Madras High Court
Dr.T.Hindhumathi vs The State Of Tamil Nadu Rep.By on 2 August, 2022
Author: Abdul Quddhose
Bench: Abdul Quddhose
WP.No.14695 of 2022
In the High Court of Judicature at Madras
Dated : 02.8.2022
Coram
The Hon'ble Mr.Justice ABDUL QUDDHOSE
W.P.No.14695 of 2022 &
WMP.Nos.13891 and 15331 of 2022
1.Dr.T.Hindhumathi
2.Dr.M.Srinivetha
3.Dr.M.Sangavi
4.Dr.S.Sai Harini
5.Dr.S.Sivaranjani
6.Dr.S.Sivayogitha ...Petitioners
Vs
1.The State of Tamil Nadu rep.by
the Secretary to Government,
Public Health & Family Welfare Department
Secretariat, Fort St.George, Chennai-9
2.The Director of Public Health &
Preventive Medicine, No.359,
Anna Salai, DMS Complex, Chennai-6.
3.The Director of Medical Education,
Directorate of Medical Education
Kilpauk, Chennai-10.
4.The Secretary, Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10.
5.The Mission Director, National Health
Mission, No.359, Anna Salai,
DMS Complex, Teynampet, Chennai-6. ...Respondents
1/10
https://www.mhc.tn.gov.in/judis
WP.No.14695 of 2022
PETITION under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorarified Mandamus to call for the
records pertaining to the proceedings of the 2nd respondent in O.Mu.
No.2633254/Aasuni/U2/2022 dated 17.6.2022, quash the same as
illegal, incompetent and ultravires and consequently direct the 1st
respondent to award incentive marks to the petitioners for admission
to Post Graduate Medical Courses by considering the petitioners' posts
at Mobile Health Clinics as Medical Officers in respective districts by
considering the petitioners' representation dated 16.3.2022 (prayer
amended vide order dated 24.6.2022 in WMP.No.15329 of 2022 by
AQJ).
For Petitioners : Mr.R.Jayaprakash
For Respondents 1 to 3 & 5 : Mr.K.H.Ravikumar, GA
For Respondent-4 : Ms.Sneha
ORDER
The writ petition has been filed by doctors, who are working as Medical Officers in Government service, challenging the order dated 17.6.2022 passed by the second respondent rejecting their request for the grant of incentive marks for post graduate admission as per G.O. Ms.No.86 Health and Family Welfare Department dated 06.3.2019. 2/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022
2. It is stated in the affidavit filed in support of the writ petition that based on the observations made by a Division Bench of this Court in the common judgment dated 17.5.2018 in W.A.No.1051 of 2018 etc. cases, a Committee was constituted to identify the remote/ difficult/hill areas for awarding incentive marks to the in-service Medical Officers for admission to the post graduate degree/diploma courses and it was headed by a Retired Judge of this Court, who has submitted his report. As per the said report, areas in the State of Tamil Nadu have been categorized as remote/difficult/hill areas. Further, as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019, doctors, who are working in Government medical institutions in difficult areas in hills, difficult areas in plains, remote areas, rural areas and urban areas are entitled to get incentive marks. Even according to the petitioners, only pursuant to G.O.Ms.No.65 Labour and Employment Department dated 30.5.2019, the post of Labour Medical Officers came in place.
3. It is further stated in the affidavit that the petitioners are also working in difficult terrains as they move from place to place, they are entitled to get incentive marks as per G.O.Ms.No.86 Health and Family 3/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 Welfare Department dated 06.3.2019 and that instead of the Committee rejecting their request, the second respondent, without authority, passed the impugned order rejecting their request for the grant of incentive marks.
4. The petitioners have challenged the impugned order mainly on the following grounds :
(i) The act of the respondents in not including the petitioners as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019 is arbitrary and illegal;
(ii) The respondents ought to have seen that the petitioners are also serving in the hill areas, remote areas and rural areas and therefore, they are also entitled to get incentive marks given by the State for the in-service candidates;
(iii) The respondents ought to have seen that though G.O.Ms.No. 86 Health and Family Welfare Department dated 06.3.2019 has been published prior to the creation of post in the Labour Medical Health Centres, the respondents ought to have added it by way of addendum or amendment;
(iv) The act of the respondents in treating the equals unequally 4/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 is absolutely against the rule of law and the concept of equality guaranteed under The Constitution of India;
(v) The act of the respondents would deliberately offend Articles 14, 16 and 21 of The Constitution of India;
(vi) The second respondent failed to consider that the petitioners are traveling more than 150 kilometers per day and are serving in all types of landscapes mentioned in G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019 awarding incentive marks. Therefore, they ought to have been awarded incentive marks; and
(vii) The second respondent is incompetent to take a decision and it is only the first respondent, who is competent to take a decision on the issue raised by the petitioners.
5. A counter has been filed by the respondents denying the contentions of the petitioners. As per the counter, the petitioners do not fall under any of the categories of doctors, who are working in hill areas or remote areas or rural areas and therefore, they are not entitled to get the benefit of G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019. It is further stated by the respondents that though the petitioners may have to travel to several areas, it 5/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 cannot be said that on permanent basis, they would be serving in the hill areas, remote areas and rural areas. Further, they are also not permanently posted in hill areas, remote areas and rural areas and therefore, the second respondent has rightly rejected their request under the impugned order.
6. It is also stated by the respondents in the counter that the Committee constituted pursuant to the judgment dated 17.5.2018 in W.A.No.1051 of 2018 etc. cases, has categorized the areas in the State of Tamil Nadu as hill areas, remote areas and rural areas. Since the petitioners do not fall under any of the said categories, they are not entitled to get incentive marks as per G.O.Ms.No.86 Health and Family Welfare Department 06.3.2019.
7. Heard the learned counsel for the petitioners and the respective learned counsel appearing for the respondents.
8. The learned counsel for the petitioners would reiterate the contents of the affidavit filed in support of the writ petition and submit that when G.O.Ms.No.86 Health and Family Welfare Department dated 6/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 06.3.2019 was issued, the post of Medical Officers was not in place and it came into place only after two months from the date of G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019. Therefore, the situation was not foreseen by the respondents in G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019. Since the petitioners have to work in difficult areas including hill areas, remote areas and rural areas as Medical Officers, they are also entitled to get incentive marks as per G.O.Ms. No.86 Health and Family Welfare Department dated 06.3.2019.
9. However, this is disputed by the learned Standing Counsel appearing for the fourth respondent as well as the learned Government Advocate appearing for respondents 1 to 3 and 5 and they would categorically reiterate that the petitioners are not entitled to get any incentive marks in view of the fact that they cannot be equated with doctors, who are working in hill areas, remote areas and rural areas. According to them, only the doctors, who are working in those areas and falling within the areas specified in the High Power Committee's report, are entitled to get incentive marks.
7/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022
10. After giving due consideration to the contents of the affidavit filed in support of the writ petition as well as the counter filed by the respondents and after hearing the submissions made by the learned counsel for the respective parties, this Court is of the considered view that no prejudice will be caused to the respondents, if the petitioners are allowed to give a representation to the first respondent, who is the Competent Authority for inclusion of their names as doctors entitled to get incentive marks as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019 and if, on receipt of such a representation, the first respondent is directed to pass final orders on merits and in accordance with law within a time frame to be fixed by this Court. However, it shall be made clear that the impugned order remains undisturbed unless and until the petitioners succeed in their representation to be given by them seeking for inclusion of their names as doctors entitled to get incentive marks as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019.
11. For the foregoing reasons, the writ petition is disposed of by issuing a direction to the petitioners to give a representation to the first respondent requesting to include their names in the list of doctors 8/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 entitled to get incentive marks as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019, within a period of one week from the date of receipt of a copy of this order. On receipt of such a representation, the first respondent shall pass final orders on merits and in accordance with law within four months thereafter. However, it is made clear that the impugned order remains undisturbed unless and until the petitioners succeed in their representation to be given by them seeking for inclusion of their names as doctors entitled to get incentive marks as per G.O.Ms.No.86 Health and Family Welfare Department dated 06.3.2019. No costs. Consequently, the connected WMPs are closed.
02.8.2022 Speaking Order Internet : Yes RS 9/10 https://www.mhc.tn.gov.in/judis WP.No.14695 of 2022 ABDUL QUDDHOSE,J RS To
1.The Secretary to Government of Tamil Nadu, Public Health & Family Welfare Department, Secretariat, Fort St.George, Chennai-9
2.The Director of Public Health & Preventive Medicine, No.359, Anna Salai, DMS Complex, Chennai-6.
3.The Director of Medical Education, Directorate of Medical Education Kilpauk, Chennai-10.
4.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-10.
5.The Mission Director, National Health Mission, No.359, Anna Salai, DMS Complex, Teynampet, Chennai-6 WP.No.14695 of 2022 & WMP.Nos.13891 & 15331 of 2022 02.8.2022 10/10 https://www.mhc.tn.gov.in/judis