W.P.Nos.6475, 6480, 6815, 6977, 7037, 7170 to 7172 and 7412 of 2018
W.P.No.6475 of 2018
1 R.Sowmyaa [ PETITIONER ]
W/o. J.Sundaravadhanam No.40 Rajakkal
Kullappa Mudali Street Pichanoor
Gudiyatham Vellore District- 602.
Vs
1 The Secretary [ RESPONDENT ]
Tamilnadu Health and Family Welfare
Department Fort St George Chennai-9.
2 The Director of Medical
Examination Directorate of Medical
Education No.162 Periyar EVR Salai
KILAPUK chennai-10.
3 The Secretary
Additional Director of Medicatl Education
Selection committee No. 162 Periyar EVR.
Salai Kilapuk Chennai-10.
4 Medical Council of India
Pocket-14 Sector-8 Dwarka Phase-I New
Delhi- 110 077.
——
Prayer
Declaring clause 9 (a) (i) of the prosectus issued by the
respondents 2 and 3 for selection of candidates for post
Graduate Degree and Diploma Courses 2018-19 session in
Government Medical Colleges and Government seats in Self
Financing Medical Colleges and seats in Rajah Muthaih Medical
College (Anna malai University) in unconstitutional and
violation of fundamental right enshrined under article 14 19 &
21 of Constitution of India and consequentily direct the 2nd &
3rd respondents to accept the petitioners application and
scrutinize along with other applications
S.VAIDYANATHAN, J
“Doctors Differ; Patients Suffer”
The petitioners are before this Court challenging Clause 9(a)(i) of the Prospectus for admission to the Post Graduate Degree/Diploma Courses in Tamil Nadu Government Medical Colleges and Government Seats in Self-Financing Medical Colleges affiliated to the Tamil Nadu Dr.MGR Medical University and Raja Muthiah Medical College affiliated to Annamalai University for 2018-2019, and to declare the same as unconstitutional. The said Clause 9(a)(i) reads as follows:
“9 (a). The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats:
i. Medical Officers selected by the TNPSC/MRB through Competitive written examination/Special qualifying Examination and appointed in Tamil Nadu Medical Services with minimum Two Years of continuous service excluding leave period such as Earned Leave, Unearned Leave on Medical Certificate, Unearned Leave on Private Affairs, Maternity Leave and any other unauthorised absence, as on 31.03.2018.”
2. The petitioners are aspiring to undertake further studies in Post Graduate course and all of them were qualified in NEET Examination and have obtained various ranks. The first respondent-Principal Secretary to Government, Health and Family Welfare Department, issued G.O.(D).No.411, Health and Family Welfare (MCA-1) Department, dated 15.03.2018, based on the recommendation of the third respondent-Selection Committee, represented by its Secretary/Additional Director of Medical Education, with regard to the service candidates for the purpose of allotment of seats which is the subject matter of the Writ Petitions and the said Clause is extracted above.
3. The petitioners are all in-service candidates. The sum and substance of the contention of the petitioners is that the lady Doctors who have taken maternity leave, have been excluded for the purpose of undertaking Post Graduate Course, as the period of leave has been excluded from Earned Leave from the purview of the continuous service. The Earned Leave will have to be taken into account without break in service and it cannot be treated on par with unauthorised absence. In respect of the previous year 2017-2018, the relevant Clause in the Prospectus in Clause 10(a)(i) reads as follows:
“10(a): The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats
i. Medical Officers selected by the TNPSC/MRB through Competitive written examination/Special qualifying Examination and appointed in Tamil Nadu Medical Services with minimum of Two Years continuous service as on 31.03.2017.”
4. For the year in question, namely 2018-2019, the relevant Clause with regard to the eligibility criteria has been modified, which is the subject matter of the present Writ Petitions and the same has been extracted in paragraph 1 above.
5. According to the petitioners, the petitioners being in-service candidates, are eligible to be admitted in the Post Graduate Course and that the women candidates who are on maternity leave, have been deprived of the period of Earned Leave/Maternity Leave availed of by them for the purpose of delivery, for calculating two years of service, which is opposed to law and unconstitutional.
6. That apart, the service rendered in the remote area/hill area/difficult area will have to be taken into account for the purpose of granting incentive marks upto the maximum period of three years in the said areas and the period shall not only be treated as continuous service, but they are also entitled to incentive mark as if they have rendered actual service.
7. The Government has issued G.O.Ms.No.75, Health and Family Welfare (MCA-1) Department, dated 09.03.2018, in which not only the continuous service was ordered to be taken into account, but also the partial service has got to be rewarded as incentive, subject to completion of minimum period of one year. It was further ordered therein that in case of a Doctor in any post being deputed to any other post for a period of more than 28 days, then such periods in that deputed post be considered under the arrangement stated therein based on only incentives specified for that deputed post and not for the original post. It is further ordered therein that the certification for the entitlement of incentive has to be provided by the relevant DDHS/JDHS with the prospectus for admission prescribing the formats and the procedure in details. It is further ordered in the said G.O. that with reference to the reservation of 50% of the Post Graduate Diploma seats to the Government Doctors, the Committee recommends to continue the same, but provide such reservation based on incentive only to such Doctors who have put in three years of service in such posts categorised under Category A.
8. Referring to paragraph 16 of the said G.O.Ms.No.75, it is contended by the learned counsel for the petitioners that three different types of incentive marks have been provided for three different categories mentioned as Category A, B and C. The said G.O.Ms.No.75 was modified by G.O.Ms.No.96, Health and Family Welfare (MCA-1) Department, dated 23.03.2018, in which, the Government has revised the places that are mentioned in the Annexures II, III and IV of the earlier G.O.Ms.No.75 to enable the Medical Officers to get the incentive marks who are working in the remote and difficult areas alone.
9. According to the petitioners, when the above G.Os. give certain benefits, it cannot be taken away by means of the said Prospectus and that the female employees are not only entitled to maternity leave which shall be taken into account for the purpose of continuity of service, but also for the purpose of incentive marks, if they serve in the remote/difficult/hill areas during the maternity leave, as the maternity leave and the incentive marks for those who are working in those areas cannot be bifurcated/disjunct/truncated.
10. According to the petitioners, a learned Judge of this Court in the earlier round of litigation filed by one Dr.U.Ishwarya in W.P.No.12660 of 2017, by order dated 22.12.2017, has held that the candidates would not only be entitled to the maternity leave which shall be counted for the purpose of continuity of service, but also for incentive marks. According to the learned counsel for the petitioners, a woman gets re-birth on account of delivery of a child and that the Government has periodically extended the maternity leave from three months to six months and to nine months thereafter and that there are amendments to the Maternity Benefit Act also.
11. If the maternity leave is not going to be counted for incentive marks, it would amount to discrimination and that it would amount to treating the men and women on a different pedestal. As the learned Judge in the said Writ Petition has considered the entire issue and that even though Writ Appeal has been filed against the said order of the learned Judge in W.A.No.374 of 2018, and that when the said Writ Appeal was taken up for hearing, the Division Bench has verbally observed that the hearing of the present Writ Petitions can go on, as there is no stay of the said order passed by the learned Judge in the said Writ Petition, and hence, the petitioners pray that the said G.Os. may be interfered with, as they are contrary to the provisions of law and unconstitutional.
12. Per contra, Mr.S.T.S.Murthy, learned Additional Advocate General appearing for the official respondents submitted that the admission to P.G. Courses/Diploma Courses are governed by the Regulations of the Medical Council of India (MCI) and after long drawn battle and pursuant to the order of the Apex Court, it has been decided that the UG and PG Courses have to be admitted based on the marks obtained in the uniform entrance examination conducted by the National Appropriate Examination for PG and UG courses respectively. Though the State opposed the introduction of NEET Uniform Code Entrance Examination in any manner for the State Quota, based on the orders of the Apex Court, both the MBBS and PG Course admissions were based on NEET for the academic year 2017-2018. The incentive marks are given to the Medical Officers who are in service to motivate them to render the service in the remove/hilly/difficult areas to the needy public and after getting the posting in these areas, and availing different kinds of leave, the candidate shall not be permitted to avail concession for getting the incentive marks, and if the contention of the petitioners is to be accepted, it would be giving an incentive to an undeserved candidates and depriving the deserved candidates without actually rendering service in those areas. Ultimately, the public are going to be affected. It is further stated that the MCI has amended the Regulations in Regulation 9 of the PG Medical Examination Regulations, 2000 by introducing the proviso to Paragraph IV and Paragraph VII and in this regard, the amended Paragraphs IV and VII read as under:
“(IV). The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in State/Union Territories. An All-India merit list as well as State-wise Merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post Graduate courses from the said merit lists only:
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 up to the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by the State Government/competent authority from time to time.”
“(VII) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/competent authority from time to time.”
13. The Government of Tamil Nadu has identified the rural/hilly area/difficult areas for awarding incentive marks to the in-service candidates/Doctors for the purpose of admission to Post Graduate Courses, vide G.O.Ms.No.29, Health and Family Welfare Department, dated 08.02.2017. However, the Government took a decision to keep in abeyance the said G.O. due to the representations received from various Doctors to add or to delete the areas specified in the said G.O. It was also decided to follow the procedures adopted by the State Government in the year 2016-2017 for the purpose of awarding bonus marks for experience of the service candidates while admitting the Post Graduate Medical Students for the year 2017-2018. Learned Additional Advocate General further submitted that a Writ Petition came to be filed in W.P.No.6031 of 2017 by one Dr.Rajesh Wilson before this Court to provide the incentive marks in accordance with the proviso to Paragraph-IV to Regulation 9 of the Post Graduate Medical Education Regulations, 2000 and by order dated 17.04.2017 in W.P.No.6031 of 2017, this Court allowed the said W.P. and directed as follows:
“… to follow Regulation 9(IV) of the Post Graduate Medical Education Regulations, 2000 of the Medical Council of India by adding 30% marks on the marks secured by the petitioner in the NEET Examination while preparing the rank list for admission to the Post Graduate Course in 50% reserved category for Government Servants for the academic year 2017-2018, as Regulation 9 is the only effective and permissible basis for granting admission to in-service candidates. It is made clear that admissions can and ought to be made only on the basis of the above. .. ”
14. It is further stated by the learned Additional Advocate General that as against the order passed in the said W.P., a Writ Appeal was preferred in W.A.No.484 of 2017 before a Division Bench of this Court, and by judgment dated 03.05.2017 in the said Writ Appeal, the Division Bench gave a split verdict, in which one learned Judge took a view that the policy of the State Government for giving weightage marks for the in-service candidates is not in conflict with the method evolved by the MCI and the other learned Judge took a contrary view upholding the order of the learned Single Judge holding that the method of awarding incentive marks is not in accordance with Regulation 9 of the Post Graduate Medical Education Regulations, 2000 and directed the State Government to formulate the admission process in accordance with the said Regulations. The matter was referred to a third Judge, who by order dated 06.05.2017, held that the incentive marks should be given in accordance with the said Regulation 9. However, the third Judge held that the decision of the Government in identifying the rural/remote/difficult areas for the year 2017-2018 does not warrant any interference in view of paucity of time. It was also observed that except with regard to identification of hilly and remote/difficult areas done by the appellants in the said Writ Appeal in terms of proviso to Regulation 9(iv) of the said Regulations, which is to be implemented forthwith.
15. It is further argued by the learned Additional Advocate General that based on the above order of the Court, the Government issued an amendment to notify the area of remote/difficult area and included those places in Clause 17(b) and Annexure VII of the Prospectus for the year 2017-2018 without adding any new places, vide G.O.(D).No.1054, Health and Family Welfare Department, dated 06.05.2017 and the admission for the academic year 2017-2018 was completed. Challenging the said G.O., certain Writ Petitions were filed in W.P.No.12246 of 2017, and other W.Ps) and this Court, by common order dated 16.06.2017, struck down a portion of the G.O. by observing as follows:
“… That G.O.Ms.No.1054, dated 06.05.2017 is quashed to the extent that amendments to prospectus dated 27.03.2017 which allow the State Government to grant weightage in terms of proviso to Regulation 9(IV) qua PHCs located in rural areas and to the Government Hospitals/Primary Health Centres/Government Medical College Hospitals located in TNR Districts. …”
16. Further, the Government filed Special Leave Petition before the Supreme Court in S.L.P.Nos.16541-16542 against the said order of this Court, and the Supreme Court granted interim order dated 06.07.2017 by observing as follows:
“… As an interim measure, it is directed that the impugned order dated 16th June, 2017, passed by the High Court of Judicature at Madras shall remain stayed. Needless to say, if any contempt proceedings have been filed on the basis of the said impugned order, the same shall also remain stayed. …”
17. Based on the above interim order of the Apex Court, the students got admission to Post Graduate Degree and Diploma Courses during the academic year 2017-2018 and they were permitted to continue their courses without any hindrance. However, the Government has constituted a Committee to identify the hilly, remote and difficult areas for awarding incentive marks to the service candidates for admission to Post Graduate Degree / Diploma Courses for the academic year 2018-2019, vide G.O.Ms.No.466, Health and Family Welfare (MCA.1) Department, dated 11.12.2017.
18. It is further stated by the learned Additional Advocate General that the Supreme Court, by order dated 31.01.2018, has ordered as follows:
“… Classification made under Regulation No.9(IV) of Post Graduate Medical Education Regulations, 2000, as amended in 2012 was questioned by the respondent writ petitioners before the High Court. The High Court has directed the State to identify remote and difficult areas. It is stated by the learned counsel appearing on behalf of the State that State has initiated the process of identifying the remote and difficult areas for the academic session 2018-19 and is going to complete the process soon and issue relevant notification identifying remote and difficult areas as per the law laid down by this Court vide order dated 15.12.2017 in SLP(C).No.11692 of 2017 titlted Dr.Amit Bagra and others Vs. State of Rajasthan and State of Haryana and another, etc. Vs. Dr.Narender Soni and others etc. (AIR 2017 SC 2892).
In the circumstances, we direct the State to complete the process by 10.03.2018 and notify remote and difficult areas as provided in the order. However, admission in the year academic session 2017-18 are not to be disturbed.
The Special Leave Petitions stand disposed of accordingly.”
19. According to the respondents, the persons who have not completed the required number of years of service and who have availed the maternity leave, are deemed to have been excluded for the purpose of the eligibility category, and it cannot be found fault with. It is stated that the candidates will be eligible to get 10% of incentive marks on the marks obtained in the NEET per year at a maximum of 30% for three years. If the Government permits the petitioners to avail 30% of incentive marks including the non-working period in the remote/difficult areas, the very purpose of giving the incentive marks by the Government, will get defeated. If the candidate has completed the required number of years of service, among the crucial date fixed for having the eligibility of a candidate, and that the petitioners did not work in the station and that they have availed of the maternity leave, they would not be entitled to get the incentive marks for getting admission into the P.G. courses. It is further stated by the learned Additional Advocate General that even though the other States are not granting the nine-month maternity leave, the Tamil Nadu being the first State in the country to extend the benefit to the women employees, there is no bar to the women employees to wait for completion of probation for availing the maternity leave. The main reason behind the grant of incentive marks is to motivate the Medical Officers to work in such areas of remote/difficult areas and if they are permitted to avail the concession in the form of incentive marks even on the leave period, then the flood-gates will be opened and the mindset of the Medical Officers may change and often they may avail frequent leave whatever the leave eligible to them. If the leave period is also taken into account for the purpose of giving incentive marks, the main intention of the Government to extend the services to the general public would be defeated and the public interest is always higher than the individual interest. The concession is given to the Government servant for getting incentive marks based on their contribution in the remote/difficult areas and this concession cannot be given to any Government servant in particular to the Medical Officers for getting admission in P.G. Degree Courses. Hence, for all the above reasons, the respondents pray that the Writ Petitions may be dismissed.
20. Learned counsel for the MCI relied on the Post Graduate Medical Education Regulations, 2000 and in particular, to the proviso to Regulation 9 in Paragraph IV and submitted that the incentive will be for every completed year of service and there would be incentive at the rate of 10% of the marks obtained for each year of service in the remote and/or difficult areas upto the maximum of 30% of the marks obtained in the NEET. There is no rounding of months to the nearest year and even if service is rendered for 11 months, the same will have to be ignored and completion of actual service is mandatory to avail incentive / bonus marks.
21. In reply, learned counsel for the petitioners contended that as there is no specific mention about the leave either in the Prospectus or in the G.O., in terms of F.R.59 and 60 of the Tamil Nadu Government Fundamental Rules, wherein different kinds of leave have been mentioned including the maternity leave and other eligible leave which has got to be taken into account for the purpose of continuity of service/counting of service and the eligible leave cannot be excluded and it has to be treated on par with the eligible leave. Learned counsel for the petitioners reiterated that there is a decision rendered by the Single Judge in W.P.No.12660 of 2017, dated 22.12.2017 by taking into account the totality of the circumstances and even though the same is subject matter of Writ Appeal in W.A.No.374 of 2018, the principles laid down by the learned Judge apply to the facts of the case and that the Writ Petitions may be allowed and the conditions imposed in Clause 9(a)(i) of the Prospectus in question have got to be declared illegal.
22. Heard both sides and perused the materials available on record.
23. The following issues arise for consideration in these Writ Petitions:
(i) Whether the eligible leave including the maternity leave, has got to be taken into account for the purpose of continuity of service for eligible criteria for pursuing the Post Graduate Course / Post Graduate Diploma Course ?
(ii) Whether the incentive marks have got to be extended to those who are on maternity leave/eligible leave, when they were posted in rural/hilly/difficult areas where they could not serve on account of the availing of the said maternity leave/eligible leave ? and
(iii) Whether the order of the learned Judge in W.P.No.12660 of 2017, dated 22.12.2017, which is the subject matter of Writ Appeal in W.A.No.374 of 2018, has given a finality to continuity of service for the purpose of incentive marks ?
24. From the narration of facts mentioned supra and the G.Os. stated therein, it is clear that for the purpose of continuity of service, the eligible leave, namely maternity leave, has got to be taken into account. By no stretch of imagination, the maternity leaven can be excluded for the purpose of taking into account the totality of years of service rendered by a woman employee for the purpose of considering the eligibility of appearing for the P.G. Medical Examinations. I am in entire agreement with the learned Judge in W.P.No.12660 of 2017 insofar as the continuity of service is concerned with regard to the availing of maternity leave by the in-service women candidates and the said leave has got to be taken into account as the eligibility criteria.
25. The contention of the Government is that the in-service candidates are given maternity leave benefits, and other eligible leave in terms of the Government Orders in force, and that the extending the maternity leave benefit may not be correct for the issue in question, particularly when it covers the larger question of admission to P.G. Courses.
26. The case of the petitioners herein is not that the Government has not extended the benefits of maternity leave to them. The issue is as to whether the leave so availed of by them for the purpose of maternity benefits, has got to be taken into account for counting the total number of services as the eligibility criteria. When the leave is so authorised in and by law and that the women are entitled to maternity leave, which cannot be curtailed, the respondent/Government will have to take into account the maternity leave availed of by the petitioners/women employees for the purpose of counting the service regarding the eligibility criteria for the participation/taking up of P.G. courses.
27. The issue in dispute is with regard to the grant of incentive marks, and to avail of the incentive marks, the candidates will have to render actual service, i.e. unless and until the service is rendered in the remote/hilly/difficult areas, the incentive marks cannot be awarded for considering admission to P.G. Courses. The availing of maternity leave by women employees/women Doctors who are otherwise eligible, is pursuant to a deeming provision, whereas, awarding of incentive marks is not a matter of right to them. The women Doctors will have to actually serve in those areas to get the incentive marks for getting admitted to P.G. Courses. A reading of the MCI Regulations, more particularly, the proviso to paragraph IV of Regulation 9, as discussed supra, and pointed out by the learned counsel for the MCI and also the reading of G.O.Ms.No.75 and 96 discussed supra, will clearly show that the women employees are entitled to proportionate incentive marks, which means that for completion of every year of actual service, the in-service candidates would be entitled to 10% of the incentive marks. I am in disagreement with the view taken by the learned Judge in W.P.No.12660 of 2017, dated 22.12.2017 in granting the incentive marks/benefits for the period of service not actually done by them, more so, during the period of availing of the maternity leave, as the deeming provision is completely different from the actual service rendered by them. The incentive marks cannot be demanded/granted as a matter of right, unless the actual service is rendered by them. The in-service candidates, with open eyes, have entered into the Doctor profession/service by getting the appointment and posting order from the Government, and the relevant clause of the said appointment and posting order reads as follows:
“The individual should serve in Government for a period of not less than three years excluding any period spent on training, leave or higher education. Also the individual should abide by the condition that after joining duty he/she will not be permitted to undergo Post Graduate course within the period of two years excluding the period of leave.”
28. More particularly, the relevant clause in the Prospectus dealing with the procedure for filling and submission of application in Clause 16 is extracted below for better appreciation:
“16. The service candidates shall be awarded an additional weightage marks upto 10% of the marks secured in the NEET PG 2018 per year of completion of service in remove/difficult areas as notified in G.O.(Ms).No.75, Health and Family Welfare (MCA1) Department, dated 09.03.2018 subject to maximum of 30% of marks secured in NEET – PG 2018. Fractional values of a year will not be counted for awarding weightage marks. (See Annexure VII).”
29. A conjoint reading of the aforesaid Clause 16 with the aforesaid clause in the appointment and posting order makes it clear the individual should serve in Government for a period of not less than three years excluding the period spent on training, leave or higher education and after joining the duty, the individual will not be permitted to undergo the Post Graduate course within two years excluding the period of leave. The words “excluding the period of leave” are not to be construed as unauthorised leave for the purpose of pursuing the Post Graduate Course. But however, the said words “excluding the period of leave” cannot be taken into account for the purpose of getting incentive marks, as the entire leave even authorised, will have to be excluded for the purpose of getting the incentive marks, and as stated supra, the incentive marks can be given by the DDHS/JDHS only after verifying the nature of actual work performed by the in-service candidates. The availing of maternity leave which the women Doctors are legally entitled to, cannot be a ground to claim the incentive marks as a matter of right, when they are not actually rendering the service for the purpose. Hence, the actual service stands on a different footing for the purpose of getting the incentive marks and the service “including leave” is a different connotation for availing the maternity leave. Hence, I am in disagreement with the grant of incentive marks as observed by the Judge in the said W.P.No.12660 of 2017, dated 22.12.2017 and that in terms of the MCI Regulations in Regulation 9, as discussed supra, only proportionate marks alone can be granted for actual service.
30. Learned Additional Advocate General relied on a decision of the Supreme Court reported in 2017 (14) SCC 642 (Narendra Sonoi Vs. State of Haryana), more particularly, he relied on paragraph 31 therein, which reads as under:
“31. Now, coming to the 50% of seats in the postgraduate diploma courses, Regulation 9(VII) mandates the State to reserve 50% of seats in the postgraduate diploma courses for medical officers in the government service who have served for at least three years in remote and/or difficult areas. The learned counsel for the petitioners submits that by just not acting, the State cannot be allowed to violate the mandatory provisions of Regulation 9(VII), and 50% seats in postgraduate diploma courses have to be offered to in-service doctors who have completed three years. The object and purpose of giving 50% seats in postgraduate diploma courses is to give incentive and encouragement to those in-service doctors who have rendered their service in the remote and/or difficult areas. The fact further remains that as on date, there is no list of difficult and/or remote areas which can be utilised for giving weightage.”
31. According to the learned Additional Advocate General, in terms of Regulation 9(VII) of the MCI Regulations, the in-service candidates will have to get 50% seats in Post-Graduate / Diploma courses, but will have to complete three years. The object of giving incentive marks is to encourage those Doctors who have rendered their service in those remote/difficult areas.
32. There is no quarrel over the principle laid down by the Supreme Court in the said decision. In the present case, the issue is as to whether the incentive marks have got to be given for those who have not completed the actual service in the remote/hilly/difficult areas and who want to have the benefit of incentive marks for admission to Post-Graduate courses, based on deemed provision of the maternity leave that the lady Doctors would be entitled to. As stated supra, the lady Doctors would be entitled to the period of maternity leave which would be counted for the purpose of completion of years of service, but for taking up the Post Graduate Course/Diploma in PG, certainly, the incentive marks cannot be given, as the lady Doctors will have to actually render their years of service in those areas to get the incentive marks. The mandatory requirement is to take the maternity leave period as continuity in service. But there is no mandatory requirement to grant incentive marks when those lady Doctors have not actually rendered / served in those areas.
33. The issue in these Writ Petitions is as to whether the continuous service and the actual service stand on the same footing or on different footing. In view of the above discussion, the continuous service and actual service cannot be treated on par with each other, as they stand on a different footing. If the logic of deemed provision is applied, the Doctors who are likely to join the P.G. courses, can only do post-mortem and they may not be fit for performing regular surgery.
34. Further, the Supreme Court, in the decision reported in 1985 (4) SCC 71 (Workmen Vs. American Express International Banking Corporation), had an occasion to consider the case of employees “actually worked”. The said case arose under the Master and Servant relationship and taking note of the welfare Legislation being the Industrial Disputes Act, the Apex Court rendered a finding that the “actually worked under the employer” must necessarily comprehend all those days during which the workman was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. For the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked, which had to be taken into account if the employee has availed of the legitimate leave, the Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked. Hon’ble Mr.Justice O.Chinnappa Reddy, who authored the said judgment of the Apex Court, had held that the welfare statutes must receive broader interpretation and that “actually worked under the employer” cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc.
35. The principles laid down by the Apex Court in the said decision would be applicable to this case only for the purpose of getting the service benefits like maternity leave, maternity benefits, etc., but the same principle cannot be applied to Doctors, who cannot be treated on par with the ordinary workmen, more particularly, in the present situation, where the Doctors want to take into account not only the continuity of service, but also for award of incentive marks, and as the principles enumerated under the Labour Legislation cannot be extended for the purpose of granting incentive marks. The said principles can be extended only for the purpose of continuity of service, i.e. for completion of two or three years of service which are required for the purpose of eligibility criteria and not for incentive marks. Otherwise, by granting incentive marks, we will be creating Specialist Doctors, who would only perform post-mortem and not real surgeries.
36. Hence, for all the reasons stated supra, I am concurring with the view taken by the learned Judge in W.P.No.12660 of 2017, dated 22.12.2017 for granting the continuity of service for availing of the maternity leave by the women Doctors and hence, question No.(i) framed above is answered accordingly. But however, I am in disagreement with the view taken by the learned Judge in W.P.No.12660 of 2017, dated 22.12.2017 with regard to the questions framed above in (ii) and (iii), for which purpose, the Registry is directed to place the matter before the Honourable Chief Justice for referring the matter to a Division Bench for the purpose of deciding the said questions, i.e. to decide the issue as to whether there shall be actual service required for the purpose of getting incentive marks, more particularly in the light of the proviso to paragraph IV of Regulation 9 of MCI Regulations discussed supra and G.O.Ms.No.75 and G.O.Ms.No.96.
“Judges differ; Patient survives”.
03.04.2018
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