Back
2023 Supreme(Online)(Mad) 83395
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2023 CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY W.P.Nos.25827, 25785 and 27568 of 2023 In W.P.No.25827 of 2023 :
1. Dr.D.Hariharan
2. Dr.M.Srithar 3. Dr.Kishor S.
4. Dr.Praveen B. .. Petitioners Versus
1. The Union of India Represented by its Secretary to Government, Ministry of Health and Family Welfare, Room No. 201-D, Nirman Bhawan, New Delhi – 110 011.
2. The State of Tamil Nadu Represented by its Principal Secretary to Government, Health and Family (MCA-1) Department, Fort St. George, Chennai – 600 009.
3. The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai – 600 010.
4. Medical Services Recruitment Board (MRB), Represented by its Chairperson, 7th Floor, DMS Buildings, 358, Anna Salai, Teynampet, Chennai – 600 006.
5. National Medical Commission, Represented by its Secretary, Pocket 14, Sector – 8, Dwaraka Phase I, New Delhi – 11 077. .. Respondents In W.P.No.25785 of 2023 :
1. Dr.T.Ajay
2. Haji Abdul Salam
3. Akalya K
4. Amilthan R
5. Ari Raja Nizhanth
6. Atchaya K 7. Bharath S
8. Bharathwaj R 9. Bhavashree M
10. Chinna Durai D 11. Dinesh Kumar S
12. Jaganneethi
13. Karthik K
14. Karthikeyan R
15. P.Kathiravan
16. Mohana E 17. Moniha R
18. Prabusankar A G
19. Priyatharisini V 20. Rangesh T K S 21. N.Silamparasan
22. A.Sowmya
23. Sujin Kumar G
24. Suresh K
25. Vijay Sooriya M .. Petitioners Versus
1. The Principal Secretary, Government of Tamil Nadu, Health and Family Welfare Department, Fort St.George, Chennai – 600 009.
2. The Director of Public Health and Preventive Medicine, 359, Anna Salai, Teynampet, Chennai – 600 006.
3. The Director of Medical Education, Poonamalle High Road, Kilpauk, Chennai – 600 010.
4. The Member Secretary, The Medical Services Recruitment Board, 7th Floor, DMS Building, 359, Anna Salai, Teynampet, Chennai – 600 006. .. Respondents In W.P.No.27568 of 2023 :
1. Dr.A.Thamilkkovan
2. Dr.R.Sukanya .. Petitioners Versus
1. Government of Tamil Nadu, rep by its Principal Secretary to Government, Health and Family Welfare (B1) Department, Secretariat, Chennai – 600 009.
2. The Director of Medical Education, Chennai – 600 010.
3. The Member – Secretary, Medical Services Recruitment Board, DMS Building, 7th Floor, 359, Anna Salai, Teynampet, Chennai – 600 006. .. Respondents Prayer in W.P.No.25827 of 2023 : Writ Petition under Article 226 of the Constitution of India praying for a Writ of Declaration declaring G.O.(Ms).No.278, dated 17.08.2023 issued by the second respondent and the consequential letter bearing Ref No.081353/ME2/1/2023, dated 23.08.2023, issued by the 3rd respondent as illegitimate, illegal and ultra vires the Constitution of India insofar as it fails to accord weightage marks to post graduate doctors who worked in Government Medical Institutions during the COVID – 19 pandemic in reckoning the ranks secured by them for the post of Assistant Surgeon in the examinations held by the fourth respondent pursuant to its Notification No.11/MRB/2022, dated 11.10.2022.
Prayer in W.P.No.25785 of 2023 : Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the impugned notification G.O.MS:278, dated 17.08.2023 issued by the 1st respondent and quash the same as ultra vires and unconstitutional and consequently direct the 4th respondent to publish the final results of the Computer Based Examination held 25.04.2023 for the post of Assistant Surgeon.
Prayer in W.P.No.27568 of 2023 : Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the 1st respondent in G.O.Ms.No.278 Health and Family Welfare (B1) department, dated 17.08.2023 to the limited extent of Para 5(10(i) thereof and the consequential order passed by the 2nd respondent in his Ref.No.081353/ME/1/2023, dated 23.08.2023 in its entirety, quash the same and issue consequential directions to the respondents herein to grant incentive marks to the petitioners for their service rendered during COVID – 19 pandemic period as Post Graduates between March, 2020 and May, 2021 and issue revised order to that effect.
In W.P.No.25827 of 2023 :
For Petitioners : Mr.Suhrith Parthasarathy For Respondents : Mr.AR.L.Sundaresan, Additional Solicitor General of India, Assisted by Mr.Rajesh Vivekanandan, for R1 : Mr.Ramanlaal, Additional Advocate General, Assisted by Mr.T.K.Saravanan, Government Advocate, for RR-2 and 3 : Mr.J.Ravindran, Additional Advocate General, Assisted by Mr.L.Murugavelu, for R4 In W.P.No.25785 of 2023 :
For Petitioners : Mr.Vineeth Subramaniam for Mr.V.Pavel For Respondents : Mr.Ramanlaal, Additional Advocate General, Assisted by Mr.T.K.Saravanan, Government Advocate, for RR-1 to 3 : Mr.J.Ravindran, Additional Advocate General, Assisted by Mr.L.Murugavelu, for R4 In W.P.No.27568 of 2023 :
For Petitioners : Mr.R.Thamaraiselvan For Respondents : Mr.Ramanlaal, Additional Advocate General, Assisted by Mr.T.K.Saravanan, Government Advocate, for RR-1 and 2 : Mr.J.Ravindran, Additional Advocate General, Assisted by Mr.L.Murugavelu, for R3
The court held that the impugned Government Order allowing incentive marks for COVID-19 medical duties was legal, recognizing the equal treatment of Post-Graduate students performing such duties.
Headnote:(A) Constitution of India - Article 226 - Impugned Government Order granting incentive marks for COVID-19 duty by the State government - Legality and non-discriminatory basis upheld - Immediate implementation of incentives directed for Health Care Professionals due to Supreme Court directives. (Paras 5, 6, 7, 8)
(B) Recruitment Process - Government Orders and eligibility criteria - No alteration in selection process during recruitment - Need for clarity on the term 'Medical Officers' to include COVID-19 duties performed by Post-Graduate students - Principles of fair expectation and discrimination under Article 14 considered. (Paras 1.1, 1.2, 1.3, 4)
COMMON ORDER
(Order made by the Hon'ble Mr.Justice D.Bharatha Chakravarthy)
A. The brief facts of the case :
The brief facts leading to the filing of these petitions are as follows:-
On 11.10.2022, the Medical Services Recruitment Board (MRB), Government of Tamil Nadu, issued Notification No.11/MRB/2022, in and by which, it invited applications for direct recruitment to 1021 vacancies in the post of Assistant Surgeon (General) in the scale of pay of Rs.56,100-1,77,500. The selection was by a process of written examination consisting of two papers, namely, Tamil Language Test and the Main Paper. All the writ petitioners had applied and participated in the selection process. The examination was conducted on 25.04.2023. On 23.06.2023, the Tamil Eligibility Test Result and the Final Answer Keys were released by the MRB. The objections to the key answers were also considered and the keys are finalised.
1.1. While so, on 13.07.2023, a group of Doctors approached this Court by way of W.P.No.20742 of 2023, seeking for award of weightage marks for the duty rendered by them in COVID - 19 pandemic wards. Considering the fact that no scheme was put in place by the Government of Tamil Nadu, an interim stay was granted against issuing any appointment orders.
1.2. Thereafter, on 17.08.2023, the Government of Tamil Nadu issued G.O.(Ms).No.278, dated 17.08.2023, in and by which, it was decided to implement the direction of the Hon’ble Supreme Court of India in Suo Motu W.P.(Civil) No.3 of 2021 to grant incentives to those Health Professionals who worked for COVID - 19 related duty in regular Government appointments. Accordingly, 2-5 marks were awarded to the Medical Officers as per the criteria contained in paragraph No.5 of the Government Order in respect of the above selection upon furnishing of the COVID Duty Certificate as directed in the Government Order.
1.3. Aggrieved by the said Government Order, certain Doctors, who have made their applications but have not done any COVID – 19 duty in Government Hospitals, have filed W.P.Nos. 25785 and 27568 of 2023. It is their contention that they participated in the selection with a legitimate exception that no such weightage will be granted. However, after the notification was made and the selection process was midway, the rules of the game have been changed. It is their further contention that even private Doctors working in their clinics were also responsible for identifying COVID - 19 cases and some private Hospitals had also COVID – 19 wards. Therefore, the impugned Government Order is also discriminatory.
1.4. The writ petitioners in W.P.No.25827 of 2023 have also applied for the post. Upon the G.O. being issued, they also approached the concerned authority for the issuance of COVID Duty Certificate to them so as to claim weightage. However, by the communication impugned in the writ petition, dated 23.08.2023, their request was rejected on the ground that the COVID - 19 duty performed by them as Post-Graduate Students, which is part of their 36 month training period is not being considered for incentive marks. Hence, they challenge the said communication and the Government Order in as much as it excludes their duty in COVID - 19 wards for grant of incentive marks. It is their contention that it was not their regular duty, but, they were made to work in COVID – 19 wards in view of the exigency. Therefore, when the purpose is to incentivise the Health Care Professionals, they should also have been granted the marks and as such, to the said extent, the impugned orders are to be interfered.
B. The case of the respondents :
2. The Writ Petitions are resisted by the respondents by filing detailed counter-affidavits. As regards the claim of the private Doctors, the case of the respondents is that it was decided to extend the incentive for the Medical Officers who worked in Government Hospitals. Further, about 84% of the COVID -19 patients in the State were treated only in the Government Hospitals. These docto
