N Zubemo Lotha
Advocate (LLM Delhi)
Gauhati High Court
“Law has reached its finest moments when it has freed men from the unlimited discretion of some ruler.” Douglas, J.
Nothing has ever stirred my mind so much during these extraordinary times of Covid-19 lockdown than the recent decision of the Nagaland State Cabinet wherein the services of newly appointed 27 Medical Officers (MO) purely on contract basis have been regularized because there is Covid-19 situation. Such an act is entirely unjustified because even though the Covid-19 situation requires doctors at every hospital and every medical centre, it does not necessarily call for urgently regularizing the services of such doctors to serve the Covid-19 purpose. This is an unfair decision from the part of the government and moreover, as envisaged under the Constitution of India in Article 14, the right to equality, there must be a reasonable nexus in the objective sought to be achieved by any State action, as such, the government has to think whether there is any reasonableness to regularize the services of doctors who were appointed on contract basis in contravention of all government service norms because there is Covid-19 situation. This decision is entirely unreasonable and extraneous that the English Courts in 1948 termed such unreasonable act of a government as 'Wednesbury unreasonableness’, which means a reasoning or decision so unreasonable that no reasonable person acting reasonably could have made it and such decisions are made subject to judicial review. This decision in question has been taken without application of known principles, rules and conventions guiding such government service regularization, and it is therefore opposed to the principles of rule of law as laid down in the Constitution of India. Every discretionary power vested in the executive should be exercised in a just, reasonable and fair way. Therefore any State action which is unfair, arbitrary, discriminatory and unreasonable is sufficient to constitute that it violates the right to equality under Article 14 of the Constitution of India, and therefore the State action is void in the light of Fundamental Rights guaranteed to every citizen hence the decision liable to be rescinded.
When has medical services not been an emergency? All medical services and hospitals serve emergency purposes always, anytime and every day. Covid-19 is just an extraordinary healthcare situation and not an emergency situation to enable certain class of people to be given regularization while the rest of the qualified doctor-students are struggling day and night to get into State service through Nagaland Public Service Commission (NPSC). Because of the lockdown most of the highly experienced and prepared doctors living outside the state of Nagaland couldn't appeareven for the recent contract service selection. Moreover, if the situation is sourgent that the government needs the services of only eligible doctors to be regularized to serve then a prudent action would have been to invite applicants who have qualified NPSC prelims, who have faced the written and oral examinations in the recent years yet couldn't get through. These are genuine professional doctors who depend only on their knowledge for employment and who struggle and wait years and years for the next NPSC examination to happen because the last open NPSC advertisement for medical recruitment exam was in 2018.The State government should have ensured that the medical posts are properly advertised through NPSC on time and if the situation is so urgent then the NPSC can be advised to conduct examinations on fast track basis.
The government, who is the guardian of the rights and interest of its citizens should ensure that every citizen seeking public employment should pass through the standard NPSC examination for appointment to service because the Nagaland Public Service Commission has been established under the Constitution of India as the standard commission to conduct examinations for recruitment to higher State services and to advise the Governor on disciplinary matters. Any attempt to bypass the State Public Service Commission for regular employment shall be an act or omission in disregard of the Constitution of India and also the sacred Preamble to the Indian constitution which contemplates for securing justice, liberty, equality, fraternity to all its citizens. Any attempt such as the matter in question to bypass the constitution by a State machinery must be sent to the appropriate Central or State authority for review and advice or guidance by the government itself. Likewise, regularization in any public employment requires the concurrence of NPSC in every case which goes through the Department concerned. Without going through the standard procedures of employment in public service and regularization, the government cannot favor a certain class of people for direct regularization while the rest of the contract employees have to follow the standard procedure. Without prejudice to anyone or to any doctor, the services of a doctor require highest competence and capability, and the only standard procedure for public employment in India to test its capability is through the examinations of Public Service Commissions.
It also puts my mind to question as to how the government will handle a situation if anyone of these newly regularized doctors appointed on Covid-19 urgency basis wants to go for higher specialization studies because some of them may be fresh graduates. The government cannot stop them because there is no such rule to withhold them. Will the government in that case call again for contingency recruitment and regularize them because the post is Covid-19 enabled post?
Now the government has again tendered advertisement for further recruitment of Medical Officers/Specialists on urgent basis during this situation of lockdown. It really saddens me to think about the situation of all those state employment aspiring doctors who have been seriously preparing for NPSC recruitment. Now, since this recent Covid-19 regularization have created a panic among all the doctors serving and studying outside the state of Nagaland, they are confused and bewildered as to how to travel and stay in quarantine for 14/28 days and appear for the exam, leaving their jobs and studies outside at risk. I sincerely wish the government would keep all contract appointments on contract basis and for regular public employment let every qualified doctor have the chance to face the NPSC at a later date, at a better time when the government would have controlled the Covid-19 situation in the state. I repeat that the NPSC is the only standard commission to recruit any person for higher post in the state employment which is authorized by the Constitution of India and there cannot be overlapping of powers. Otherwise the state government is only creating chaos and undue restlessness to its own people, why? Again, if all the vacant Medical Officer (MO) posts are being filled up by doctors first appointed through contract basis and then soon after appointment to convert them to regular post then there will not be any M.O. post left for serious doctor-student NPSC aspirants, not sooner before they overage.
A reasonable review-decision by the Government in this Covid-19 regularization issue would justify the requirement of non-arbitrariness and that would satisfy the legitimate expectations of the aggrieved citizens. Every reasonable action of the government is expected to be in the interest and for the welfare of the citizenry and that is when I can proudly say the government of the people, by the people and for the people does not perish from this land of festivals.
