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Court, while stressing that the COVID-19 pandemic brought in an extreme and abnormal situation, held that the present grant of incentive marks was also a fallout of the COVID-19 pandemic and therefore the normal rule of changing the game during the course of the game also required a different consideration in this context
The Madras High Court has recently upheld the decision of the Tamil Nadu government to grant incentive marks during regular government appointments to doctors who served in COVID-19-related duties in government hospitals.
Three writ petitions were filed by multiple doctors who had applied for direct recruitment to fill 1021 vacancies for the position of Assistant Surgeon (General), as advertised by the Medical Services Recruitment Board (MRB) last year.
The doctors challenged the order issued on August 17, 2023, by the Government of Tamil Nadu in pursuance of which 2-5 marks will be awarded to the medical officers in the aforementioned selection process upon the furnishing of the COVID Duty Certificate.
Before the high court, the petitioner doctors contended that they participated in the selection process with a legitimate exception that no such weightage would be granted and it was only later, after the notification had been issued and the selection process was underway, that the rules of the game had been changed.
They also alleged the impugned government order was discriminatory as even private doctors working in their clinics were also responsible for identifying COVID-19 cases and some private hospitals also had COVID-19 wards but the benefit of incentive marks was only extended to the medical officers who worked in government hospitals.
On the other hand, the respondent authorities argued that about 84% of the COVID-19 patients in the State were treated only in the government hospitals and 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.
The respondents further submitted that the Supreme Court of India had directed the Central Government and the State Governments to suitably incentivise these Health Care Professionals, pursuant to which, the high court had passed an Interim order in a writ petition by doctors seeking such incentives, therefore, it was decided to grant incentive marks as stated in the government order.
It does not in any manner alter the eligibility criteria nor any tinkering is made to the selection process, the respondent claimed.
The division bench of Chief Justice SV Gangapurwala and Justice D Bharatha Chakravarthy, while stressing that the COVID-19 pandemic brought in an extreme and abnormal situation, held that the present grant of incentive marks was also a fallout of the COVID-19 pandemic and therefore the normal rule of changing the game during the course of the game also required a different consideration in this context.
"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," the bench held.
Further, regarding discrimination against private doctors, the division bench observed that while the services of the doctors in the private sector were equally laudable, the sheer number of patients treated by government doctors put them on a separate pedestal.
It also highlighted that it was not the claim of the petitioner doctors that they also worked in a 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 and we answer the question accordingly,' the bench, therefore, held.
Moreover, regarding postgraduate (PG) students, the court agreed that they should benefit from the government order but disagreed with the interpretation that excluded them. Court held that the government order excluding the PG students on the ground that it was part of their training period was not in error.
However, the court ordered that PG students, including those not involved in the present case, could approach the appropriate authority for a COVID Duty Certificate within ten days of the court order and, if granted, the same shall be taken into account for the grant of incentive marks as per the criteria and marks mentioned in the paragraph No.5 of the impugned government order.
Case Title: Dr. D.Hariharan and Others v. UOI and Others and connected matters
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