secures first position in the merit list, he will not be able to pur sue PG Courses in Paediatrics, Pathology, Pharmacology, Biochemistry, Anatomy an d Anaesthesiology. 9. In the affidavit filed on behalf of the respondent No. 1, it has been stated that the petitioner Nos. 3 to 7 remained absent in the counselling. It is stated that the total number of seats in the year 2009-2010 was 246 and t he same had been increased to 339 seats out of which 272 seats are meant for deg ree and 67 for diploma. 50% of seats which are required to be surrendered for Al l India Quota works out to 136 in degree course. The state has 34 seats in diplo ma thereby totalling 176 number of seats. It is also stated that after the first round of counselling, 8 more seats had been allotted to the 3 Medical Colleges of the State by the Government of India and that the same would be filled up at the time of second counselling. In justification of the Teachers Quota, it has b een stated that the entry level qualification for the post of Registrar/Demonstr ator is an MBBS Degree. However, as per prescribed guidelines of the Medical Cou ncil of India, for short, MCI, educational qualification for the promotional pos t from the post of Registrar/Demonstrator is a Post Graduate Degree. Due to dear th of doctors possessing Post Graduate Degree, State found it increasingly diffi cult to fill up the promotional posts inviting not only wrath from the MCI but a lso threat of de- recognition. Reservation of 5 seats in the Teachers Quota was considered to be inadequate to meet the emerging scenario and it was found that 45 number of MBBS doctors at the entry level were yet to acquire Post Graduate D egree. It is in that backdrop that entry level qualification had been raised to Post Graduate Degree in 2006 from the earlier MBBS Degree. It is the stand of th e State Government that granting of 93 number of additional Post Graduate seats for the session 2010 acted as a catalyst for taking a decision to raise the quot a of MBBS teachers from 5 to 20 as one time basis for the academic session 2010- 2011. 10. It has been stated that there is a 3 (three) tier structure of Health Ca re System prevalent in the State of Assam. The public Health Centres take care o f the Primary Health Care. Community Health Centre/FRU Level Hospitals/Sub-divis ional Civil Hospital and District Civil Hospitals form the core of Secondary Lev el Health Care and the Medical Colleges and Hospitals are categorised as Tertiar y Level Health Care Institutions. It is further stated in the affidavit that a p erceptible and significant change has taken place regarding the development in t erms of infrastructure and equipments in Primary and Secondary Health Care Insti tutions with the implementation of National Rural Health Mission in a big way. While asserting that the State is geared up to meet the challenges in the infras tructure development and availability of equipments, qualified special doctors i n disciplines such as Medicine, Surgery, Gynaecology, Paediatrics, Anaesthesiolo gy, Eye, ENT, Radiology, Pathology, Psychiatry and Orthopaedics required in the Secondary Level Health Care Institutions, is woefully lacking. It is also state d that the increase in the State Health Quota from 16 to 23 for a pool of 3000 d octors under State Health Services is justified. The State in their affidavit co nceded that Pathology was not included in the pool seats under the General categ ory in session 2010, and the 2 candidates belonging to physically handicapped qu ota were allotted seats in Pathology on sympathetic consideration. The affidavit also dealt with the formula of conversion under Rule 7(2)(f) explaining the sam e in the context of claim made by the petitioner No. 1 for allotment of a seat i n Pharmacology. It was stated that one Dr. Rondeep Kumar Nath whose position was 24 in the merit list was allotted a seat in Medicine at GMC by de-reserving the OBC seat and subsequently converting a Pharmacologist seat in AMC and that Dr. Alakesh Burman with rank 44 was allotted a seat in Surgery at GMC by de-reservin g the OBC seat and subsequently converting a Pharmacologist seat at AMC. Dr. Raj kumar Paul at Sl. No. 21 at merit list was allotted a seat in Paediatrics at AM C by de-reserving the OBC seat and subsequently converting the Pharmacologist se at at AMC. 11. By filing an additional affidavit the respondent No.1 brought on record the fact that except petitioner NO. 6, the other 6 petitioners had been admitted to the PG Medical Course for the session 2010 as per their choice of subject an d merit position and that they were pursuing their courses in their respective s ubjects. The petitioner No. 6 filed a reply to the additional affidavit filed by the respondent No. 1 denying that other 6 petitioners had been admitted in the PG Medical Courses as per their choice of subjects. It is also stated that thoug h the respondent No. 7 was allotted a seat in Ophthalmology in the second round of counselling, the same was not his subject of choice and therefore, he surrend ered the seat after 2 months. In the reply affidavit to the affidavit-in-opposit ion, the petitioners have, more or less, reiterated the averments and the stand taken in the writ petition. 12. The petitioners in W.P.(C) No. 1259 of 2009 stated that the Office Memor andum dated 28.8.2009, which relaxed the requirement of serving under the Govern ment of Assam by way of compulsory rural service to one year has been made part of the Amendment Rules of 2010 by way of incorporation. It is averred that docto rs who are appointed in rural areas against the one year period are appointed on contractual basis and an agreement is also executed by and between the doctors concerned and the appointing authority. They say that such appointments cannot b e termed as regular appointments and such appointees stand on a different footin g as compared to the doctors serving on regular basis in the State Health Servic es, for whom there is reservation in the provisions of the Rules. It is stated t hat un-amended Rule 6 of Rules of 2006 did not provide for mandatory service und er the Government of Assam as an eligibility criteria and the same was introduc ed for the first time by the Memorandum dated 28.8.2009. The concept of remote a nd difficult area and awarding of additional marks for serving in remote and dif ficult area was introduced for the first time by the Notification dated 13.1.201 0. It is stated by them that none of the petitioners were given the option to se rve in remote and difficult area and if any option was given, they would have ex ercised such an option. It has been stated that grant of additional marks would have disastrous results and the Notification dated 13.1.2010 and the Amended Rul e 5 is violative of the mandate of Article 14 of the Constitution of India. It i s further stated that the prescription of giving of 10% additional marks up to 3 0% as per the Amendment Rules of 2010 has the effect of lowering the standard of education and admission criteria and therefore, the same is violative of the pr ovisions of the Regulations of 2000 framed by the MCI. The exercise of power pur portedly under Rule 15 of the Rules of 2006 is also termed illegal, arbitrary an d unreasonable. It has also been stated candidates who completed the MBBS Course under the State quota seats were discriminated by neither insisting on one year compulsory rural posting nor insisting on compliance of eligibility criteria of one year rural posting in respect of the candidates belonging to the 15% All In dia Quota Seats of MBBS and that they had been allowed to appear in the entrance examination and their names have also found place in the rank wise merit list. It is pleaded that such candidates should not be permitted to participate in the counselling for admission to Post-Graduate Medical Course under 50% State Quota seats. Additionally, it is pleaded that the students who were admitted in 15% A ll India Quota in the MBBS Course cannot be made a class apart from the candidat es who have completed their MBBS Course under the State Quota seats for the purp ose of 50% State Quota seats in the Post Graduate Courses and that such a classi fication is wholly antagonistic to Article 14 of the Constitution of India. 13. The respondent No. 2 in the