Madras High Court Upholds Grant Of Incentive Marks In Recruitment To Doctors For COVID Duty In Govt Hospitals

The bench of Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy was hearing the pleas filed by applicants who had participated in the recruitment to the post of Assistant Surgeon (General). The challenge was against the GO issued by the Government of Tamil Nadu dated August 17, 2023 deciding to grant incentives to those Health Professionals who worked for COVID - 19 related duty in regular Government appointments.

“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,” the court observed.

The private doctors who had participated in the recruitment process challenged this GO contending that the rules of the game could not be changed in the course of the game. It was submitted that the examinations were already over and the results were partly declared. Thus, it was claimed that changing the rules for the present selection was arbitrary. It was also claimed that even private doctors had treated Covid patients in private hospitals and thus, the incentives should be applicable to them also.

On behalf of the Post-Graduate students, it was submitted that more patients were treated by the Post-Graduate students and they underwent the same trauma, and risk and put in the same selfless service as that of the medical officers. Thus, they contended that the incentive should also be applicable to them. It was also argued that the State’s classification was unreasonable and had no nexus with the object sought to be achieved.

The State however objected to the plea by submitting that there was no alteration of eligibility criteria or selection process. The State also submitted that there was an intelligible differentia in leaving out the private doctors as 84% of the COVID patients were treated in Government Hospitals and there was no verifiable mechanism with respect to private doctors’ claims of treating COVID patients.

With respect to the Post-graduate students, the State submitted that their service was only part of their training and could not be considered as that of Medical Officers. Thus, the state contended that the compulsory service rendered by Post-Graduate students could not be considered the same as that of the medical professionals who volunteered to perform the Covid-19 duty.

The court observed that since Covid-19 brought in an extreme and abnormal situation, there was a departure from normalcy in every aspect. The court added that in the present case, none of the rules mentioned in the notification had been altered. Noting that the grant of incentives was a part of the merit of the candidates, the court observed that the grant of incentives after the notification and examination was not bad in law.

The court also noted that though the services rendered in the private sector was also equally laudable, the number of patients treated by the Government Doctors puts them in a separate pedestal. Further, considering that there was no mechanism to ensure the claim of the private sector doctors and that a claim in this regard was not made, the court observed that the state was justified in making the classification of medical officers in Government Hospitals.

With regard to the Post-Graduate students, the court noted that the term “Medical Officers” meant a person who was working in any capacity with the qualified medical degree and would also include the Post-Graduate students as they were also registered medical practitioners with eligible MBBS degree treating patients with COVID-19. The court added that the observation was not limited to the petitioner Post-Graduate Students but to all Post0Graduate students who were on COVID-19 duty in Government Hospitals.

Counsel for the Petitioner: Mr.Suhrith Parthasarathy, Mr.Vineeth Subramaniam for Mr.V.Pavel, Mr.R.Thamaraiselvan, Ms.Amritha Sathyajith

Counsel for the Respondent: Mr.AR.L.Sundaresan, Additional Solicitor General of India, Assisted by Mr.Rajesh Vivekanandan, Mr.Ramanlaal, Additional Advocate General, Assisted by Mr.T.K.Saravanan, Government Advocate, Mr.J.Ravindran, Additional Advocate General, Assisted by Mr.L.Murugavelu

Citation: 2023 LiveLaw (Mad) 355

Case Title: Dr. D.Hariharan and Others v. Union of India and Others

Case No: W.P.Nos.25827, 25785 and 27568 of 2023