The judgment clarified the distinction between continuity of service and actual service for the purpose of granting incentive marks, emphasizing the need for actual service in remote/difficult areas to qualify for incentive marks.

"Doctors Differ; Patients Suffer"

The petitioners are before this Court challenging Clause 9(a)(i) of the Prospectus for admission to the Post Graduate Degree/Diploma Courses in Tamil Nadu Government Medical Colleges and Government Seats in Self-Financing Medical Colleges affiliated to the Tamil Nadu Dr. MGR Medical University and Raja Muthiah Medical College affiliated to Annamalai University for 2018-2019, and to declare the same as unconstitutional. The said Clause 9(a)(i) reads as follows:

"9 (a). The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats:

i. Medical Officers selected by the TNPSC/MRB through Competitive written examination/Special qualifying Examination and appointed in Tamil Nadu Medical Services with minimum Two Years of continuous service excluding leave period such as Earned Leave, Unearned Leave on Medical Certificate, Unearned Leave on Private Affairs, Maternity Leave and any other unauthorised absence, as on 31.03.2018."

2. The petitioners are aspiring to undertake further studies in Post Graduate course and all of them were qualified in NEET Examination and have obtained various ranks. The first respondent-Principal Secretary to Government, Health and Family Welfare Department, issued G.O.(D).No.411, Health and Family Welfare (MCA-1) Department, dated 15.03.2018, based on the recommendation of the third respondent-Selection Committee, represented by its Secretary/Additional Director of Medical Education, with regard to the service candidates for the purpose of allotment of seats which is the subject matter of the Writ Petitions and the said Clause is extracted above.

3. The petitioners are all in-service candidates. The sum and substance of the contention of the petitioners is that the lady Doctors who have taken maternity leave, have been excluded for the purpose of undertaking Post Graduate Course, as the period of leave has been excluded from Earned Leave from the purview of the continuous service. The Earned Leave will have to be taken into account without break in service and it cannot be treated on par with unauthorised absence. In respect of the previous year 2017-2018, the relevant Clause in the Prospectus in Clause 10(a)(i) reads as follows:

"10(a): The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats

i. Medical Officers selected by the TNPSC/MRB through Competitive written examination/Special qualifying Examination and appointed in Tamil Nadu Medical Services with minimum of Two Years continuous service as on 31.03.2017."

4. For the year in question, namely 2018-2019, the relevant Clause with regard to the eligibility criteria has been modified, which is the subject matter of the present Writ Petitions and the same has been extracted in paragraph 1 above.

5. According to the petitioners, the petitioners being in-service candidates, are eligible to be admitted in the Post Graduate Course and that the women candidates who are on maternity leave, have been deprived of the period of Earned Leave/Maternity Leave availed of by them for the purpose of delivery, for calculating two years of service, which is opposed to law and unconstitutional.

6. That apart, the service rendered in the remote area/hill area/difficult area will have to be taken into account for the purpose of granting incentive marks upto the maximum period of three years in the said areas and the period shall not only be treated as continuous service, but they are also entitled to incentive mark as if they have rendered actual service.

7. The Government has issued G.O.Ms.No.75, Health and Family Welfare (MCA-1) Department, dated 09.03.2018, in which not only the continuous service was ordered to be taken into account, but also the partial service has got to be rewarded as incentive, subject to completion of minimum period of one year. It was further ordered therein that in case of a Doctor in any post