Dr. G.P.Arulraj,case against Pg medical counciling affidavit

IN THE HIGH COURT OF JUDICATURE AT MADRAS
[Special Original Jurisdiction]

W.P. No. of 2020

  1. Dr. G.P.Arulraj,
    S/o. S.Panchatcharam,
    Senior Resident in Anaesthesiology,
    Government Stanley Medical College,
    Chennai
  2. Dr. P.Sridevi,
    D/o. S.Pichai Pillai,
    Casualty Medical Officer,
    Government Mohan Kumaramangalam
    Medical College & Hospital,
    Salem
  3. Dr. P.Kalaivani,
    D/o. Pushpakaran,
    Assistant Surgeon,
    Mobile Medical Unit,
    Eriyur, Pennagaram
    Dharmapuri District
  4. Dr. A.Shanmugapriya,
    D/o. K.Alagappan,
    Assistant Surgeon,
    Government Hospital,
    Tambaram at Chrompet,
    Chengalpattu District
  5. Dr. R.Rajalakshmi,
    D/o. N.Radhakrishnan,
    Assistant Surgeon,
    Primary Health Centre,
    Perumbakkam,
    Chengalpattu District
  6. Dr. S.Prasanna,
    D/o. S.Muthukrishnan,
    Medical Officer,
    Chennai Corporation,
    Zone-XIV, Perungudi,
    Chennai Petitioners

Versus

  1. The Government of India,
    Rep. by its Secretary to Government,
    Ministry of Health and Family Welfare,
    Room No.348, ‘A’ Wing, Nirman Bhavan,
    New Delhi – 110 011
  2. The State of Tamil Nadu,
    Rep. by its Principal Secretary to Government,
    Health and Family Welfare Department,
    Secretariat, Fort St.George,
    Chennai – 600 009
  3. The Director of Medical Education,
    Kilpauk,
    Chennai – 600 010
  4. The Secretary,
    Selection Committee,
    Directorate of Medical Education,
    Kilpauk,
    Chennai – 600 010
  5. Board of Governors in Supersession of Medical Council of India,
    Rep. by its Secretary General,
    Pocket 14, Sector-8,
    Dwaraka, New Delhi – 110 077 Respondents

AFFIDAVIT OF AFFIDAVIT OF Dr. G.P.ARULRAJ
I, Dr.G.P.Arulraj, S/o. S.Panchatcharam, Hindu, aged about 40 years, residing at No.151/1A, Portuguese Church Street, Chennai – 600 001, do hereby solemnly affirm and sincerely state as follows:

  1. I submit that I am the 1st Petitioner herein and I am well acquainted with the facts of the case. I am filing this affidavit on behalf of other Petitioners as well.
  2. I submit that all the Petitioners herein are qualified with MBBS degree, working as Medical Officers on appointment in Tamil Nadu Medical Service, aspiring for admission to Post Graduate Medical Course for 2020-21 session on awarding of incentive/weightage marks for the services rendered by them in Critical Life Saving interventions demanding 24 hours duty, as per the recommendations of the Committee constituted under the Chairmanship of retired High Court Judge viz., Hon’ble Mr.Justice A.Selvam vide G.O.Ms.No.536 Health and Family Welfare Department dated 15.11.2018 consequent to the orders passed in W.A.No.1051 of 2018 etc., cases dated 17.05.2018 and the Petitioners are aggrieved against the order issued by the 2nd Respondent vide letter No.11787/MCA1/2020-1 dated 24.04.2020, repudiating to implement the Committee’s report to grant incentive marks for Medical Officers working in Critical Care Life Saving interventions units demanding 24 hours duty is concerned. Since the Petitioners are similarly placed persons, commonly aggrieved against the order of 2nd Respondent dated 24.04.2020 served on 25.04.2020, if they are permitted to file a single Writ Petition, no one would be prejudiced.
  3. I submit that the 1st Petitioner Dr.G.P.Arulraj is posted as Senior Resident in Liver Transplant/Cadaver (Brain dead donor) Maintenance Unit in Government Stanley Medical College on 08.07.2009, where he is working for the last 10 years performing duties involving 24 hours duty to manage the critically ill patients with constant vigilance, utmost care, commitment and high degree of clinical acumen which requires Critical Life Saving interventions demanding 24 hours duties in the following units:
    i) Deceased donor liver transplantation
    ii) Post operative liver intensive care unit (LICU)
    iii) Cadaver (brain and donor) maintenance unit
    iv) Institute of surgical gastroenterology
  4. I submit that the 2nd Petitioner Dr.P.Sridevi posted as Casualty Medical Officer in Government Mohan Kumaramangalam Medical College, Salem on 02.02.2017 which requires Critical Life Saving interventions demanding 24 hours duty. The work pressure is more on the Medical Officers working in Casualty than other fields and they are working under great stress with huge case load of different specialities and helping the patients to get appropriate care in quick time especially in the golden hour of the disease, apart from looking after medico-legal cases, providing Final Opinion, Wound Certificate and further maintaining cordial relationship between Medical, Police and Judiciary departments and attending Court duties etc.
  5. I submit that the 3rd Petitioner Dr.P.Kalaivani presently working as Assistant Surgeon in Mobile Medical Unit, Eriyur, Pennagaram, Dharmapuri District earlier worked as Casualty Medical Officer (CMO) from 19.09.2013 to 09.12.2019. The service as CMO requires critical life saving interventions demanding 24 hours duty with high work pressure than the other fields and she was working under great stress with huge case load of different specialities and helping the patients to get appropriate care in quick time especially in the golden hour of the disease, apart from looking after medico-legal cases, providing Final Opinion, Wound Certificate and further maintaining cordial relationship between Medical, Police and Judiciary departments and attending Court duties etc.
  6. I submit that the 4th Petitioner A.Shanmugapriya was initially appointed as Assistant Surgeon in Tamil Nadu Medical Service on 21.08.2015, posted in Mettur Dam Headquarters Hospital, Salem in Comprehensive Emergency Maternal Obstetrics and Neonatal Care (CEmONC) Centre and presently she is working in Tambaram Government Hospital remains to be CEmONC Centre. Medical Officers working in CEmONC Centre involving Critical Life Saving interventions demanding 24 hours duty and further they are not permitted to get transfer to any other Speciality or other notified areas except to CEmONC Centre vide orders issued by DMS every year during Transfer Counselling. Further, the transfer counselling not being conducted for several years.
  7. I submit that the 5th Petitioner Dr.R.Rajalakshmi was appointed as Assistant Surgeon in Tamil Nadu Medical Service on 25.09.2013 and posted as Casualty Medical Officer (CMO) in Dharmapuri Government Medical College Casualty and she is presently working in Primary Health Centre, Perumbakkam. The service as CMO rendered by the Petitioner for more than 5 years required critical life saving interventions demanding 24 hours duty with high work pressure than the other fields and she was working under great stress with huge case load of different specialities and helping the patients to get appropriate care in quick time especially in the golden hour of the disease, apart from looking after medico-legal cases, providing Final Opinion, Wound Certificate and further maintaining cordial relationship between Medical, Police and Judiciary departments and attending Court duties etc.
  8. I submit that the 6th Petitioner Dr.S.Prasanna was appointed as Assistant Surgeon in Tamil Nadu Medical Service on 27.09.2013 and posted in the Maternity Wing of Government Vellore Medical College and Hospital coming under CEmONC Centre. She worked in the CEmONC centre till 30.05.2017. Presently she is working as Medical Officer in Chennai Corporation from 15.06.2018 onwards. Medical Officers working in CEmONC Centre involving Critical Life Saving interventions demanding 24 hours duty and further they are not permitted to get transfer to any other Speciality or other notified areas except to CEmONC Centre vide orders issued by DMS every year during Transfer Counselling.
  9. I submit that inspite of their dedicated service in Critical Life saving interventions demanding 24 hours duty in Medical Service and left with no time even to take rest, in order to secure admission in Post Graduate Medical Course which remains to be necessary higher qualification to get expertise in the speciality and to gain advancement in service career as per the Service Rules, they have participated in National Eligibility cum Entrance Examination (Post Graduate) 2020 [NEET-PG-2020] conducted on 05.01.2020 and secured high percentage of marks to be eligible for admission to P.G Medical Course. The 1st Petitioner Dr.G.P.Arulraj has secured 486 marks in NEET-PG-2020. The 2nd Petitioner Dr.P.Sridevi has secured 577 marks in NEET-PG-2020. The 3rd Petitioner Dr.P.Kalaivani has secured 658 marks in NEET-PG-2020. The 4th Petitioner Dr. A.Shanmugapriya has secured 651 marks in NEET-PG-2020. The 5th Petitioner Dr. R.Rajalakshmi has secured 567 marks in NEET-PG-2020. The 6th Petitioner Dr.S.Prasanna has secured 377 marks in NEET-PG-2020 to be added with weightage for one year Rural Service (395 marks in total).
  10. I submit that admission to P.G medical courses is governed by Post Graduate Medical Education Regulations, 2000, as amended from time to time. As per Regulation 9(IV), there shall be a single eligibility cum entrance test viz., National Eligibility cum Entrance Test (NEET) for admission to P.G medical courses in each academic year. As per Regulation 9(IV) as amended vide Notification dated 15.02.2012, All India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in NEET and the candidate shall be admitted to P.G course from the said merit list only. The proviso to Regulation 9(IV) inserted vide Notification dated 15.02.2012 is extracted as below:
    “Provided that in determining the merit of candidates who are in service of Government/ public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility cum Entrance Test. The remote and difficult areas shall be as defined by State Government/ Competent Authority from time to time.”
    Therefore, as per proviso to Regulation 9(IV), it is directed to give incentive marks to the Doctors in service of Government/Public authority for each year service in remote/difficult area to be defined by State Government/ competent authority from time to time.
  11. I submit that for the academic year 2017-18, Writ Petitions were filed for implementation of Regulation 9(IV) for admission to P.G medical courses in the State of Tamil Nadu, culminated into orders passed in W.A.No.404 of 2017 with split verdict and therefore the matter was referred to Hon’ble third Judge who passed orders on 03.05.2017. Consequently, the Government issued orders in G.O.Ms.No.1054 Health and Family Welfare Department dated 06.05.2017 to notify remote/difficult areas for awarding weightage marks for securing admission to P.G medical courses. The said Government order was challenged in batch of Writ Petitions wherein orders passed by this Hon’ble Court on 16.06.2017 by striking down the Government Order and by declaring the merit list drawn up as completely flawed with further directions to State Government to reconfigure the merit list. Consequently, Appeal Petitions filed before the Hon’ble Supreme Court of India wherein Interim protection granted and subsequently final orders passed with direction to State Government to complete the process of identification of remote and difficult areas within a stipulated time, in and by order dated 31.01.2018.
  12. I submit that consequently, the Government issued orders in G.O.Ms.No.75 Health and Family Welfare Department dated 09.03.2018 as amended in G.O.Ms.No.96 Health and Family Welfare Department dated 23.03.2018 with classification of remote/difficult areas. The Government orders were challenged, culminated into orders by this Hon’ble Court in W.A.No.1051 of 2018 etc., cases dated 17.05.2018, by partly allowing the Writ Appeal by quashing the classification of A-3 Category alone with direction to the Government to complete the process of selection for P.G medical courses for the academic year 2018-19. While passing orders in the Writ Appeal, the Hon’ble High Court was pleased to observe that the Government should constitute a Committee for categorization of doctors who are employed in remote/difficult/rural areas for the purpose of awarding of incentive marks for admission to P.G medical courses headed by a retired High Court Judge in order to have the benefit of legal acumen from the Judge concerned while making the recommendation for identifying the areas in tune with Regulation 9(IV).
  13. I submit that based on the orders of Hon’ble High Court passed in W.A.No.1051 of 2018 etc., cases dated 17.05.2018, the State Government issued orders in G.O.Ms.No.536 Health and Family Welfare Department dated 15.11.2018 constituting a Committee to identify remote/difficult/rural areas for awarding incentive marks to the in-service candidates for admission to P.G medical courses, under the Chairmanship of Hon’ble Mr.Justice A.Selvam, retired Judge of High Court of Madras and the Committee is consisting with the following members:
  14. Hon’ble Thiru Justice A.Selvam, High Court of Madras, Chennai – Chairman
  15. The Managing Director,
    Tamil Nadu Medical Services Corporation, Chennai – 8 – Member
  16. The Director of Medical Education,
    Chennai – 10 – Member
  17. The Director of Medical and Rural Health Services, Chennai – 6 – Member
  18. The Director of Public Health and Preventive Medicine, Chennai – 6 – Member
  19. One Demography expert from the University of Madras / Anna University / Department of Statistics as decided by the Chairman – Member
  20. Additional Director of Medical Education/ Secretary, Selection Committee, O/o. the Director of Medical Education, Chennai – 10 – Member Secretary Convener
    Therefore, the Committee is comprised of head of department of Directorate of Medical Education, Directorate of Medical and Rural Health Services, Directorate of Public Health and Preventive Medicine as well as the Managing Director of Tamil Nadu Medical Services Corporation, apart from one Demography Expert and the Secretary, Selection Committee, headed by Hon’ble Mr.Justice A.Selvam (Retd). The Committee has gone into all aspects for the purpose of awarding weightage marks for in-service candidates in respect of services rendered by them in remote/difficult/rural areas and submitted their report along with recommendations with suggestions for classification remote/difficult/ rural areas as well as percentage of marks to be awarded for respective area per year.
  21. I submit that the Committee has submitted recommendations in consonance to the provisions of MCI Post Graduate Medical Education Regulations, 2000 and as per the terms of the orders passed by the Hon’ble Supreme Court of India in Narendra Soni case and Amid Bagra case. The Committee has submitted propounded reasons for the purpose of awarding weightage marks for the Medical Officers employed or working in Critical Life Saving interventions demanding 24 hours duties like NICU, CEmONC, Trauma, Casualty, in addition to area based incentives to be provided. Further, the Committee has recommended to re-introduce 50% reservation for in-service candidates in Post Graduate medical seats considering the prevailing working condition of the doctors in the State of Tamil Nadu by taking up the matter to MCI by bringing necessary amendment in the relevant Act. The recommendations of Hon’ble Justice A.Selvam Committee is given as below:
    “i. To take up the issue of awarding marks on the basis of nature of work (Critical Life Saving interventions demanding 24 hours duties like NICU, CEmONC, Trauma, Casualty) in addition to area based incentives with Medical Council of India for bringing in necessary amendments in the relevant Act.
    ii. To reintroduce 50 percent reservation for in-service candidates in Post Graduate Medical Seats, considering the fact that the Government of Tamil Nadu has decided to convert all Post Graduate Diploma into Post Graduate Degree courses in line with the decision of Medical Council of India to do away with Diploma Courses.”
  22. I submit that accordingly, it is required by State Government to consider the issue relating to awarding of weightage marks for Medical Officers working in Critical Life Saving interventions demanding 24 hours duty in consultation with Government of India/ Medical Council of India. Whereas the Government issued orders in G.O.Ms.No.86 Health and Family Welfare Department dated 06.03.2019 wherein it is stated that the Government have examined the report of the Committee headed by Hon’ble Mr.Justice A.Selvam, High Court Judge (retd) along with its recommendations made therein and the Government have decided to accept the recommendations of the Committee. However, paragraph 10 of the order relates to classification of Remote area/Difficult area/Rural area enclosed with Annexure to the Government Order does not refer to any steps taken by the Government relates to implementation of recommendations of Committee with reference to awarding of weightage marks for the Doctors involving Critical Life Saving interventions demanding 24 hours duty. The Government Order is completely silent regarding granting of incentive for Medical Officers working in Critical Care units though the order reads that the Committee recommendations have been accepted.
  23. I submit that in the said circumstances, the Petitioners have submitted representation to the Respondents by referring to the fact that they are working as Medical Officers with high work pressure which requires Critical Life Saving interventions demanding 24 hours duties to manage the critically ill patients with constant vigilance, utmost care, commitment and high degree of clinical acumen etc., and therefore they should be granted with incentive/ weightage marks for the services rendered for admission to P.G Medical Courses. Whereas the representations have not been considered by the Respondent State Government.
  24. I submit that while so, the 4th Respondent Selection Committee proceed to publish the Prospectus dated 12.03.2020 for admission to P.G medical courses for 2020-21 session to conduct selection for admission to P.G medical courses following G.O.Ms.No.86 dated 06.03.2019 for awarding weightage marks for in-service candidates which omitted to include the doctors involving Critical Care interventions inspite of the report of Hon’ble Justice A.Selvam Committee.
  25. I submit that in the said circumstances, the Petitioners filed Writ Petitions in W.P.No.7208 of 2020, 7210 of 2020 and 7507 of 2020 seeking to direct the Respondents to grant incentive/weightage marks to the Petitioners for admission to P.G medical courses in 2020-21 session as recommended by the Committee constituted as per G.O.Ms.No.536 Health and Family Welfare (MCA-1) Department dated 15.11.2018 and for other relief as prayed for.
  26. I submit that the Writ Petitions in W.P.Nos.7208 and 7210 of 2020 came up for hearing on 20.03.2020 wherein the Hon’ble High Court by taking into consideration of the urgency and seriousness involved in the matter issued directions to the Government to take a specific stand with regard to the recommendations made by the Committee in this regard and posted the matter on 27.03.2020. However, in the meantime, in view of outbreak of Covid-19 Pandemic crisis, there was a lockdown and closure of Courts from 24.03.2020 and therefore the Writ Petitions were not listed on 27.03.2020. Consequently, the Hon’ble Court has made special arrangements to hear the urgent matters during the Covid-19 exigency. As per the Notification No.113/2020 dated 17.04.2020, the Writ Petitions in W.P.Nos.7208 and 7210 of 2020 and other documents have been scanned and submitted as required with Memorandum seeking to take up the matter for hearing immediately through electronic media by referring to the fact that the Respondent Selection Committee proceeding to publish the merit list for admission to P.G medical courses on 24.04.2020. However, inspite of the compliance of the Notification, the Writ Petitions are not listed for hearing.
  27. I submit that in this regard, the Writ Petition in W.P.No.7507 of 2020 filed by the 1st Petitioner Dr.G.P.Arulraj came up for admission through video conference on 22.04.2020 due to urgency. On hearing of the matter, this Hon’ble Court passed final orders with directions to the Petitioner to forward the representation through e-mail before 6 PM on 23.04.2020 and the 2nd Respondent is directed to pass orders on or before 18.05.2020 and the merit list to be published on 24.04.2020 shall be kept in abeyance and it shall be re-done subject to the nature of disposal of representation and shall not be published before 08.06.2020.
  28. I submit that subsequently, on mentioning of the matter by the Counsels appearing for the Respondents, the Writ Petition was again taken up for hearing on 24.04.2020 through video conference. The Hon’ble Court has passed orders in modification of earlier order, factually recalling the earlier order by recording the statement of the Counsel appearing for the State Government on the premises that the request of the Petitioner as per recommendation of the Committee is under active consideration by the State Government and orders to be passed immediately. Therefore, the Hon’ble Court passed orders directing the Respondents to pass orders on the claim of the Petitioner with operative portion as follows:
    “11.If the disposal of the representation is in favour of the writ petitioner, that would culminate in a happy ending for all concerned. However, if the disposal of aforementioned representation of writ petitioner is not in his favour, as the online counseling would go on for eight days from the date of publishing of merit list (in the light of the submission made by learned Standing counsel for 4th respondent) coupled with his stated position that merit list has not been published today, writ petitioner will have a window to seek legal redress. Therefore, this Court deems it appropriate to permit the 4th respondent to publish the merit list and commence the online counseling.
    12.Though obvious, it is made clear that this Court has refrained itself from expressing any view or opinion regarding the merits of the rival submissions as everything would depend on the contents of disposal of the writ petitioner’s representation. Likewise, though obvious, it is also made clear that this order will not come in the way of writ petitioner assailing (in a manner known to law) the communication / order disposing of writ petitioner’s representation if it is not in his favour.”
  29. I submit that consequently, the 2nd Respondent has forwarded the communication of State Government addressed to Central Government dated 14.03.2019 as well as the Government of India letter dated 29.03.2019 and the subsequent communication sent by MCI dated 14.09.2019 along with the impugned letter dated 24.04.2020 issued by the 2nd Respondent through e-mail id of the Petitioner’s Counsel on 25.04.2020 at 12.45 PM.
  30. I submit that on perusal of the proceedings/communications, it is found that based on the report of the Committee headed by Hon’ble Mr.Justice A.Selvam dated 04.03.2019, the 2nd Respondent forwarded a D.O Letter to Government of India addressed to 1st Respondent on 14.03.2019 for awarding weightage marks for Medical Officers working in CEmONC, Trauma, Casualty etc., involving Critical Life Saving interventions demanding 24 hours duties for admission to P.G medical courses by referring to the pressurized work as well as increased workload of Medical Officers working in the said areas with a request to Government of India to urgently resolve the issue for the larger interest of the students seeking P.G admission in Tamil Nadu.
  31. I submit that consequently, the Government of India issued a communication addressed to MCI dated 29.03.2019 with a request to the MCI to examine the matter and to forward the comments to the Ministry for necessary action. Whereas it is found that on 14.09.2019, the Board of Governors in supersession of Medical Council of India forwarded a communication addressed to the 1st Respondent Government of India by stating that reservation on the ground of service on the basis of nature of work in a hospital cannot be considered on the premises that the reservation for in-service candidates is based on the logic of providing medical care in unserved remote and difficult areas and such incentive has been upheld by Hon’ble Supreme Court in Dinesh Singh Chauhan‘s case.
  32. I submit that while so, the 1st Respondent vide communication dated 25.10.2019 addressed to 2nd Respondent State Government by simply enclosing the comments issued by Board of Governors dated 14.09.2019 in response to letter dated 14.03.2019 without taking any decision in this regard.
  33. I submit that in the said circumstances, as per the orders passed W.P.No.7507 of 2020 dated 24.04.2020, the 2nd Respondent proceed to pass the impugned order by merely extracting the comments of Board of Governors and stated that the request for awarding weightage marks for the service involving Critical Care interventions for admission to P.G medical courses for the year 2020-21 session is not feasible for compliance.
  34. I submit that in the said circumstances, aggrieved against the order of 2nd Respondent dated 24.04.2020 communicated on 25.04.2020 through e-mail, the Petitioners are having no other alternative efficacious and speedy remedy except to approach this Hon’ble Court under Article 226 of the Constitution of India, challenging the same, for the following among other
    G R O U N D S
    a) The impugned order in the form of letter dated 24.04.2020 served through e-mail on 25.04.2020 issued by the 2nd Respondent rejecting the claim of the Petitioner for awarding weightage marks for the services involving Critical Care interventions demanding 24 hours duty is ex-facie illegal, arbitrary and against the law and further shirking the responsibility mandated in the MCI Regulations in as much as the impugned order is passed by simply referring to the comments forwarded by MCI through Government of India without taking any decision in accordance with law, in the absence of any decision being taken by the Government of India.
    b) On the face of it, the Board of Governors has forwarded its comments on 14.09.2019 by stating that the incentive marks for the in-service candidates for the services rendered in remote and difficult areas has been upheld by Hon’ble Supreme Court in Dinesh Singh Chauhan’s case. Whereas the question raised before Hon’ble Supreme Court of India in Dinesh Singh Chauhan case as to whether the order of High Court of Uttarpradesh in quashing the 30% quota for in-service candidates for admission to P.G medical courses with consequent direction to re-draw the merit list by awarding weightage mark as per Regulation 9(IV) of P.G Medical Regulations, 2000 is correct. Accordingly, the Hon’ble Supreme Court of India has held that the Central enactment and the Regulations framed thereunder do not provide for reservation for in-service candidates in Post Grade ‘Degree’ courses. Accordingly, it is held that providing 30% reservation to in-service candidates in P.G degree courses is not permissible. Further, it is held that weightage or incentive marks specified in Regulation 9 are thus linked to the marks obtained by the in-service candidate in NEET and reckon the commensurate experience and services rendered by them in notified/remote/difficult areas of the State.
    c) The Hon’ble Supreme Court of India in paragraph 27 held as follows:
    “27. Thus understood, the Central enactment and the regulations framed thereunder do not provide for reservation for in-service candidates in postgraduate “degree” courses. As there is no express provision prohibiting reservation to in-service candidates in respect of admission to postgraduate “degree” courses, it was contended that providing for such reservation by the State Government is not impermissible in law. Further, there are precedents of this Court to suggest that such arrangement is permissible as a separate channel of admission for in-service candidates. This argument does not commend to us. In the first place, the decisions pressed into service have considered the provisions regarding admission process governed by the regulations in force at the relevant time. The admission process in the present case is governed by the regulations which have come into force from the academic year 2013-2014. This Regulation is a self-contained code. There is nothing in this Regulation to even remotely indicate that a separate channel for admission to in-service candidates must be provided, at least in respect of postgraduate “degree” courses. In contradistinction, however, 50% seats are earmarked for the postgraduate “diploma” courses for in-service candidates, as is discernible from clause (VII). If the regulation intended a similar separate channel for in-service candidates even in respect of postgraduate “degree” courses, that position would have been made clear in Regulation 9 itself. In absence thereof, it must be presumed that a separate channel for in-service candidates is not permissible for admission to postgraduate “degree” courses. Thus, the State Government, in law, had no authority to issue a Government Order such as dated 28-2-2014, to provide to the contrary. Hence, the High Court was fully justified in setting aside the said government order being contrary to the mandate of Regulation 9 of the 2000 Regulations, as applicable from the academic year 2013-2014.”
    Therefore, the Hon’ble Supreme Court has not gone into the aspect of the definition for classification of remote/difficult areas as per the proviso to Regulation 9(IV) except to state that it is for the State Government to take a decision in this regard as per the Regulation. The Hon’ble Supreme Court has only upheld the validity of awarding weightage marks for the Medical Officers rendering services in remote/difficult area in paragraph 44 by stating as follows:
    “44. ……The provision was first inserted in 2012. To determine the academic merit of candidates, merely securing high marks in NEET is not enough. The academic merit of the candidate must also reckon the services rendered for the common or public good. Having served in rural and difficult areas of the State for one year or above, the incumbent having sacrificed his career by rendering services for providing healthcare facilities in rural areas, deserve incentive marks to be reckoned for determining merit. Notably, the State Government is posited with the discretion to notify areas in the given State to be remote, tribal or difficult areas. That declaration is made on the basis of decision taken at the highest level; and is applicable for all the beneficial schemes of the State for such areas and not limited to the matter of admissions to postgraduate medical courses.”
    Accordingly, the matter has to be left to the Expert Committee constituted by the State Government for the purpose of arriving the decision to define remote/difficult/rural areas for the purpose of awarding weightage marks for the doctors for admission to P.G medical course. Therefore, the reference to the orders passed by Hon’ble Supreme Court in Dinesh Singh Chauhan case for the points raised by the State Government is highly misconceived and misleading and not justified.
    d) The Hon’ble High Court passed orders in W.A.No.1051 of 2018 etc., cases dated 17.05.2018 for constitution of an Expert Committee headed by a retired Judge of High Court for the purpose of identification and categorization of remote/difficult/rural areas for awarding weightage marks as per Regulation 9(IV) of MCI Regulations.
    e) The Government of Tamil Nadu constituted a Committee in G.O.Ms.No.536 dated 15.11.2018 with experts in the field including the Head of Departments of various Directorates headed by a retired High Court Judge for the purpose. The Committee after deliberating all the issues forwarded its report with recommendations to award marks for the Medical Officers working in CEmONC, Trauma, Casualty involving Critical Life Saving interventions demanding 24 hours duty with propounded reasons. Whereas the impugned order is passed without reference to the recommendations of the Committee by rejecting the request of the Petitioners merely by referring to the comments made by Board of Governors of MCI which would of no avail as already elaborated.
    f) As per Regulation 9(IV) of MCI P.G Medical Education Regulations, 2000, the remote/difficult areas or rural areas shall be as notified by State Government/ competent authority from time to time. The power is vested with State Government to notify the remote/difficult/rural areas for awarding weightage marks as per the Regulation. The Regulation 9(IV) does not provide for any definition regarding the categorization of remote/difficult/rural areas except it mandates the concerned State Government to notify the same. In the said circumstances, it is required by the State Government to take an independent decision on the issue after receipt of comments forwarded by Board of Governors particularly when no decision has been arrived by Government of India; and further there are recommendations with reasons by Hon’ble Justice A.Selvam Committee constituted as per the orders of this Hon’ble Court.
    g) The Government of Tamil Nadu has already taken a decision which is reflected in paragraph 7 and 8 of the D.O letter No.8761/MCA.1/2018-2 dated 14.03.2019 addressed to Government of India as follows:
    “7.In this connection, I am to state that the Medical Officers working in the areas of NICU, CEmONC, Trauma, Casualty, the work pressure is more on the Medical Officers than the other fields. However, they acquire more practical knowledge in the medical field apart from the theoretical knowledge with the continuous exposure to the emergency situations. Their field is so essential and unique of its kind and with these Doctors the positions of IMR and MMR in Tamil Nadu is comparatively better when compare with other States in India. To motivate them to work in such field, incentive marks may be given to them, so that they would get PG seats and it will pave way for continuous availability of the work force for such unique fields without any hindrance. In view of the above, the Government have decided to accept the recommendation of the Committee made as specified in para 5 above.
    8.I am, therefore, to request you to take appropriate action to bring necessary amendment to the Post Graduate Medical Regulation to enable the State Government to award incentive marks in the current year session itself to in-service Post Graduate Students on the basis of their nature of work (Critical Life Saving interventions demanding 24 hours duties like NICU, CEmONC, Trauma, Casualty) in addition to remote/ difficult/ rural areas, so as to enable the Government to utilize the services of the in-service candidate to deliver the good health care to the needy public.”
    Whereas the decision of the State Government made in this regard cannot be stultified based on the comments forwarded by Board of Governors dated 14.09.2019, when the Government of India has not taken any decision in the matter and in the light of statutory power conferred on the State as per proviso to Regulation 9(IV) of MCI Regulations.
    h) The fact remains that as per the policy adopted by the State Government in respect of transfer counselling for every year, the Doctors working in CEmONC/NICU Centre should only opt for another CEmONC/NICU centres involving Critical Care interventions demanding 24 hours duty and not permitted to get transfer to other specialities or even to the notified remote or rural areas. Therefore, when the Medical Officers working in CEmONC/NICU centres are prevented from getting transfer to any other specialities much less to the rural/remote/difficult areas even during transfer counselling, they cannot be denied the incentive/ weightage marks for the services rendered by them. The identification and criteria recommended by the Expert Committee headed by the Hon’ble High Court Judge was made in consideration of various factors which cannot be discountenanced in the manner as stated in the impugned order. Otherwise, it will be resulting in serious prejudice to the Medical Officers working in CEmONC/NICU centres when they are not permitted to get transfer to other speciality which is evident from the proceedings of DMS issued every year for transfer counselling, enclosed in the typed set of papers.
    i) The orders of Hon’ble Supreme Court has endorsed the general criteria recommended by National Health System Resource Centre which also recommends that the criteria for difficulty should be measurable enough to withstand legal and political contestation, but there would be exceptions that need to be made and these could be made by addition of further qualifying rules and flexibilities that would be defined in writing wherever needed. Accordingly, the definition for difficult area to be arrived by the Government of Tamil Nadu in exercise of power conferred under proviso to Regulation 9(IV).
    j) The word ‘difficult’ in Regulation 9(IV) cannot be equated to remoteness of the area, that are already governed by the words ‘remote’ and ‘rural’ in the proviso and the word ‘difficult’ stand alone to be defined in the manner known to law. Accordingly, the decision already taken by the Government as per the communication dated 14.03.2019 with regard to awarding weightage marks for Medical Officers serving in Critical Care interventions demanding 24 hours duty has to be upheld.
    k) It is needless to state that the comments forwarded by Board of Governors is not binding on the State Government in the matter of exercising statutory power as per the proviso to Regulation 9(IV) of MCI Regulations with regard to the definition of difficult area in the matter of awarding weightage marks for the doctors in admission to P.G medical course.
  35. This is the first Writ Petition filed by the Petitioners and no other petition filed or pending before any other court.
    Hence, it is humbly prayed that this Hon’ble Court may be pleased to permit the petitioners to join together to file a single writ petition and to pass such other order and thus render justice
  36. I submit that I am not served with the original impugned order issued by the 2nd Respondent in No.11787/MCA1/2020-1 dated 24.04.2020. Hence, I am filing the present Writ Petition by enclosing the photo copy of the same. Therefore, if the production of original impugned order issued by the 2nd Respondent dated 24.04.2020 is dispensed with, no one would be prejudiced.
    Hence, it is humbly prayed that this Hon’ble Court may be pleased to DISPENSE WITH the production of original impugned order issued by the 2nd Respondent in No.11787/MCA1/2020-1 dated 24.04.2020, for the present Writ Petition and thus render justice.
  37. I submit that the Respondent issued Government Orders for amendment of Prospectus to conduct online counselling for admission to P.G medical courses vide G.O(D).No.443 Health and Family Welfare Department dated 22.04.2020. Further, the 3rd Respondent issued Notification for conducting online counselling from 30.04.2020. Therefore, there is an urgency to move the Writ Petition before this Hon’ble Court through e-filing.
  38. I submit that the Respondent Selection Committee after vacating the Interim Order earlier passed on 22.04.2020 proceeded to publish the merit list in the night hours of 24.04.2020 without reference to the fact that the High Court given directions to the 2nd Respondent to pass orders in a day with liberty to the Petitioner to challenge the same in the event of the order is not in his favour. The Selection Committee has also proceeded to announce the date for conducting counselling from 30th May 2020. The time line prescribed to conduct the counselling cannot be the reason to perpetuate illegality to deprive the benefit of incentive marks to the deserving doctors serving in critical care interventions demanding 24 hours duty based on the recommendations of Committee constituted by High Court order. Therefore, in the interest of justice, it is just and necessary to restrain the Respondents from proceeding with the process of selection for admission to P.G Medical course for 2020-2021 session without awarding incentive/ weightage marks for the Petitioners for the services rendered by them involving Critical Life Saving interventions demanding 24 hours duty, as recommended by the Committee constituted as per G.O.Ms.No.536 Health and Family Welfare (MCA-1) Department dated 15.11.2018, pending disposal of Writ Petition.
    Hence, it is humbly prayed that this Hon’ble Court may be pleased to grant an order of INTERIM INJUNCTION restraining the Respondents from proceeding with the process of selection for admission to P.G Medical course for 2020-2021 session without awarding incentive/ weightage marks for the Petitioners for the services rendered by them involving Critical Life Saving interventions demanding 24 hours duty, as recommended by the Committee constituted as per G.O.Ms.No.536 Health and Family Welfare (MCA-1) Department dated 15.11.2018, pending disposal of Writ Petition and thus render justice.
  39. I submit that in view of the facts and circumstances stated above, in the interest of justice, it is just and necessary to direct the Respondents to allow the Petitioners to participate in the counselling for admission to P.G medical course for the year 2020-2021 session by awarding 10% weightage marks per year service, pending disposal of Writ Petition.
    Hence, it is humbly prayed that this Hon’ble Court may be pleased to grant an order of INTERIM DIRECTION directing the Respondents to allow the Petitioners to participate in the counselling for admission to P.G medical course for the year 2020-2021 session by awarding 10% weightage marks per year service, pending disposal of Writ Petition and thus render justice.
    Hence, it is humbly prayed that this Hon’ble Court may be pleased to issue a writ, order, or direction more particularly a writ in the nature of WRIT OF CERTIORARIFIED MANDAMUS to call for the records relating to the impugned proceedings issued by the 2nd Respondent in No.11787/MCA1/2020-1 dated 24.04.2020 and to QUASH the same and consequently directing the Respondents to pass orders for granting incentive/weightage marks to the Petitioner for the service rendered by them involving Critical Care Life Saving interventions demanding 24 hours duty for admission to Post Graduate Medical Courses for 2020-21 Session, as recommended by the Committee constituted as per G.O.Ms.No.536 Health and Family Welfare (MCA-1) Department dated 15.11.2018 and to pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai, {} Before Me
on this day of April 2020 {}
and signed his name in my {}
presence. {} Advocate::: Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS
[Special Original Jurisdiction]

W.P. No. of 2020

  1. Dr. G.P.Arulraj & others Petitioners
    Versus
  2. The Government of India,
    Rep. by its Secretary to Government,
    Ministry of Health and Family Welfare,
    Room No.348, ‘A’ Wing, Nirman Bhavan,
    New Delhi – 110 011 & others Respondents
    SUBMISSIONS / SYNOPSIS
     The Petitioners are working as Medical Officers, written NEET-PG-2020 and secured high marks, entitled for incentive/weightage marks for the services rendered/rendering in Tamil Nadu Medical Service involving Critical Life Saving interventions demanding 24 hours duty, for admission to P.G courses, as per Hon’ble Justice A.Selvam Committee report, constituted by Court order.
     The admission to P.G medical courses is governed by Post Graduate Medical Education Regulation 2000, as amended, with reference to Regulation 9 relates to procedure for selection to candidate for PG courses.
     As per Regulation 9(IV), it is directed to give incentive marks to the Doctors in service of Government/Public authority for each year service in remote/difficult area. It is further ordered that the remote/difficult area shall be defined by State Government /competent authority from time to time.
     In the academic year 2017-18, Writ Petitions were filed for implementation of Regulation 9(IV) for admission to PG Medical Courses by the State of Tamil Nadu and it was culminated into orders passed in W.A.No.484 of 2017 with split verdict and therefore the matter was referred to Hon’ble Third Judge who passed orders on 03.05.2017.
     Consequently, the Government issued orders in G.O.Ms.No.1054 Health and Family Welfare Department dated 06.05.2017 to notify Remote/Difficult areas by including all the areas already notified in the previous year and the same was struck down by the orders of this Hon’ble Court by stating that the State Government is required to formulate the criteria in respect of Remote/Difficult area stands expounded by Supreme Court in its Judgment rendered on 25.05.2017 in State of Haryana and others Vs Dr.Narendra Soni and others and the merit list as drawn up is declared as completely flawed with further direction to the State Government to reconfigure the merit list, in and by order dated 16.06.2017.
     In the Appeal Petitions filed in SLP No.16541 to 16542 of 2017, the Hon’ble Supreme Court granted an order of Interim Stay on 06.07.2017. Subsequently, the Hon’ble Supreme Court passed final orders on 31.01.2018 direct the State to complete the process by 10.3.2018 and notify remote and difficult areas as provided in the order. However, admission in the year academic Session 2017-2018 are not to be disturbed.
     Consequently, Government issued orders in G.O.Ms.No.75 Health and Family Welfare Department dated 09.03.2018, as amended in G.O.Ms.No.96 dated 23.03.2018 with classification of Remote/Difficult area which are subject matters of Writ Petitions, wherein this Hon’ble Court passed orders by quashing the Government Orders with further direction that the State should re-do the exercise in identifying the Remote/Difficult areas in proper prospective in consultation with Expert Committee.
     The State Government preferred Writ Appeal in W.A.No.1051 of 2018 etc., cases wherein orders passed on 17.05.2018, partly allowing the Writ Appeal by quashing the classification of A-3 category alone with directions to the Government to complete the process of selection for PG Medical courses as indicated in the schedule for the academic year 2018-19.
     Further, this Hon’ble Court directed the Government should constitute a Committee for categorization of Doctors who are employed in Remote/Difficult/ Rural areas for the purpose of awarding of incentive marks for admission to PG Medical Courses headed by a retired High Court Judge in order to have the benefit of legal acumen from the Judge concerned while making the recommendation for identifying the areas in tune with Regulation 9(IV).
     Accordingly, the State Government has constituted a Committee under the Chairmanship of Hon’ble Mr.Justice A.Selvam in G.O.Ms.No.536 dated 15.11.2018 and the Committee has gone into all aspects for the purpose of awarding weightage marks for in-service candidates in respect of services rendered by them in Remote/Difficult/Rural areas and submitted their report for classification of Difficult area/Remote area/ Rural areas as well as percentage of marks to be awarded for the respective areas per year.
     The Committee has submitted its propounded reasons for the purpose of granting weightage marks for the Medical Officers employed or working in Critical Life Saving interventions demanding 24 hours duties like NICU, CEmONC, Trauma, Casualty) in addition to area based incentives with MCI for bringing in necessary amendments in the relevant Act.
     The G.O.Ms.No.86 Health and Family Welfare Department dated 06.03.2019 issued consequent to implementation of the recommendations of the Committee states that the recommendations of Committee be accepted and the incentive marks to the in-service doctors be awarded based on the working place as classified.
     Further, the Government Order does not refer to any steps taken by the State Government relates to implementation of recommendations of Committee with reference to awarding of weightage marks for the doctors involving Critical Life Saving interventions demanding 24 hours duties like NICU, CEmONC, Trauma, Casualty).
     The Petitioners submitted several representations from the year 2019 seeking to consider the claim of Casualty Medical Officers as well as other Medical Officers working in Critical Life Saving interventions for the purpose of awarding weightage marks under Difficult Area category for securing admission into P.G medical course, but the same have not been considered till date.
     While so, instead of passing orders for considering the claim of CMO and other Medical Officers working in the Critical care units, the State Government and Selection Committee proceeded to issue the Prospectus for admission to P.G medical courses for 2020-2021 selection in which in Clause-16, it is directed that the weightage marks will be awarded for Remote/Difficult/Rural areas as per G.O.Ms.No.86 dated 06.03.2019 and the consequential Government Orders.
     Therefore, the Petitioners 1 to 3 were constrained to file Writ Petitions before this Hon’ble Court in W.P.Nos.7208, 7210 and 7507 of 2020. In respect of W.P.Nos.7208 and 7210 of 2020, this Hon’ble Court, by taking into consideration of the urgency and seriousness involved in the matter issued directions to the Government to take a specific stand with regard to the recommendations made by the Committee in this regard and posted the matter on 27.03.2020. Whereas the same have not been listed for further hearing due to Covid-19 Pandemic crisis followed by lockdown.
     However, when the Writ Petition in W.P.No.7507 of 2020 filed by the 1st Petitioner Dr.G.P.Arulraj came up for admission through video conference on 22.04.2020 due to urgency, this Hon’ble Court passed final orders with directions to the Petitioner to forward the representation through e-mail before 6 PM on 23.04.2020 and the 2nd Respondent is directed to pass orders on or before 18.05.2020 and the merit list to be published on 24.04.2020 shall be kept in abeyance and it shall be re-done subject to the nature of disposal of representation and shall not be published before 08.06.2020.
     Subsequently, on mentioning of the matter by the Counsels appearing for the Respondents, the Writ Petition was again taken up for hearing on 24.04.2020 through video conference.
     This Hon’ble Court passed orders in modification of earlier order, factually recalling the earlier order by recording the statement of the Counsel appearing for the State Government on the premises that the request of the Petitioner as per recommendation of the Committee is under active consideration by the State Government and orders to be passed immediately.
     Consequently, 2nd Respondent issued orders dated 24.04.2020 served on 25.04.2020 enclosed with communications between State Government, Central Government and MCI. Though State Government insisted to grant incentive for doctors and forwarded report to Central Government on 14.03.2019 as per Judge Committee report, the BoG/MCI passed comments as not feasible by referring Dinesh Singh Chauhan case Judgement.
     Aggrieved over the same, the Petitioners filing the present Writ Petition challenging the impugned order issued by the 2nd Respondent dated 24.04.2020 for the legal grounds as stated in the affidavit filed in support of Writ Petition and for other relief as prayed for.
    DATES & EVENTS
    DATES EVENTS
    15.11.2018 G.O.Ms.No.536 Health and Family Welfare (MCA-1) Department
    06.03.2019 G.O.Ms.No.86 Health and Family Welfare (MCA-1) Department enclosed with Annexure-I, II & III.
    12.03.2020 Prospectus issued by the 3rd Respondent
    20.03.2020 Interim Order granted in W.P.Nos.7208 and 7210 of 2020 (similar cases)
    22.04.2020 Order passed in W.P.No.7507 of 2020
    24.04.2020 Modified order passed in W.P.No.7507 of 2020
    24.04.2020 Impugned letter issued by the 2nd Respondent (served through e-mail on 25.04.2020 at 12.45 PM)
    —— Proceedings of D.O.Letter forwarded by the State of Tamil Nadu addressed to the Government of India dated 14.03.2019 (communicated to the Petitioner on 25.04.2020)
    —— Communication forwarded by the Government of India to MCI dated 29.03.2019 (communicated to the Petitioner on 25.04.2020)
    —— Comments forwarded by BoG in supersession of MCI addressed to Government of India dated 14.09.2019 (communicated to the Petitioner on 25.04.2020)
    —— Communication forwarded by the Government of India addressed to State Government dated 25.10.2019 (communicated to the Petitioner on 25.04.2020)
    25.04.2020 Notification issued by Selection Committee for conducting online counselling from 30.04.2020
    —— Order passed by Hon’ble Supreme Court in Dinesh Singh Chauhan case reported in 2016 (9) SCC 749
    Dated at Chennai, this the 27th day of April, 2020 COUNSEL FOR PETITIONERS

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