STATE OF HARYANA AND ANOTHER ETC. ETC.versusDR. NARENDER SONI AND OTHERS ETC. ETC.

                       [2017] 4 S.C.R. 251


       STATE OF HARYANA AND ANOTHER ETC. ETC.                          A
                                v.
       DR. NARENDER SONI AND OTHERS ETC. ETC.
              (Civil Appeal Nos. 8179-8181 of 2017)
                          MAY25,2017                                   B
       [L. NAGESWARA RAO AND NAVIN SINHA, JJ.]
       Administrative law - Policy decision - Issuance of Notification
dated 05.05.2017 by State of Haryana notifying remote/difficult
areas in the State for grant of weightage in marks obtained in the C
National Eligibility-cum-Entrance Test(NEET) for admission to
various post graduate Medical/Dental courses under Regn. 9(1V) -
Set aside by the High Court with directions for fresh counseling -
Interference with - Held: Not called for - Notification dated
05.05.2017 is based on a completely flawed process of identification,
applying irrelevant criteria and ignoring relevant considerations - D
Notification based on no data, formulated in a day. implemented
before publication in the Gazette, after publication of the NEET,
reflects inadequate preparation by the State -11 cannot be approved -
Proviso to Regn. 9(1V) is not a compulsion but an enabling provision
vesting discretion in the State, which has to be exercised fairly,
                                                                       E
reasonably and for the purpose the power has been conferred - In
view thereof Stale of Haryana to come out with a fresh notification
identifying remote and/or difjlcult areas to give weightage in PG
courses - Post graduate .Medical Education Regulations, 2000 -
Regn. 9(1V) - Education/Educational Institutions.
                                                                       F
       Dismissing the appeals, the Court
       HELD: 1.1 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    G
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 availability of Doctors at these locations. To
first identify locations where Doctors are reluctant to be posted
                                                                       H
                                251
252          SUPREME COURT REPORTS                     [20 J 7] 4 S.C.R.


A 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 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
B
  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. The impugned notification
  was implemented and acted upon in the 1" counselling even
c before its publication in the Gazette, only after which it could
  have come into force. [Para 7][256-F-H; 257-A-C)
        1.2 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 been
D 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. The identification, moreover, has
E been done only for the purposes of admission in postgraduate
  courses, contrary to the guidelines in D.S. Cltauha11 ~v case that it
  must be based on general criteria applicable to other Government
  schemes also. [Paras 8, 9][257-C-E]
         1.3 The word remote and/or difficult areas has not been
 F 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 may be a hindrance in
   providing adequate medical care requiring incentivization. A cue
 G 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. [Para 10)(257-F-G]

 H
  STATE OF HARYANA AND ANOTHER v. DR. NARENDER                        253
                SONI AND OTHERS

      1.4 It is apparent that the Notification dated 05.05.2017 is A
based on a completely flawed process of identification, applying
irrelevant criteria and ignoring relevant considerations. The High
Court 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 B
naturally vary from State to State to some extent, despite
identification of certain common criteria. [Para 13][261-D-E]
       1.5 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, implem~ntation before publication in the Gazette, after C
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 D
power has been conferred. The observations of the High Court
is approved. There is no reason to interfere with the order of the
High Court. [Paras 14, 15][261-F-H)
       1.6 The instant case is a fit case for initiation of contempt
proceedings by notifying counselling on 22.05.2017 and· E
23.05.2017 in the face of the interim order. The conduct of the
officials of the Directorate of Medical Education and Research,
Haryana is deprecated. Such adventurism in future, IDust be
desisted, except at their own peril. Any counselling done contrary
to the interim order is, thus, a nullity and invalid from its nativity.
[Para 16][262-A-B]                                                      F

       1.8 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 stated in the present order, within one week G
 from today and to facilitate the same, the last date for admission
 is extended to 10.06.2017. [Para 17][262-B-C)
      State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC
      749 : [2016) 6 SCR 571 - referred to.
                                                                       I-I
254            SUPREME COURT REPORTS                        [2017] 4 S.C.R.


A                             Case Law Reference
            [2016] 6 SCR 571          referred to              Para3
             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      8179-8181 of2017.
B           From the Judgment and Order dated 09.05.2017 by the High Court
      of Punjab and Haryana at Chandigarh in CWPNo. 8649of2017 (O&M),
      CWP No. 9192 of2017 (O&M) and CWP No. 9356 of2017 (O&M)
                                     WITH
            Civil Appeal Nos. 8182 and 8183-8185of2017.
c       Subramonium Prasad, Mahabir Singh, Ms. Indu Malhotra,
  Vikramjeet Banerjee, Sr. Advs., Alok Sangwan, Dr. Monika Gusain,
  M. K. Ghosh, Ms. Tina Garg, Rohit Dutta, B. Ramanamurthy,
  Ms. Aishwarya Bhati, Jaideep Singh, Amit Verma, Ms. Heena Khan,
  Shivang Dubey, Kavin Prabhu, Kush Chaturvedi, Ms. Prerna Mehta,
D Bharat Sood,Ashish Pandey, Raj iv Raheja, R. Karanpuria, Sumit Sharma,
  Gaurav Sharma, Prateek Bhatia, Ms. Amandeep Gaur, Ms. Vara Kaur,
  Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J. 1. Leave granted.
 E
          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 ofHaryana, notifying remote andor difficult
   areas in the State for grant ofweightage in marks obtained in the National
   Eligibility-cum-Entrance Test (NEET) for admission to various·
 F 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
 G Mahabir Singh, and Learned Counsel Ms. Aishwarya Bhati, on behalf
   of the appellants, submit that the notification dated 05 .05.2017 was not
   i~sued 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 of2 l .09.2005 identifying difficult
 H
  STATE OF HARYANA AND ANOTHER v. DR. NARENDER                                  255
         SONI AND OTHERS [NAVIN SINHA, J.]

rural areas, then applied four specified criteria to identify remote and/or     A
difficult areas from amongst them, based on 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
      (b) CHCs and PHCs falling in the areas beyond l 0 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               c
       Siwalik areas.
       The notification was in consonance with the directions in State of
U.P. versus Dinesll Singll Cllaullan, (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           0
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    E
areas, the need for doctors in such areas and the manner in which it was
to be filled up by offering incentives. The notification is neither arbitrary
or irrational. The I'' 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.                                                           F
       5. Senior Counsel Ms. lndu 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 res.ult of the NEET had been published. It was acted
upon even before its publication in the gazette. The subsequent publication      G
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
                                                                                 H
256           SUPREME COURT REPORTS                            (2017] 4 S.C.R.


A on no relevant material, and had no co-relation to the object and purpose
  ofRegulation 9 (IV). Unwillingness ofDoctors 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
B
  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 tJ:ie
  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
C notified by the Directorate ofMedical 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 ofhldia.
           7. The respective submissions have been considered. On
 D 16.03.2017, the admission procedure for 2017-2018 was notified. There·
   had been no identification of remote and/or 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
 E 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 ofweightage
   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
 F of the former by application of mind does not appeal. To identify an area
   as remote and/or difficult on the basis ofunwillingness 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
 G 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 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
 H
  STATE OF HARYANA AND ANOTHER v. DR. NARENDER                                 257
         SONI AND OTHERS [NAVIN SINHA, J.]

noticed that several of them were located where municipal committee/           A
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          B
State with good road communications. Additionally, the impugned
notification was implemented and acted upon in the l ''counselling even
before its publication in the Gazette, only after which it could h~ve come
into force as mentioned in the same.
      8. The flawed implementation, by a hasty identification of remote C
and/or difficult areas is further evident from the fact that out of 150
Community Health Centres, 68 of them have 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 ofHaryana as
a developed State and severely reduces the chances of other candidates D
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              E
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.
        I0. The word remote and/or difficult areas has not been defined
anywhere. In common parlance, identification of the same would require F
considering a host of factors, such as social and economic conditions,
geographical location, accessibility and other similar relevant
considerations which 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)" G
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.                                                                 H
258           SUPREME COURT REPORTS                            [20 l 7) 4 S.C.R.


A        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
B
  Welfare in November, 2009 invited suggestions from all States. After
  noticing drawbacks in the same, the Ministry of Health 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
C 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.
 D         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
 E         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
 F         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 from an urban area of district headquarters criterion was
 G
           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
 H
  STATE OF HARYANA AND ANOTHER v. DR. NARENDER                                259
         SONI AND OTHERS [NAVIN SINHA, J.]

      economic loss, social and (from community and family) and               A
      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              B
      addition of further qualifying rules and flexibilities that would be
      defined in writing wherever needed."
      12. Annexure l 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 C
      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 ifthere are other adverse
      environments or housing situations. (exceptions only in extreme
      situations like Upper Himalayan districts or in some NE districts). D
      In terms of scoring, these facilities within the 60km zone are scored
      AO. This cut-off of 60km is chosen as in most circumstances
      60km is less than two hours motorable distance.
       2. Inaccessible: Any health facility which is not on a motorable
       road or where the road gets cutoff for more than 6 months and          E
       one has to walk to reach the facility- is Inaccessible irrespective
       of other factors. Not to count as inaccessible, ifthe 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."     F
       At the lower limit, one needs to verify the data more carefully. In
       terms of scoring these are scored A4 or AS. 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          G
       difficult ifin addition if
          a. The facility is more than 30 km from block headquarter and
          over I 0 km away from national highway or other main busy
          highway- irrespective of other adverse environment or housing
          criteria:                                                     H
260      SUPREME COURT REPORTS                               [2017] 4 S.C.R.


A        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
B
         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
      A I is accessible.
      A facility which is over 60 km from any urban area or any district
·C    headquarters gives it a score of A 1. To this we add another score
      of0.5 for being more than 30km form block HQ and another 0.5
      for being more than I 0 km off the national highway. This makes
      any facility conforming to paragraph "3 a" above get a score of
      A2.
D·    If the facility had a score of A 1 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 Al or A 1.5 would become a net A2 and
      get categorised as difficult.
 E    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 I plus a housing score or
      a vacancy SCC!re then this Al or A 1.5 it would become a net A3
      and get categorised as Most difficult.
.F    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 I . These are
      not additive. If it is a facility located in a tribal hilly forest area, the
 G    environment score is still only I-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 AP! 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
 H
  STATE OF HARYANA AND ANOTHER v. DR. NARENDER                                  261
         SONI AND OTHERS [NAVIN SINHA, J.]

      occasional and widely dispersed would not attract a disturbed area A
      score. Factors like dacoit infested, caste conflicts etc are not given
      any score. The important point to note is that an environment
      score would make an A I to an A2 or an A2 into an A3. It would
      seldom make an A 1 to A3 and it would never make an AO into
      any level of difficulty.
                                                                             8
      5. Scoring for Housing: Poor quality of housing, lack of water
      supply and electricity, and lack of access to a higher secondaiy
      school within one hour of bus journey (30 km) also are scored. In
      combination with an environment score they could make an A I to
      an A2 (difficult) or an A2 to an A3 (most difficult), but would not C
      make an AO into a difficult category.
      6. Scoring for Vacancy: If medical posts are vacant for one to
      three years we indicate it by V l 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."                              D
       13. It is, therefore, apparentthat 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    E
locations. The identification and criteria, will naturally vary from State to
State to some extent, despite identification of certain common criteria.
      14. We, therefore, find no reason to interfere with the order of the
High Court.
                                                                                 F
       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(1V) is not a compulsion but an        G
enabling provision vesting discretion in the State.Any discretionaiy 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.
                                                                                H
262                SUPREME COURT REPORTS                      [2017] 4 S.C.R.


A        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 mfuture, must be desisted, except at
B their 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
   ofHaryana, ifit 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
 C in the present order, within one week from today and to facilitate the
   same, the last date for admission is extended to I0'11 of June, 2017.
              18. The appeals are dismissed.


      Nidhi Jain                                                Appeals dismissed.