Madras High Court
The Chairman vs Dr. Jerin C. Joy on 2 March, 2021
Author: R. Subbiah
Bench: R. Subbiah, Sathi Kumar Sukumara Kurup
WA No. 212 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on : 22.02.2021
Judgment pronounced on : 02-03-2021
Coram :
The Honourable Mr. Justice R. Subbiah
and
The Honourable Mr. Justice Sathi Kumar Sukumara Kurup
Writ Appeal No. 212 of 2021
and
C.M.P. No. 945 of 2021
----
1. The Chairman
Railway Board
Rail Bhavan, New Delhi
2. The General Manager
Southern Railway
Chennai - 600 003
3. The Chief Medical Director
Southern Railway
More Market Complex
Chennai - 600 003
4. The Medical Director
Southern Railway Head Quarters Hospital
Ayanavaram, Perambur
Chennai - 600 023
5. The Additional Chief Health Director
and DNB Coordinator
Southern Railway Head Quarters Hospital
Ayanavaram, Perambur
Chennai - 600 023
https://www.mhc.tn.gov.in/judis/
.. Appellants
1/18
WA No. 212 of 2021
Versus
1. Dr. Jerin C. Joy
2. Dr. Manoshi Chouhan
3. Dr. Meghna Shah
4. Dr. IrineBey Pi
5. Dr. Devarapalli Madhukar
6. Dr. Komman Ramya
7. Dr. Jelli Sudhakar
8. Dr. Keerthana D
9. Dr. Madhu Mekala
10. Dr. Ayinam Sri Ramalu
11. Dr. M. Yadavjit
All are DNB Trainees/Students
Southern Railway Head Quarters Hospital
Ayanavaram, Perambur
Chennai - 600 023
12. The Union of India
rep. by the Secretary to Government
Ministry of Health and Family Welfare
Nirman Bhavan, New Delhi
13. The Director
National Board of Examinations
(Ministry of Health and Family Welfare)
Government of India
NAMS Building, Ansari Nagar
Mahatma Gandhi Marg
New Delhi - 110 029 .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the order
dated 16.03.2020 passed in WP No. 12404 of 2019 on the file of this Court.
For Appellant : Mr. V. Radhakrishnan, Senior Advocate
for Mr. M. Vijay Anand
Additional Standing Counsel for Railways
https://www.mhc.tn.gov.in/judis/
2/18
WA No. 212 of 2021
For Respondent : Mr. V. Selvaraj
for Mr. D. Jayasingh for RR1 to 11
Mr. S. Diwakar
Central Government Standing Counsel for R12
Mr. V.P. Raman for R13
JUDGMENT
R. SUBBIAH, J This appeal has been filed as against the order dated 16.03.2020 passed in WP No. 12404 of 2019, by which the learned Single Judge allowed the writ petition filed by the respondents 1 to 11 herein and directed the appellants herein to pay salary/stipend to the respondents 1 to 11 on par with the emoluments paid to the resident Junior Doctors from the date of their joining the DNB Course.
2. Brief facts which are necessary to decide the issues involved in this appeal, are as under.
3. The Ministry of Health and Family Welfare, Government of India have established National Board of Examinations (NBE) with the object of improving the quality of medical education. The National Board of Examinations conducts Post Graduate and Post Doctoral examinations in https://www.mhc.tn.gov.in/judis/ 3/18 WA No. 212 of 2021 approved specialities leading to award of Diploma of National Board. The examinations provide a common standard for attainment of knowledge and competence in the study of medicine. The Diploma Qualifications awarded by National Board of Examinations are equated with Post Graduate and Post Doctoral Decrees for all purposes, including appointment to teaching posts. Further, National Board of Examinations conducts Centralized entrance tests for admission to super-Speciality and Broad Speciality Courses and the selected candidates are allotted to the Teaching Hospitals for undergoing the Courses. After completion of the Course, examination is conducted by the National Board, and Diploma is awarded by the Board. Based on the examination conducted by National Board, the respondents 1 to 11 have been admitted to undergo DNB Courses in the Southern Railway Head Quarters Hospital, Ayanavaram, Perambur, Chennai - 600 023. The respondents 1 to 11 are registered medical practitioners. The respondents 1 to 4 herein were also admitted to undergo Post Diploma (Secondary DNB) course in the Southern Railway Head Quarters Hospital. Similarly, the respondents 5 to 11 have been admitted to undergo DNB (Primary DNB) Course in the Southern Railway Head Quarters Hospital, Chennai. During the course of their studies, the Government of India, Ministry of Railways, by proceedings dated 06.04.2009 ordered that stipend/emoluments payable to the DNB Trainees (Junior https://www.mhc.tn.gov.in/judis/ 4/18 WA No. 212 of 2021 Residents) shall be in accordance with the salary payable to resident Doctors. On 13.05.2011, the Ministry of Railways further clarified that stipend payable to DNB Trainees (Junior Residents), working in Railway Hospital, will include non-practicing allowance also since DNB Trainees are qualified Doctors practising medicine. Further, during the year 2004, the second appellant re-fixed the minimum stipend payable to DNB trainees. While all the other Railway Hospitals in India paid emoluments to DNB trainees by treating them as Resident Doctors, the Railway Hospital, Perambur, Chennai alone reduced the amount payable to the students based on the minimum stipend payable to the DNB trainees fixed by the second appellant. In such a situation, the students admitted during 2014-2015 challenged the reduction in payment of emoluments by filing WP No. 32382 of 2014 seeking payment on par with DNB trainees admitted to other Railway Hospitals. The writ petition was admitted and interim order was granted in favour of the students. Following the same, the students admitted during 2015-2016 also filed WP No. 26615 of 2015 and it was allowed on 09.03.2016. Subsequently, the other batch of students admitted in 2016-2017 batch have also filed WP No. 26274 of 2016 and it was also allowed on 26.01.2017. The writ appeal filed against the order dated 26.01.2017 in WP No. 26274 of 2016 was also dismissed by the Division Bench of this Court in W.A. No. 1000 of 2017 dated 23.08.2017. https://www.mhc.tn.gov.in/judis/ 5/18 WA No. 212 of 2021 The students admitted in the year 2018-2019 also filed WP No. 14430 of 2018 and WP No. 18121 of 2018 seeking payment of full salary/stipend as resident Doctors and the same was also allowed on 09.10.2018.
4. The respondents 1 to 11 were admitted in the year 2018-2019 batch. They were paid only minimum stipend fixed by the third appellant. The Southern Railway Head Quarters Hospitals at Aynavuram, Perambur refusing to pay emoluments treating them as Resident Doctors. The respondents 1 to 4 have been paid monthly stipend of Rs.27,000/- and the respondents 5 to 11 were paid Rs.25,000/- only.
5. While so, on 21.01.2019, the Ministry of Railways sent a letter to General Managers of Indian Railways relating to payment of stipend payable to DNB students. But the Southern Railway has not passed any order regarding the stipend to be paid to DNB trainees. According to the respondents herein, inspite of the several orders passed by this Court regarding payment of full emoluments to DNB trainees on par with Junior resident Doctors, the appellants refused to extend the same benefits in their favour. The respondents 1 to 11 therefore submitted representations on 13.02.2019 and 25.02.2019 seeking payment of stipend on par with resident Doctors, but there https://www.mhc.tn.gov.in/judis/ 6/18 WA No. 212 of 2021 was no response. Therefore, they have filed the instant Writ Petition No. 12404 of 2019 praying to issue a Writ of Mandamus directing the appellants 1 and 3 to 7 to pay salary/stipend to the respondents 1 to 11/writ petitioners on par with emoluments paid to resident Junior Doctors from the date of their joining DNB course in the Southern Railway Head Quarters Hospital, Ayanavaram, Perambur, Chennai - 600 023, by treating them as Junior Resident Doctors.
6. Before the Writ Court, a counter affidavit was filed by the Medical Director, Southern Railway Head Quarters Hospital and opposed the prayer sought for in the writ petition.
7. The learned Single Judge, after elaborate consideration of the rival submissions, held that there is no justification to fix a reduced stipend which is not on par with emoluments of resident Doctors. Aggrieved over the same, the present Writ Appeal is filed.
8. The learned Senior Counsel appearing for the appellants submitted that earlier in WP No. 14430 of 2018 and WP No. 12821 of 2018, this Court directed the appellants to pay the stipend to the DNB trainees treating them as https://www.mhc.tn.gov.in/judis/ 7/18 WA No. 212 of 2021 Junior Residents. Thereafter, the Railway Board independently considered the issue with regard to payment of stipend/pay to DNB trainees and Junior Resident Doctors engaged in Railway Hospitals. After deliberations, the Railway Board, in letter dated 21.01.2019, clarified that the stipend payable to Junior/Senior Residents engaged in Railway Hospitals under the aforesaid scheme of Ministry of Health and Family Welfare, may be revised provisionally as per 7th Pay Commission Pay Scales placing them in Level-10 and Level-11 of the 7th Pay matrix. The Railway Board also stated that such revision is provisional pending any final modifications of the instructions contained in Ministry of Health and Family Welfare letter dated 01.10.2008 and 08.10.2008.
9. The learned Senior Counsel also submitted that before the Railway could implement the above decision, the 13th respondent/NBE, vide notice dated 02.04.2019 issued fresh guidelines, in which the stipend amount as fixed by the Railway Board, was directed to be adopted with a rider in para No.2 that NBE accredited hospital shall have to pay DNB/FNB candidates a basic stipend as mentioned therein or basic stipend according to State Government Policy, whichever is higher. Further, in para No.3 of the letter dated 02.04.2019, NBE has also explained the phrase "basic stipend according https://www.mhc.tn.gov.in/judis/ 8/18 WA No. 212 of 2021 to State Government Policy" and how it could be interpreted for basic stipend detailed therein. As per the notice dated 02.04.2019, as far as the State where the stipend to MD/MS, DM/Mch trainees of State Medical Colleges is paid as a consolidated sum (without break up of basic pay and allowance) the stipend of DNB/FNB will be consolidate sum paid to MD/MS trainees of State Government Medical Colleges or DM/Mch trainees of State Government Medical Colleges. So far as States where the stipend is paid to the trainees of Government Medical Colleges is structured as a "Basic Pay plus various allowances" and paid as per the recommendations of the 7th Pay Commission, the DNB and FNB trainees will be allotted the Level-10 and Level-11 pay matrix respectively. As far as the Railway Hospital at Perambur is concerned, stipend payable to MD/MS, DM/Mch trainees in Government of Tamil Nadu have to be paid as they are governed by the various orders passed by the Government of Tamil Nadu from time to time. Thus, the respondents 1 to 11 are governed by the terms and conditions contained in G.O.(Ms).No.307, Health and Family Welfare (MCA-2) Department, dated 25.07.2018 indicating the rates of stipend specified in the said Government Order and it is payable to the students undergoing various medical degree courses in State Government Medical Colleges. Therefore, on the basis of the aforesaid order passed by the Government of Tamil Nadu and in the light of guidelines issued by 13th https://www.mhc.tn.gov.in/judis/ 9/18 WA No. 212 of 2021 respondent/NBE in the letter dated 02.04.2019, the DNB trainees in Southern Railway are being paid stipend. While so, the learned Single Judge, without noticing the payment of revised stipend on par with the students undergoing Post Graduate courses in the Tamil Nadu State Government Medical Colleges, allowed the writ petition and directed the appellants to pay salary/stipend to respondents 1 to 11 on par with Resident Junior Doctors working in Railway Hospitals. The learned Single Judge did not consider that the disparity in payment of stipend between DNB candidates undergoing training in various accredited Railway Hospital situated in various zones is due to the guidelines and clarifications issued by the fifth appellant/DNB from time to time. Though the Railway Board has decided in their letter dated 21.01.2019 to pay stipend in 7th Pay Commission and placing them inLevel-10 and Level-11 of the pay matrix, subsequently, as per the instructions issued by the NBE, basic stipend related to DNB/FNB trainees is according to the State Government policy. Hence, the DNB/FNB trainees undergoing training at Southern Railway Headquarters Hospital, Perambur are now governed by GO Ms. No.307 dated 25.07.2018 as submitted earlier. The learned single Judge, without considering all these aspects, allowed the writ petition and directed the appellants to pay the stipend to the respondents 1 to 11 on par with junior resident Doctors and prayed this Court to set aside the order passed by the https://www.mhc.tn.gov.in/judis/ 10/18 WA No. 212 of 2021 learned Single Judge by allowing this writ appeal.
10. Countering the submissions of the learned Senior counsel for the appellants, the learned counsel appearing for the respondents 1 to 11 submitted that the National Board of Examinations conduct examinations on All India basis to select candidates to undergo the post graduate and post-doctoral courses and allot the students to various institutions, including teaching hospitals. After the course is completed, the students have to write the examinations conducted by the National Board and the degrees, diplomas, certificates are issued by the National Board which are recognised globally. Thus, the National Board, which conducts examinations for admission of students, allots the students to various institutions including teaching hospitals, conducts examination after completion of course and award degrees and diplomas. The National Board of Examinations also stipulates the maximum fees that can be charged from the students and the minimum stipend payable to the students. Since 01.01.2006, all the railway hospitals throughout India have been paying DNB students scale of pay applicable to Junior Residents. By proceeding dated 26.12.2013, National Board of Examinations revised the maximum fees that can be charged as also the minimum stipend payable to the DNB students. Further, on 31.10.2014, Ministry of Railways forwarded the revised guidelines of the National Board dated 26.12.2013 to all https://www.mhc.tn.gov.in/judis/ 11/18 WA No. 212 of 2021 the Railway Hospitals with a direction that the modified fee and stipend fixed by the National Board has to be followed. But the Southern Railway misinterpreted the proceeding dated 26.12.2013 of the the National Board of Examination and revised the stipend payable to the DNB students as if the amount fixed by the National Board is the maximum amount of stipend payable to the DNB students and thereby drastically reduced the stipend amount. The affected students at the relevant point of time filed WP No. 32283 of 2014 and by ordre dated 17.02.2015, this Court granted an interim order directing the Railway Hospital to continue to pay the stipend without any reduction. The succeeding batch of DNB students also faced similar problem and they filed WP.No.26615 of 2015 and it was allowed by this Court on 09.03.2016. Even in the year 2016 and 2017, DNB students were constrained to approach this Court seeking the indulgence of this Court. Even now, the National Board of Examination (NBE), by proceedings dated 02.04.2019 revised the minimum stipend payable to DNB students. But the said proceeding of the National Board of Examination is also misinterpreted, as usual by the appellants, by stating that the stipend fixed in the proceeding dated 02.04.2019 is maximum. In fact National Board of Examinations in the letter dated 29.05.2019 clarified the issue by stating that "In no way, the recent notifications dated 02.04.2019 have changed anything in terms of stipend https://www.mhc.tn.gov.in/judis/ 12/18 WA No. 212 of 2021 guidelines that are in place for hospitals in Tamil Nadu since 2013. November 2018 clarifications was only an interpretation of stipend guidelines in place since 2013. April 2019 modification has only increased the sum prescribed by NBE". Therefore, considering all these facts, the learned single Judge rightly allowed the writ petition filed by the respondents 6 to 11 and he prayed for dismissal of the writ appeal.
11. The learned counsel appearing for the 13th respondent, namely National Board of Examination, submitted that the 13th respondent, in the circular dated 02.04.2019, clarified the position with respect to payment of stipend stating that NBE accredited hospitals shall have to pay the DNB/FNB candidates basic stipend as mentioned in the circular. As per the circular, DNB/FNB candidates must be paid on par with Junior Resident Doctors. Therefore, the learned counsel for the 13th respondent submitted that the issue as regards payment of stipend is clear and it was also clarified by the 13th respondent in the aforesaid circular.
12. Keeping the above submission of the counsel on either side, we have carefully gone through the materials placed. In view of the rival submissions made on either side, the issue that arises for our consideration in this appeal is as to whether the respondents 1 to 11 are entitled to payment of https://www.mhc.tn.gov.in/judis/ 13/18 WA No. 212 of 2021 stipend by treating them as Junior Resident Doctor in the Southern Railway Head Quarters Hospital at Ayanavaram, Perambur, Chennai.
13. Since the entire issue involved is with regard to the understanding of the Circular dated 02.04.2019 issued by the National Board of Examination, it would be appropriate to extract it as under:-
"3. The phrase "basic stipend according to state government policy"
in para 2 should be interpreted for different states as detailed under:-
Categories of State The Phrase "basic stipend according to State government Policy" in NBE stipend guidelines should be interpreted as under:
For DNB Board For DNB Super Speciality
speciality trainees & FNB trainees
States which the stipend to The consolidated sum The consolidated sum paid
MD/MS and Dm/MCh trainees of paid to MD/MS to DM/MCh trainees of
State Government Medical trainees of State State Government Medical
Colleges is paid as a consolidated Government medical Colleges
sum (without any break-up of colleges
basic pay and allowance)
States where the stipend paid to Pay level 10 of 7th Pay level 11 of 7th CPC.
MD/MS and DM/MCh trainees of CPC.
State Government Medical (Cell 1, 2 and 3 of pay level
Colleges is structured as a 'Basic (Cell 1, 2 and 3 of pay 11 in pay matrix of 7th Pay plus various allowances level 10 in pay matrix CPC correspond to first, (Such as DA, NPA, HRA etc.,) of 7th CPC correspond second and third year of and paid as per recommendations to first, second and training respectively) of 7th CPC third year of training respectively)
14. A reading of the above Circular would show that the minimum stipend amount payable is mentioned in column No.2. As per the details furnished therein, in case basic stipend fixed in the said column of the circular https://www.mhc.tn.gov.in/judis/ 14/18 WA No. 212 of 2021 is lesser than the basic stipend paid as per the State Government policy, in such case, the State Government basic stipend shall be taken or adopted as a minimum. If the basic stipend payable by the State Government is Rs.10,000/-, then the minimum stipend payable should not be below Rs.10,000/- and the sum of Rs.10,000/- is the minimum stipend amount payable. At the same time, it does not mean that the respondents 1 to 11 are not entitled to the basic stipend payable on par with the Junior Resident Doctors working in the Railway Hospital at Chennai. In fact, the learned counsel appearing for the 13th respondent has stated that the respondents 1 to 11 are entitled for the stipend on par with the Junior Resident Doctors. While so, we are of the view that there is no cause for any sort of confusion, as portrayed by the appellants, in fixing the stipend payable to the respondents 1 to 11. Even assuming there is any such confusion, the appellants ought to have taken up the matter with NBE and sought for a clarification to sort out the disparity or anomaly, as the case may be, but that was not done. Due to the callous attitude exhibited by the appellants, successive batch of students were made to approach this Court with writ petitions year after year. Thus, the inaction on the part of the appellants had led to filing of periodic writ petitions from the year 2013 before this Court and this Court was constrained to adjudicate the very same issue all along, which the appellant could have https://www.mhc.tn.gov.in/judis/ 15/18 WA No. 212 of 2021 avoided. We hope and trust that the appellants, in their wisdom, would settle this raging issue without driving the students, who may be admitted in the next academic year, to approach this Court for similar relief, as in the past.
15. In the light of the above, we confirm the order dated 16.03.2020 passed by the learned Single Judge in WP No. 12404 of 2019 on the file of this Court. Accordingly, the Writ Appeal fails and it is dismissed. However, having regard to the totality of facts and circumstances of the case, we refrain from imposing any costs. Consequently, connected miscellaneous petition is closed.
(R.P.S.J.,) (S.S.K.J.,) 02-03-2021 rsh Index : Yes / No Internet : Yes / No To
1. The Chairman Railway Board Rail Bhavan, New Delhi
2. The General Manager Southern Railway Chennai - 600 003
3. The Chief Medical Director https://www.mhc.tn.gov.in/judis/ 16/18 WA No. 212 of 2021 Southern Railway More Market Complex Chennai - 600 003
4. The Medical Director Southern Railway Head Quarters Hospital Ayanavaram, Perambur Chennai - 600 023
5. The Additional Chief Health Director and DNB Coordinator Southern Railway Head Quarters Hospital Ayanavaram, Perambur Chennai - 600 023 https://www.mhc.tn.gov.in/judis/ 17/18 WA No. 212 of 2021 R. Subbiah, J and Sathi Kumar Sukumara Kurup, J rsh Pre-delivery Judgment in WA No. 212 of 2021 02-03-2021 https://www.mhc.tn.gov.in/judis/ 18/18