Madras High Court
Dr.(Sqn Ldr) S.B.Rajesh Ram vs State Of Tamil Nadu on 13 March, 2024
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
Writ Petition No.15656 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2024
CORAM:
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.15656 of 2012
and M.P.Nos.1 & 2 of 2012
Dr.(Sqn Ldr) S.B.Rajesh Ram ...Petitioner
Vs.
1.State of Tamil Nadu
Rep.by its Principal Secretary
Health and Family Welfare Department
Fort St.George, Chennai – 600 009.
2.The Director of Medical Rural Health Services
Teynampet, Chennai – 600 006.
3.The Joint Director
Medical and Rural Health Services
Thanjavur District
Kumbakonam.
4.The Hospital Superintendent
Govt. District Head Quarters Hospital
Thanjavur District, Kumbakonam.
...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
Page No.1 of 30
https://www.mhc.tn.gov.in/judis
Writ Petition No.15656 of 2012
praying to issue a Writ of Certiorari, call for the records pertaining to the
office Letter Ref.No.82153/E3/1/10 dated 22.12.2010 issued by the 2 nd
respondent and quash the same.
For Petitioner : Mr.C.S.K.Sathish
For Respondents : Mr.M.Rajendiran
Additional Government Pleader
for RR1 to 4
ORDER
Challenging the impugned office memorandum No.82153/E3/1/10 dated 22.12.2010 issued by the 2nd respondent, the petitioner has filed the present Writ Petition.
2. It is the case of the petitioner, that he is a government Doctor, employed as Assistant Surgeon at Government District Head Quarters Hospital, Kumbakonam, Thanjavur District. The employment of the petitioner comes under the Tamil Nadu Medical Service and under the administrative control of the 3rd and 4th respondents. While the 2nd respondent is the Head of the Department, the 1st respondent is overall In-charge of the health administration in the State. Doctors under the employment of the 1st Page No.2 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 respondent prior to the year 2009 had made a grievance, on account of lack of adequate promotional opportunities and stagnation at various levels in the system. Therefore, they insisted for a dynamic assured career progression.
3. The learned counsel for the petitioner would submit that the 1 st respondent while considering the demand of the petitioner and other similarly placed persons, constituted a committee to look into the promotional opportunities of Government Doctors at various levels. As a result, the 1 st respondent passed the G.O.Ms.No.354, Health & Family Welfare (B2) Department dated 23.10.2009 and created a new rank known as Chief Civil Surgeon (CCS), carrying the salary in the pay band – IV of Rs.37,400/- - 67,000/- with Grade Pay of Rs.8,700/-. The Doctors who were in the cadre of Civil Surgeons (CS) and Senior Civil Surgeon (SCS) were promoted and refitted as CCS. The post of CCS was classified into three branches, viz., Common, Specialty and Administration.
4. The learned counsel would further submit that the 1 st respondent in G.O.Ms.No.354 dated 23.10.2009 unequivocally made clear that the post of Page No.3 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 CCS shall be only a rank and the said designation would not deem the person holding the said rank as a Head of an administrative unit. He would also submit that a total number of 543 common posts of CCS were created initially, to enable smooth transition from each level to next one. The 1st respondent fixed that approximately 1/28th of the total number of the post of CCS shall be filled up every year. Therefore, the 2nd respondent, by the office proceedings Re.No.78000/E6/1/09 dated 30.04.2010 had initially approved a list of 291 Medical Officers to be promoted and refitted as CCS. In view of the creation of the post of CCS, large number of Doctors were promoted as CCS. This necessitated the 2nd respondent to assign the duties and responsibilities of CCS and to this effect, the 2nd respondent issued an office memorandum in Re.No.82153/E3/1/10 dated 22.12.2010.
5. By virtue of the said office memorandum, all the CCS in non- administrative posts (CCS common) and CCS (Specialists), who have put 20 years of total service were alone exempted from 24 hrs stay duty, casualty and post-mortem duty. Those CCS were required to do out patient (OP) duty and call duty, only in the event of mass casualty, epidemics, natural calamities and Page No.4 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 in adequate man power. In view of the creation of the new posts of CCS, the duties and responsibilities of the Government Doctor's right from Government District Head Quarters Hospital to non-Taluk Hospitals have been re-fixed in line with the office memorandum Ref.No.82153/E3/1/10 dated 22.12.2010 issued by the 2nd respondent.
6. It is further submitted that though the post of CCS was created to provide an avenue for promotion for the Government Doctors, the exemption granted to those CCS has created an anomalous situation that the entire work load hitherto has been shifted to non CCS Doctors and in the State of Tamil Nadu, there are 31 District Head Quarters Hospitals and 100's of Taluk and Non-Taluk Hospitals catering the medical services of the population. In view of health awareness campaigns carried out by the Government and media, there is a tremendous increase in flow of poor people living in semi urban and villages to the Government Hospitals. Further, the introduction of emergency medical service through toll free No.108 Ambulance has steadily increased the inflow of patients with various medical ailments ranging from serious road accidents to animal bites.
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7. The situation prevailing at the Government District Head Quarters Hospital, Kumbakonam, Thanjavur District, where the petitioner at present employed would depict the ground realities. There are 15 Assistant and Civil surgeons, 7 Senior Civil Surgeons and 16 CCS. Among the Assistant and Civil Surgeons, 4 Doctors are specifically allocated to Comprehensive Emergency Obstetric and Neonatal (CEMONC) care duty as well as Obstetric emergencies and Neonatal emergencies. About 3 Anesthesiologists are performing call duty every alternative day. In view of the exemption given under the office memorandum dated 22.12.2010, the Doctors in the rank of CCS are not attending any of the emergency duties, though they are physically present at the Hospitals. Thus, only 7 Assistant and Civil Surgeons and 5 Senior Civil Surgeons have to discharge the entire work load of attending all casualty cases, medical & surgical emergencies and medico legal cases along with the routine out patient (OP) duties. By virtue of the impugned office memorandum, the petitioner along with other Doctors were forced to work beyond their capacity, which exposes them to the risk of committing error of judgment in diagnosis and in treatment.
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8. It is further submitted that the petitioner and other Assistant Surgeons gave representation on 13.01.2011 to the 3rd respondent through proper channel bringing to his attention the above problems. In view of the lack of adequate number of Assistant and Civil Surgeons, each non CCS Doctor is called upon to do 24 hours casualty duty frequently. Making the situation worse, these doctors apart from the above stated duties are also required to do frequent post mortem duties. It is pertinent to state that once a Doctor attends a post mortem, he is not expected to attend any other patient without disinfecting himself. Frequent postmortem duty also makes the Assistant and Civil Surgeons sick and by a letter dated 28.02.2011 and 14.03.2011 the petitioner and other Assistant Surgeons brought the said facts to the notice of the 2nd respondent and has sought for remedial actions. A detailed representation has been given to the District Collector, Thanjavur on 19.03.2011 and 30.08.2011 high lighting the day today problems faced by the non CCS Doctors at the Government Hospitals, due to the exemption granted to CCS under the above stated office memorandum issued by the 2nd respondent.
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9. The exemption granted to the CCS Doctors as per the office memorandum has instead of effectively utilizing their services has only deprived their skill and experience to the benefit of the public. There is qualitative difference between a casualty patient requiring emergent treatment like head injury attended by an Assistant and Civil Surgeon and CCS doctor. The skill and knowledge possessed by a CCS by virtue of their experience would enable them to read an x-ray or CT scan and assess the level of injury to take clinical decisions instantly. The same cannot be done by a Non CCS Doctors who has to refer the patient to a specialty institute, usually the Government Hospital situated at District Head quarters.
10. Similarly, postmortems done in medico legal cases involving poisoning, culpable homicide too warrants experienced Doctors holding the rank of CCS to render an accurate medical report, which plays a vital role in deciding the criminal and accident cases by the Court of law. Further, in view of the exemption granted to CCS, the non CCS Doctors, like the petitioner are squeezed to work for longer hours a day, which may cause error in diagnosing the patient and treating them. Earlier 24 hours duties was done in two shifts. Page No.8 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 But, now one Doctor has to look after round the clock all in-patients in the hospital, casualty cases, postmortem, out-patients etc.,. This has significantly affected the health of the Doctors. As a matter of fact, on 14.02.2012 and 07.03.2012 two doctors suffered fits and chest pain, while discharging their duties. This was brought to the notice of the 3 rd respondent by a representation dated 30.04.2012 sent through proper channel. But, no action has been taken till now.
11. Due to the implementation of the above said office memorandum issued by the 2nd respondent, it caused great amount resentment among poor general public and it often causes ruckus, more particularly while a single non CCS Doctor is on 24 hrs duty, he has to attend patients and perform postmortem too. In this regard, a patient and a lawyer at Kumbakonam, Mr.A.Elangovan has sought for certain information from the 4 th respondent under RTI Act on 10.06.2011 and 08.11.2011 touching the working pattern of the Govt. District Head Quarters Hospital, Kumbakonam, Thanjavur District and the 4th respondent has confirmed the above said plea of the petitioner. Page No.9 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012
12. The learned counsel for the petitioner would further submit that the 1st respondent in his reply dated 04.05.2011 instead of looking into the consequences caused due to the exemption granted to CCS had once again reiterated that those CCS who have completed 20 years of service have been exempted from attending 24 hrs stay duty, casualty and post mortem duties. Further, adding fuel to the fire, the 3rd respondent has also granted exemption to certain CCS who has experience less than 20 years also. In this regard, the petitioner along with other casualty Doctors have given a representation dated 10.05.2012 to the 1st respondent. But the same went in vain.
13. Under the office memorandum issued by the 2nd respondent such of those Doctors who are promoted and refitted to the post of CCS have been totally exempted from attending crucial duties like casualty duty and postmortem duties and the said office memorandum is not at all backed by statutory authority and the same is arbitrary and irrational.
14. A counter affidavit dated 11.12.2014 has been filed by the respondents, wherein it is stated that as per the office memorandum dated Page No.10 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 20.12.2010 passed by the 2nd respondent, duties and responsibilities were assigned to the CCS (refitted from Senior Civil Surgeon / Civil Surgeon). According to the circular, all the CCS in non-administrative post (CCS – common) and all the CCS specialists, who have rendered more than 20 years of total service alone were exempted from attending 24 hrs stay duty, casualty and post mortem duty. However, they have to attend the regular duties in OP ward / call duty in the event of mass casualty epidemics, natural calamities and other duties as assigned by the Head of the Institution. It is also stated that all those Senior Civil Surgeon holding administrative post and now, CCS occupying the administrative post alone were exempted from the 24 hrs stay duty, casualty and post mortem duty. As per paragraph No.2 of the office memorandum dated 20.12.2010, in the event of more than one CCS working in the same Institution and completed 20 years of service and available in the same specialty only, the Civil Medical List (CML) senior alone will be granted exemption and all other Chief Civil Surgeons in other specialties have to do duties irrespective of number of years completed.
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15. The learned Additional Government Pleader appearing for the respondents would submit that due to lack of promotion avenues of Doctors who have stagnated more than 20 years of service, Government issued orders in G.O. (Ms). No.354, Health and Family Welfare Department, dated 23.10.2009 and created 1072 numbers of CCS posts for re-fitment purpose. It is quite natural when the Doctors working in the cadre of Senior Civil Surgeon and Civil Surgeon were moved to the Chief Civil Surgeon cadre and therefore, a vacuum was created between the higher and lower cadre. Hence, the work load was eventually shifted to the lower cadre i.e., Assistant Surgeon and this work load is only a temporary phenomena, since new recruitment at entry level was not done at that time. Now after the formation of Medical Services Recruitment Board, a large number of Doctors in the different specialties have been posted to various District Headquarters, Taluk and Non-Taluk Hospitals on priority basis, after assessing the need of the Doctors in scarcity prone areas.
16. He would further submit that in the office memorandum, dated 20.12.2010 the CCS even though completed more than 20 years of service Page No.12 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 have to attend all the duties as assigned by the Head of the Institution. The duty exemption and other special service conditions applicable to CCS will be available to only such officers, who have been promoted through panel seniority as per G.O. (Ms) No.245, Health and Family Welfare (A2) Department, dated 30.10.2013. Further, all the CCSs have to attend duties assigned by the Head of Institutions, except the Chief Civil Surgeons in the administrative post.
17. The learned Additional Government Pleader would further submit that the petitioner who is in the threshold of his career as Assistant Surgeon and just completed 7 years of service resisting to do the duties as assigned to him, in order to evade from his responsibilities and simply blaming the senior doctors for not attending the duties. Having selected to the noble profession, the petitioner should render dedicated services to the poor people even though at some times the work load may be heavier than normal course and it is not justifiable to avoid the duties and responsibilities assigned to them. Page No.13 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012
18. It is further contended that shortage of Doctors in the year 2012 has now been reduced to a considerable extent by appointing new candidates recruited through the Medical Services Recruitment Board. As on date 14 numbers of Assistant Surgeons are working at the Government Headquarters Hospital, Kumbakonam, Thanjavur District and the circular was issued by the 2nd respondent without detrimental to the smooth functioning of the Government Hospitals in rendering public service to the poor public. The District Headquarters Hospital, Kumbakonam being the CEMONC centre, functioning with no shortage of Doctors in the field of Diploma in Gynecology and Obstetrics, Diploma in Child Health, Diploma in Anesthesia. The petitioner is giving false report just to escape from the duties of his post.
19. Further, the learned Additional Government Pleader would submit that various circulars have been issued in super-session to the office memorandum dated 20.12.2010 in which the duty exemption has been restricted to post mortem and casualty duty, only considering their service and age factors. Thus, vide letter dated 18.01.2024, it has been ordered that the CCS are also not exempted from call duty. In support of his submissions, the Page No.14 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 learned Additional Government Pleader drew attention of this Court to the various circulars, which are appended as follows,
(i) Ref.No.82153/E3/1/2010 dated 20.10.2012,
(ii) Ref.No.82153/E3/1/2010 dated 17.02.2014,
(iii) Ref.No.82153/E3/1/2010 dated 10.03.2014,
(iv) Ref.No.82153/E3/1/2010 dated 23.11.2016 and
(v) Ref.No.82153/E3/1/2010 dated 25.03.2022,
20. Heard the learned counsel appearing for the petitioner; the learned Additional Government Pleader appearing for the respondents and also perused the material records of the case.
21. Admittedly, the petitioner was working as Assistant Surgeon at Government District Head Quarters Hospital, Kumbakonam, Thanjavur District and he had put in 7 years of service, at the time of filing this Writ Petition. It is the only contention of the petitioner that the persons who have been appointed as CCS were granted exemption in attending 24 hours stay duty, casualty and post mortem duty, vide the office memorandum dated Page No.15 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 20.12.2010 issued by the 2nd respondent. For ready reference, the relevant portion of office memorandum dated 20.12.2010 is extracted hereunder:-
“The duties and responsibilities of CCS may be assigned as follows:-
1. All those CCS in non administrative posts (CCS Common) and all CCS (Specialists)who have put in more than 20 years of total service only may be exempted from attending 24 hours stay duty, Casualty and post-mortem duty. But they have to do all duties in the OP Ward, call duty in the event of mass casualty, epidemics, natural calamities and inadequate man power. They also have to attend duties assigned by the Head of Institution.
2. In the event of more than one CCS who have completed 20 years of service available in the same specialty (including General category). only the CML senior can be exempted and the other CCS in the specialty should do the specified duties. In the event of only a single CCS Specialist available at Taluk/ Non-Taluk Hospitals, he has to attend call Page No.16 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 duties in respect of their Specialty service.
3. Except those CCS in administrative posts senior most of HOD (CCS Common) all other CCS with less than 20 years of total service should do all duties including stay/ call duties.
4. All CCS and other cadres will have the same OPD and Ward timings.
5. When situation arise, senior mast CCS should come forward to look after administrative post.
6. The Joint Directors are instructed to ensure that the CCS Medical officers who have completed 20 tedats of service only be exempted from 24 hours stay duty, post mortem and casualty.”
22. However, after the above stated office memorandum, number of memorandums were issued on the subject matter of this Writ Petition, and the same are reproduced hereunder:-Page No.17 of 30
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23. The respondents in the counter affidavit has stated that the CCS, who have completed more than 20 years of services alone granted exemption of duties and not all others. Even it has been specifically stated that they have to attend the duties as assigned by the Head of the Institution, in exigency of service. Further, the duty exemption and other special service conditions applicable to CCS will be available to only such officers who have been Page No.27 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 promoted through panel seniority as per G.O. (Ms) No.245, Health and Family Welfare (A2) Department, dated 30.10.2013. As per the office memorandum of the 2nd respondent dated 20.12.2010, all the CCS have to attend the duties assigned by the Head of the Institution, except the CCS in the administrative post and all the other CCS with less than 20 years of service are attending all duties including stay duty / call duty in the Government Hospital. In furtherance to the above office memorandum, the 2 nd respondent has issued various memorandums which were extracted supra and the latest is the letter in Ref.No.25760/E3/1/2016 dated 25.03.2022, wherein it is made clear that no Medical Officer's irrespective of any cadre are exempted from call duty and all the Medical Officer's irrespective of any cadre, i.e., AS/SAS/CS/SCS/CCS should do morning / evening OP. Except the Medical Officer, who are holding administrative post. However, if emergency, arises, they should also take part to look OP services.
24. In view of the above factual matrix of the case, this Court finds that the Letter in Ref.No.82153/E3/1/10 dated 22.12.2010 issued by the 2 nd respondent does not warrant interference and the same is hereby confirmed.
Accordingly, this Writ Petition stands dismissed. No costs. Consequently Page No.28 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 connected miscellaneous petitions are closed.
13.03.2024
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
Jer
To
1.The Principal Secretary
State of Tamil Nadu
Health and Family Welfare Department
Fort St.George, Chennai – 600 009.
2.The Director of Medical Rural Health Services Teynampet, Chennai – 600 006.
3.The Joint Director Medical and Rural Health Services Thanjavur District Kumbakonam.
4.The Hospital Superintendent Govt. District Head Quarters Hospital Thanjavur District, Kumbakonam.
Page No.29 of 30 https://www.mhc.tn.gov.in/judis Writ Petition No.15656 of 2012 J.SATHYA NARAYANA PRASAD, J., Jer Writ Petition No.15656 of 2012 13.03.2024 Page No.30 of 30 https://www.mhc.tn.gov.in/judis