Sambuddha Chakrabarti, J.

Apparently an interim order passed on a bunch of writ petitions evoked more appeals than the number of writ petitions and in the process appeals filed after obtaining leave of 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 training 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, modifications, deletions, etc. in the Regulations of 2000 followed by further amending Regulations of 2010 whereby a proviso was added to Clause 9(2)(d) of the said Regulations which made provision for weightage in the marks as an incentive at the rate of 10 per cent. of the marks obtained for each year in service in remote or difficult areas as decided by the competent State authorities from time to time up to a maximum of 30 per cent. of the marks obtained in determining the merit at the entrance test for admission to the post graduate courses.

On November 23, 2011 the department of Health and Family Welfare, Government of West Bengal, had issued a notification which inter alia recited that the Government of India had identified and categorised eleven districts in the State of West Bengal as backward. It further mentioned that considering that backwardness, remoteness and difficult circumstances were strongly correlated, the State Government categorized eleven districts, as named in the said notification, as remote and difficult areas. In addition, the district of Coochbehar and the hill sub-divisions of the district of Darjeeling were also included in the said list in view of their remoteness and inaccessibility. The notification declared that with effect from the academic session commencing from 2012, 50 per cent. of the seats in post graduate diploma courses conducted by the West Bengal University of Health Sciences should be reserved for Medical Officers in the West Bengal Health Service and West Bengal Public Health cum- Administrative Service who had served for at least three years in those remote and difficult areas. The said notification further provided that in determining the merit at the entrance test for post graduate admission weightage in the marks would be given to officers borne in the cadres of the two services mentioned above as well as the West Bengal Medical Education Service as an incentive at the rate of 10 per cent. of the marks obtained for each completed year in service in the aforesaid remote and difficult areas up to a maximum of 30 per cent. of the marks obtained. This notification led to the filing of several writ petitions on various grounds such as the classification and categorisation of remote and difficult areas were unreasonable, arbitrary and irregular; the notification was not approved by the Executive Council and the General 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 Courts 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, made clear that the order would, however, not stand in the way of the respondents from proceeding with the process of examinations subject to the final results thereof. The Court also passed directions for filing of affidavits-in-opposition and affidavits-in-reply. The writ petitions have been fixed as Specially Fixed Matters on March 15, 2012.

The aggrieved appellants contend that the order had adversely affected them as they were the beneficiaries of the said notification and without hearing them the Court could not pass this order. These appellants contend that the West Bengal University of Health Sciences had already initiated the process for admission to various post graduate degree and diploma courses and issued an information booklet to that effect which was amended in November, 2011. By the said amendment the cut-off date for determining the number of completed years in service rendered in difficult and remote areas was fixed as November 12, 2011. The grievances of the appellants was that if the admissions were allowed to be completed in terms of the interim order passed the same would result in affecting their rights.

These are by and large the contention running through all the appeals. In support of these various arguments have been advanced before us by the learned Advocates representing the respective appellants. The range of submissions varied from the competence of the Medical Council of India to issue the relevant Regulations, the principle behind such Regulations, the purpose sought to be achieved by them and so on and so forth. Their broad submissions are that the order impugned did not record finding of any prima facie case or balance of convenience or irreparable injury, the interim order affected the rights of the appellants who were not parties to the writ petitions and thus, the order had the effect of affecting the right of parties who were not present in court. The interim order, it has been contended, had granted final relief to the writ petitioners inasmuch as the results have already been published without giving effect to the notification and once the process of admission is completed the same would result in granting final relief to the writ petitioners which could not be granted at that stage. The challenge made to the concerned notification did not come within one of the two grounds on which the constitutional validity 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. vs. Lanko Kondapally Power (P) Ltd. reported in (2006) 1 SCC 540 [LQ/SC/2005/1258] ; Fargo Freight Ltd. vs. Commodities Exchange Corporation and Others, reported in (2004) 7 SCC 203 [LQ/SC/2004/814] ; Public Service Tribunal Bar Association vs. State of U.P. and Another, reported in AIR 2003 SC 1115 [LQ/SC/2003/134] ; Greater Bombay Coop Bank Ltd. vs. Union Yarn Tex (P) Ltd. and Others, reported in (2007) 6 SCC 236 [LQ/SC/2007/447] ; Sate of Bihar and Others vs. Bihar Distilleries Ltd. and Others, reported in (1997) 2 SCC 453 [LQ/SC/1996/2098] and Dasiya Murpokku Dravida Kazighama and Another vs. 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 that the Court ought not to have passed an interim order which affected the right of an issuing banker. This observation of the Supreme Court, however, has to be read in the factual context of that case which arose out of an arbitration proceeding. There a letter of credit was issued by the third respondent which was not a party to the arbitration proceeding and it was in this context that the Court had occasion to make this observation and as such the case has no application to the facts of the present case.

In the case of Transmission Corp. of A.P. Ltd. (Supra) the Supreme Court while considering the scope of granting an interim order had held that an interim direction ordinarily would precede a finding of a prima facie case. When existence of a prima facie case is established, the court shall consider other relevant factors, viz., balance of convenience and irreparable injury. The Court held that the conduct of the parties was also a relevant factor. The case of Public Services Tribunal Bar Association (Supra) laid down that it is imperative upon the court while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the legislation. The case of Greater Bombay Coop. Bank Ltd. (Supra) was relied upon for a proposition that the constitutional validity of an Act can be changed only on two grounds, viz., lack of legislative competence and violation of any of the fundamental rights.

Mr. Joydeep Kar, learned Counsel appearing for the interveners in one of the appeals, had submitted that the learned single Judge had failed to consider that the Regulations made by the Medical Council of India as well as the notification issued by the State of West Bengal pertain to the domain of a policy decision of the State Government and the circumstances in which a policy decision may be challenged as laid down by the Honble Supreme Court in the case of Delhi Development Authority & Another Vs.- Joint Action Committee, Allottee of SFS Flats & Others, reported in 2008(2) SCC 672 have not been satisfied in the instant case and as such the learned single Judge ought not to have exercised his discretion in granting the interim order.

Mr. Balailal Sahoo, the learned Advocate, also appeared for another set of interveners, but adopted the submissions of Mr. Kar. The writ petitioners/ respondents contention has been 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 brought within the said notification which, according to them, is patently absurd, unreasonable and discriminatory. Thus, by the said notification some doctors have been chosen to get the benefit of weightage while the writ petitioners and many others have been denied of that without any cogent or relevant reasons.

The writ petitioners further submitted that the court below had rightly held that there was a prima facie case in their favour and the transfer policy of the government doctors was in clear conflict with the notification dated November 23, 2011. Since the challenge in the writ petition was against the government policy or the notification of the State government they were not concerned about the present appellants or anybody else and the present appellants were also not affected.

Learned advocate for the writ petitioners/ respondents has contended relying on the case of A. Janaardhana vs. Union of India, reported in AIR 1983 SC 769 [LQ/SC/1983/125] that as no relief was claimed against any individual and since the challenge was to the policy decision of the State, the writ petition was quite maintainable even without impleading the present appellants. The learned single Judge was right in not dismissing the writ petition for not impleading the appellants.

To the submission made on behalf of the appellants and the interveners that the Supreme Court had already fixed a time schedule for admission to the post-graduate courses, the respondents submitted that that was no ground for permitting the illegality of the impugned order to continue.

The respondents have relied on the case of Dorab Cowasji Warden vs. Coomi Sorab Warden and Others, reported in AIR 1990 SC 867 [LQ/SC/1990/77] for the guidelines to be followed while granting the relief of an interlocutory order in the form of a mandatory injunction. They also relied on the case of Haryana State Industrial Development Corporation vs. Sakuntala and Others, reported in (2010) 12 SCC 448 [LQ/SC/2009/1944] for the proposition that Article 14 of the Constitution of India applies to matters of government policy and such policy or action would be unconstitutional if it fails to satisfy the test of reasonableness. They have relied also on State of Himachal Pradesh and Another vs. Anjana Devi and Others, reported in (2009) 5 SCC 108 [LQ/SC/2009/575] ; Smt. Muktakesi Dawn and Others Vs. Haripada Majumdar and Others, reported in AIR 1988 Cal 25; Dr. Deepak Kumar Singh vs. Convenor, P.G. (Medical) Selection Committee 2007, reported in AIR 2007 Orissa 109; and General Manager, South Central Railway, Secunderabad and Another. Vs. A.V.R. Siddhanti and Others, reported in AIR 1974 SC 1755 [LQ/SC/1974/21 ;] ">AIR 1974 SC 1755 [LQ/SC/1974/21 ;] [LQ/SC/1974/21 ;] . 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 and 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 vs. State of M.P. and Others, reported in (1999) 7 SCC 120 [LQ/SC/1999/702] and State of M.P. and Others vs. Gopal D. Tirthani, reported in AIR 2003 SC 2952 [LQ/SC/2003/699] . 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 states cannot make rules and regulations under Entry 25 of List III of the Seventh Schedule to the Constitution in conflict with the Regulations of Medical Council of India which are covered by Entry 66 of List I of the said Schedule. It was also his contention that it was competent for the Medical Council of India to fix the minimum qualifying marks for admission to the post graduate medical courses. The Medical Council of India was also competent to lay down the rules regarding reservation of seats in the post graduate classes.

Mr. Indranil Roy, learned advocate appearing for the West Bengal University of Health Sciences, has also supported the case of the appellants. According to him, the notification issued by the State of West Bengal cannot be said to be discriminatory or arbitrary and it was within the competence of the State to issue such notification. He relied on a Division Bench judgement in the case of Dr. Arvind Bhatia vs. State of M. P. and Others, reported in AIR 2007 MP 196 [LQ/MPHC/2007/494] . It was argued by Mr. Roy that granting weightage to a certain category amongst the in-service doctors is neither irrational nor unreasonable nor ultra vires the Constitution of India.

The State of West Bengal although a party to the writ petition and although the order impugned herein was passed in their presence did not file any appeal against that in spite of the fact that the operation of the notification stayed by the learned single Judge was issued by the State of West Bengal. But they merely decided to support the appellants. Mr. Banerjee, Learned Government Pleader had initially submitted that he would not to advance any submission assailing the order passed by the learned single Judge and would prefer making submissions elaborately before the learned single Judge himself. However, he has filed a written note of submissions wherein the writ petitions have been assailed on the ground that the writ petitioners had mis-construed the legislative competence of the State to lay down the eligibility conditions for admission to post graduate courses in accordance with the Regulations made by the Indian Medical Council. Strong reliance has been placed on the cases of Dr. Ambesh Kumar vs. LLRM Medical College, Merut and Others, reported in AIR 1987 SC 400 [LQ/SC/1986/531] wherein it has been held that an order issued by the State Government laying down eligibility qualifications for admission to post graduate 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 States 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 areas to remoteness, demographic factors, etc. Their stand was that the Backward Region Grant Fund Programme of Ministry of Panchayati Raj, Government of India, was adopted to define remoteness and difficult areas in which eleven districts of West Begnal have been figured out. The State also relies on the failure on the part of the writ petitioners to point out any alternative objective criteria for defining remoteness and difficult areas. Another aspect of the stand taken by the State is based on the case of Transmission and Dock Labourers Commission and Another vs. Mumbai Port Trust and Another, reported in (2011) 2 SCC 575 [LQ/SC/2010/1231] wherein the Supreme Court has clarified the law pertaining to classification under Article 14 of the Constitution of India to mean that it was reasonable or rational and such classification will be considered valid if it satisfied the test of social conduciveness. The Supreme Court had held that if a classification is conducive to the functioning of the modern society then it is certainly reasonable and rational and there is no violation of Article 14 of the Constitution. Lastly, the State referred to the guidelines in connection with the transfer policy which created three categories of areas and about 2/3rd of the doctors in government services are from 4 to 5 districts in and around Kolkata and hence 3 to 4 divisions had been laid down for gradual movement from periphery to residence by the time of their retirement and to ensure fairness in the service career of a doctor.

We have perused the records and heard the rival contentions of the learned advocates for the respective parties. Submissions have been made before us touching on the merit of the main writ petitions pending before the learned single Judge although at this stage we are merely concerned with the propriety of the impugned order passed by the learned single Judge. Learned advocates addressed us on the merits of the writ petitions either to establish that there was no justification for passing the interim order or to justify the interim order passed by the court. We, however, have to consider only whether the writ petitioners could make out a prima facie case justifying the interim order and for that a prima facie appreciation of the points involved in the writ petitions as well in the various appeals is imperative.

We are satisfied that there were good and valid reasons for the prima facie satisfaction recorded by learned single Judge. Reliance was placed on the case of State of M.P. and Others vs. 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. and Others vs. Gopal D. Tirthani (Supra) made provisions for the entrance test to be conducted by the relevant State Government. The cases relied on by the learned 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 cannot be said to be erroneous if he has found a prima facie case which required consideration. We feel that the respondents/ writ petitioners have not only a prima facie case but an arguable one too.

The contention that the order under appeal does not record any reason for passing the same is perhaps not a valid challenge to the order impugned. The learned single Judge has very specifically found that there was a prima facie case in favour of the writ petitioners. That by itself provided good and sufficient reasons for passing the impugned order. In the case of Smt. Muktakesi Dawn and Others Vs. Haripada Majumdar and Others (Supra) a Division Bench of our Court while considering a proviso to rule 3 of Order XXXIX of the Code of Civil Procedure had clearly held that the mandate of recording reasons as provided in the said proviso is not that mandatory to warrant reversal of an order solely on the ground of omission to record reason. The court held that if there were materials on record to show that there were good reasons for passing an ex parte injunction order, the order could not be set at naught solely on the ground that the court while making the order did not record reasons for proceeding ex parte. That judgement was delivered in the context of a statutory mandate contained in a proviso to rule 3 of Order XXXIX of the Code of Civil Procedure for recording reasons while granting an ad interim ex parte injunction. An ex parte order would still be justified if materials on record establish good reasons for passing that order. The ratio of that judgement shall apply with all its force to the present case particularly when this order was not passed ex parte. As such, even if the learned single Judge has not specifically discussed the facts relating to balance of convenience and irreparable injury we hold that there are materials on record justifying the grant of an interim order. The decision relied on by Mr. Basu in the case of Dorab Cowasji Warden (Supra) concerning the guidelines laid down in the case of a mandatory injunction has no application to the facts of the present case.

Similarly, the challenge to the notification on the ground of improper classification has also not been properly and satisfactorily explained as a prima facie case by the State of West Bengal. The rationale behind choosing some areas as remote and difficult within areas of Kolkata Municipal Corporation 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 grievance made by Mr. Basu that the notification will have the effect of conferring benefit upon a certain class of doctors retrospectively and that was a discriminatory one.

The reply given by the appellants that the State was discharging its administrative powers for our present purposes does not appear to be an answer for reversing the order impugned in the appeal. It does not appear to be a case that the State Government has merely declared certain areas as remote and difficult. The notification went beyond it and stipulated how the merit at the entrance test shall be determined by giving an incentive at a certain per cent.

Mr. Basu made a very specific submission that the competent State authority referred to in the concerned Regulations of the Medical Council of India could never mean the State Government, it meant the State authorities of the Medical Council of India. To this the appellants submission was that the State was not legislating. This seems to be an inadequate reply. Even if the State was not legislating how by the words competent State authorities the State Government could issue the notification has not been clarified either by the appellants or the State.

Mr. Dutt referred to the case of Gopal Tirthani (Supra) as an answer to the prima facie view taken by the learned single Judge. We have already discussed the said case before. Mr. Dutts submission that the impugned notification was not retrospective of operation is apparently not sustainable in view of the fact that incentive marks have been directed to be given from this academic session on the basis of the three years posting counted from the past.

It is true that the classification in terms of human development index cannot ordinarily be interfered with by a court of law. But still a larger question apparently arises for consideration, i.e., whether a regulation, if it is otherwise found to be not valid, can still be validated in the name of local needs as sought to be made out by the appellants.

Needless to say that these are our prima facie observations. These questions are to be decided by the learned single Judge while disposing of the writ petition. The learned single Judge will not be in any manner influenced by our prima facie observations.

For the reasons aforesaid we are of the view that the present appeals are devoid of merits. The contentions raised by the interveners are also likewise rejected. We hold that the interim order granted is just and proper calling for no interference by us at this stage.

Thus, all the appeals are dismissed. With the dismissal of the appeals the connected applications for stay have become infructuous and they are also accordingly dismissed.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.

I agree.