PG Doctors must get Incentive Marks for COVID Duty Recruitment in Govt Hospitals: Madras HC

Chennai: The Madras High Court bench recently held that medical practitioners and postgraduate doctors who were engaged in COVID-19 duty in government hospitals should be granted incentive marks.

Such directions have been issued by the HC bench while considering the pleas by the groups of postgraduate doctors who challenged the Government's decision to not consider the COVID-19 duty performed by them as PG medicos, which is part of their 36-month training period, for incentive marks. Meanwhile, the Government Order of granting incentive marks for COVID-19 duty in Government Hospitals was also challenged by the Private Doctors.

Extending the relief to all such similarly placed PG medical graduates as the petitioners, the bench comprising Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy clarified, "We make it clear that not only in respect of the Post-Graduate students who are the petitioners before this Court, but, in respect of all Post-Graduate students who were on COVID – 19 duty in Government Hospitals, can approach the appropriate authority mentioned in the Government Order for issue of COVID Duty Certificate within a period of 10 days from today and upon being approached, the respondents shall grant them the certificates within 15 days from today and the same shall be taken into account for grant of incentive marks as per the criteria and marks mentioned in the paragraph No.5 of the impugned Government Order."

The bench also addressed the contention that the rules of a game cannot be changed during the course of the game and noted that the issue regarding the grant of incentive marks refers to the pandemic period and therefore it needs to be considered differently.

"The present grant of incentive marks is also a fall out of the COVID - 19 pandemic and therefore, we hold that the normal rule of changing the game during the course of the game also requires a different consideration in this context and the said rule cannot come in the way of grant of incentive marks to these Medical Officers who put their life at risk. Gratitude and recognition for service to mankind is very much part of our constitutional jurisprudence and if the incentive is not granted in the present selection, then it can never be," observed the bench.

Filing the plea, the private doctors challenged the Government Order dated 17.08.2023, through which the Tamil Nadu Government decided to grant incentive marks in the Government recruitment process to those Health Professionals who worked for COVID-19 related duty in regular Government appointments.

It was argued by them that they participated in the selection with a legitimate exception that no such weightage would be granted. However, in the middle of the selection process, the rules of the game were changed. They further argued that even the Private Doctors working in their clinics were also responsible for identifying COVID-19 cases and some private hospital also had COVID-19 wards. Referring to these factors, they alleged that the Government Order was discriminatory.

Meanwhile, the postgraduate doctors, who filed the plea informed the Court that following the Government Order, they approached the concerned authorities for the issuance of COVID Duty Certificate to them in order to claim weightage. However, issuing a communication dated 23.08.2023, the authorities rejected their request on the ground that the COVID-19 duty performed by them as PG students, which is part of their 36-month training period is not being considered for incentive marks. Therefore, challenging the concerned communication and the Government Order in as much as it excluded their duty in COVID-19 wards for grant of incentive marks, they approached the HC bench.

These students argued that even though it was not their regular duty, 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.

Responding to these plea by the private doctors, the authorities informed that it was decided to extend the incentive for the Medical Officers who worked in Government Hospitals. It was further submitted that about 84% of the COVID-19 patients in the State were treated only in the Government Hospitals. These doctors who were unsuccessful in the earlier selection process, and whose list was readily available with the Government responded on short notice and call and volunteered by putting their life at risk and rendered selfless and yeoman service in the COVID - 19 Wards, submitted the State.

At this outset, reliance was also placed on the Supreme Court's directions to the Central and State Governments to suitably incentivise the Health Care Professionals and the consequent Interim Order issued by the Madras High Court.

With respect to the Post-Graduate students, the authorities argued that it was part of their training and their services cannot be considered as that of Medical Officers. In any event, the duty in COVID-19 wards is also considered as part of their training. They had to be at the Hospital performing their duties as PostGraduate students. Therefore, the incentive which is meant for the Medical Professionals who volunteered to perform COVID-19 duty is not extended to them.

While considering the matter and addressing the contention of the change of rule during the course of the game, the HC bench observed,

"COVID - 19 pandemic brought in an extreme and abnormal situation. Even the spouse and children of a person who died of COVID - 19 did not even come near and the body was packed in a bag and disposed off. The right of free movement throughout the country, right to assemble, right to celebrate weddings with friends and relatives were all curtailed. Places of worship, where worship and rituals should not stop even in war time, stood locked and closed. The inviolable law of limitation prescribing the last date for approaching Courts stood extended. Therefore, there was departure from normalcy in every aspect and that stood extended even to certain legal principles and of course, the approach is ad hoc and ad hominem applicable only in respect of the pandemic."

Holding that the issue of grant of incentive marks is also a fall-out of the COVID-19 pandemic, the bench held that the normal rule of changing the game during the course of the game also requires a different consideration in this context and the said rule cannot come in the way of grant of incentive marks to these Medical Officers who put their life at risk. It added,

"Gratitude and recognition for service to mankind is very much part of our constitutional jurisprudence and if the incentive is not granted in the present selection, then it can never be."

In this respect, the bench referred to the Supreme Court order in the case of K.Manjushree Vs. State of Andhra Pradesh, and Tej Prakash Pathak Vs. Rajasthan High Court, and Jasbir Singh Chhabra and Ors. Vs. State of Punjab and Ors.

Although the bench clarified that as per the existing legal position, in a selection process, after the notification, the rules cannot be changed, the bench also noted,

"First of all, these petitioners could have been little more empathetic towards the plight of their counterparts. Second, legitimate expectation should be founded on a sanction of law and cannot be wishful thinking, desire or hope and they could not have thought that the government will not implement the directives of the Hon’ble Supreme Court of India..."

"Further, it cannot be said that in this case any eligibility criteria or the selection process is altered to as to grant any unfair advantage to any person. Incentives for COVID - 19 duty is part of the merit of eligible candidates. Thus, viewing from any angle, we answer the question that merely because the impugned government order introduces the incentive marks after the notification and examination, the same is not bad in law," it also observed.

The bench noted that even though the services of private doctors were equally laudable,

"the sheer number of patients treated by the Government Doctors puts them on a separate pedestal. Every citizen of this country witnessed their selfless service either being admitted into one of those COVID - 19 wards or attending to other near and dear suffering or at least witnessed the visuals on television."

Therefore, upholding the Government Order deciding to incentivise the doctors for their COVID-19 duty, the bench observed,

"The wards were overflowing. These souls have to be in their special PPE Suits and it took two hours for them to make one round of checking on every patient in the ward. There was difficulty in even having their food and using rest rooms. Serious patients were moved to ventialators and bodies of those who succumbed lay in the verandah with the howl and cry of the relatives, near and dear. Day in and day out they withstood this routine, quarantined from their families. 84% of the patients were treated in government hospitals. Further it is also pleaded on behalf of the state that there is no verifiable mechanism to ensure the claim of the private doctors about their COVID - 19 duty. This apart, there is no pleading before us or claim that they also worked in private hospital COVID - 19 ward during the period and that the marks should be granted to them. In the absence thereof and for the aforesaid reasons, the state is very well justified in making the classification of medical officers on duty at the Government Hospitals and the same is not arbitrary or violative of Article 14 and 16 of the Constitution of India."

While considering the question of PG medical students, the bench agreed that the services rendered by them was part of their 36-month period training. However, it also observed, "It is not in dispute that they put in the same kind of duty and underwent the same rigors as that of the other medical officers recruited by the State Government."

Referring to the "Medical Officers", who were temporarily appointed by the State to deal with the COVID-19 crisis and the PG medical students, the bench observed that both are registered medical practitioners eligible to be appointed as Assistant Surgeons.

Further, the bench noted that

"...the number of patients treated by these Post-Graduate medical students and the amount of duty they have put in all these Government wards is no less when compared to the temporary Medical Officers who have been recruited. As a matter of fact, the Post-Graduate medical students did not even have an option...Thus, when the term “Medical Officer” is not expressly defined in the special rules and when both the rules and the Government Order use the said phrase in a common manner across cadres to mean ‘Doctors’, we hold that the same would also mean the Post-Graduate students in Government Hospitals in the content of grant of incentive marks for the selfless service rendered by them in COVID – 19 wards putting themselves and their lives to risk."

Although the bench did not find any error in the Government Order to incentivise the doctors for COVID-19 duty, the bench held that "...it is only the interpretation given by the officials in the consequential order impugned in the Writ Petition, dated 23.08.2023 so as to construe the Government Order as excluding the PostGraduate on the ground that it is part of the training period is not in order. Besides, this incentive should doubly count in public interest also as these candidates are already Post-Graduates."

Therefore, the bench ordered, "We accordingly answer this question holding that the Post-Graduate students in Government Hospitals will also be eligible for the incentive marks and consequently, quash the impugned letter bearing reference No.081353 / ME2 / 1 / 2023, dated 23.08.2023."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/madras-hc-order-225571.pdf

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