The author, N. Zubemo Lotha, LLM, is an Advocate at Gauhati High Court, Guwahati, Assam.
(The views expressed in this article are the author’s own and do not necessarily reflect that of Nagaland Tribune)
Another unprecedented debate regarding a recent notification of special regularisation drive of medical officers, nurses, technicians and other para-medical staff appointed in the year 2020 during the Covid-19 emergency by the Departmentt of Health and Family Welfare, Government of Nagaland, has ignited dissension among various organisations in Nagaland. The special regularisation drive has been approved by the State Cabinet to acknowledge the exceptional efforts of the contractual health professionals who were recruited in response to the State Government advertisement on August 4th, 2020, during the Covid-19 surge to increase human resources. This recognition has also been supported by the Ministry of Health and Family Welfare, Government of India. Some organizations against the special recruitment have objected on the grounds that it disregards the principles of meritocracy and equal opportunity, which are fundamental to fair service recruitment. They argue that any recruitment should be conducted through the NPSC/NSSB, as applicable. On the other hand, the Covid-19 health professionals affirm that the special regularisation scheme has been approved in accordance with assurances given by both the State and Central Governments and is therefore legitimate.
The right to dissent against the action or inaction of a public authority are the hallmark of a democratic society, whose reasonable demands should be heard by those in power and decision is reached after proper deliberations. Every citizen has the right to act as a watchdog on the Government’s policies, and disagreements citing reasons can be raised to challenge why a particular decision might not have favourable consequences for the people at large. This can lead to peaceful dialogue and reconsiderations if found reasonable. The Constitution of India encourage the right to protest in a peaceful manner without infringing on the rights of others, and without affecting the sovereignty and integrity of India, public order, decency or morality, or incitement of an offense, among other things.
The right of a citizen to dissent or protest emerges when a public authority or government fails to meet the legitimate expectations of the citizen. The doctrine of legitimate expectation has been designed to protect the substantive and procedural expectations of people in order to coerce the public authority to uphold the principles of natural justice and fairness in administrative action while dealing with public policy. Procedural legitimate expectation is based on the presumption that a public authority will follow certain procedures in advance of a decision being taken, while a substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit.
The existence of “reasonableness” has been regarded as the chief basis to claim the right of legitimate expectation – and that legitimate expectations are capable of including expectations that go beyond enforceable rights, provided they have reasonable and rational basis. The concept of reasonableness in administrative law can be understood to mean legitimacy in administrative action – the conformity to law and rules that can be defended with justification and logic. Any law or rule which is backed by proper reasoning has fewer problems and has a greater degree of acceptability and obedience – hence, legitimacy is claimed through reasonability.
In other words, proportionality is the cornerstone of reasonableness which asserts that there must be a reasonable nexus between the desired result and the measures taken to achieve that goal. Administrative law being broad, thus on one hand has been given complete discretion and the only way to check and balance such discretion is the exercise of judicial review based on reasonableness – and how much power can the judiciary exercise in the name of reasonableness to take away the administrative autonomy and discretion has been a question of immense importance.
To understand more about unreasonableness in administrative actions and decisions that can be subjected to judicial review – the English courts in 1948 termed an 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. Further, Lord Greene M.R., opined that the courts would not interfere in the decision of public authorities, provided that: (a) The authorities have taken account of all the necessary things which it should have taken; (b) The authorities did not take into account the things which it should not have taken; (c) The decision is not unreasonable (something which no reasonable authority will take).
The principle of legitimate expectation broadens the scope of natural justice – where even though a person has no enforceable right he is affected or likely to be affected by the order passed by a public authority, the doctrine of legitimate expectation comes into play and the person may have a legitimate expectation of being treated in a certain way by an administrative authority. The opportunity of hearing the grievances of the aggrieved parties so affected by administrative action and reasonable explanations as to why their grievances cannot be entertained or should be entertained must be given in every decision-making process. Further, an expectation cannot be the same as anticipation, desire or hope, nor it can amount to a claim or demand on the ground of right. Where a person’s legitimate expectation is not fulfilled by taking a particular decision, then the decision maker should justify the denial of such expectation by showing some overriding public interest. Thus, even if substantial protection of such expectation is contemplated it does not grant absolute rights to a particular person.
In the existing circumstances, concerning the State Cabinet approval dated 7th of August 2024 for a special regularisation drive, the Directorate of Health and Family Welfare has been assigned the conduct of written exam and viva voce at the earliest.
The present contract employees shortlisted for the special recruitment were appointed by conducting an open selection process through an open advertisement dated 04th August 2024, as a means of augmenting the shortage of medical professionals in the hospitals in Nagaland during the Covid-19 surge as approved by the State Cabinet dated 25th June 2020. As per the appointment order, the selected candidates were appointed on a temporarily basis for 1 year, stipulating clearly that there shall be no provision for regularisation.
It is correct in law that the demands of the protesting groups are genuine because the common law requires the termination of these employees as per the contract of appointment which stipulates no right for regularisation on any ground – the principle flows from the obligation of the public authority to enforce faithfully the written law with its plain meaning without reference to personal desires or individual conceptions of justice. The common law strictly desires that every appointment and regularisation shall be conducted through the State Public Service Commission or the State Staff Selection Board as the case may be, and there are no provisions to bypass the same. Without going through the standard procedures of employment in public service, the Government cannot favour a certain class of people for direct regularization while the rest of the contract employees have to follow the procedure of common law. The protection of Article 14 – right to equality is always available to the arbitrary actions of the State through judicial review.
On the other hand, by adopting the principle of legitimate expectation the COVID-19 appointees seem to have acquired a substantive right for special regularisation because of the lawful representations made by the Government from time to time. Such right emanates from the principle of legitimate expectation as has been discussed above – to the extent that even though a person has no enforceable or legal right in common law, the expectation that has aroused from a representation or promise made by the authority must fulfill it. Thus, if a particular public policy is enacted specifically for an extraordinary purpose and does not seem to suffer from any perversity, unfairness, or unreasonableness to the extent that would shake human conscience, and if the decision of the public authority is in conformity with natural justice or is towards public interest then a special policy should be allowed to sustain.
In April 2021, the Supreme Court of India in a Suo Moto Writ Petition (Civil) No. 3 of 2021, in Re: Distribution of Essential Supplies and Services during Pandemic, in Order – H, has recommended for augmenting healthcare workforce. In para 65, the Court recognized why their sacrifices of the day should not be forgotten in the later days to come, and held, “we speak not only as members of this court, but also as grateful citizens of the country and commend the outstanding work of our all healthcare professionals during this crisis. They have truly gone beyond their call of duty and toiled day in and day out, relentlessly without rest amidst great challenges. It is absolutely necessary to take urgent steps for their well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric.
As such, our public memory of this public event has to transcend its conception as a “war” against the virus of COVID-19 itself, but rather to remember that it is “the complex epidemiological circumstances that promote these outbreaks and the under resourced health systems that are tasked with disease containment.” While the healthcare professionals have been at the forefront of tackling this crisis, we have to recognize their contribution as medical healthcare professionals who have undertaken “to protect public health using proven scientific evidence and best practices and to serve to community at large”, and not just as “Corona Warriors.”
Following the aforesaid Supreme Court Judgment, the Ministry of Health and Family Welfare, Government of India, vide No. Z.20015/43/2021–ME-1(FTS 8108321), dated 3rd May 2021, has issued guidelines to all the State Governments of India titled – to augment human resources for Covid-19, where among other things, it recommended in para 17 – the State Governments to consider giving preference in regular Government appointments of health professionals through the respective public service commission/other recruitment bodies for those health care professionals who complete a minimum of 100 days of Covid duty. It further recommended that vacant posts of doctors, nurses, and other healthcare staff in health and medical departments should be filled through an accelerated process within 45 days through contractual appointments, based on National Health Mission rules.
For instance, the Government of Nagaland advertised 199 sanctioned posts of Medical Officer in August 2020, and out of the total 199 posts, only 168 applicants came forward and accepted the appointment, fewer candidates because firstly the appointment was temporary; and, secondly, the high risk of doctors being exposed to the deadly disease and also the chances of posting in remote places during pandemic. Again out of the 168 appointments – more left the services sensing the dangers of the aggravating pandemic and some left to continue higher studies, and only the present 99 doctors shortlisted for special recruitment stood the test of time.
Most of these doctors were serving as junior/senior residents in their respective institutions in other States but sacrificed their careers and returned to serve the people. Instead of acting as an opportunist waiting to serve only on regular appointments, and also instead of hiding in the shelter of their homes to serve people after the pandemic – the present doctors accepted to sacrifice their lives by serving the people full time in all the three successive stages of the Covid surge.
Questions also arise as to why the various associations standing against the special recruitment drive did not oppose the proposal of the Government – especially when the Central Government directed the State Governments to consider giving preference in regular Government appointments of health professionals through the respective public service commission/other recruitment bodies under this special scheme, who complete a minimum of 100 days of Covid related duty. It is in the scheme of these lawful representations of special recognition and promise of a special scheme of regularisation made by the Government authority during these dangerous times that the present doctors continued to serve the people risking their lives with the hopes that if they ever made it through the pandemic then their services are guaranteed. From the prospect of not returning home alive as a frontline worker, these COVID-19 appointees have already suffered tremendous emotional and physical pain deserving special consideration from the Government.
Should loyalty end when benefits stop – should the Government and the people use them only when in need and throw them into the streets when the dangers are over? May we be reminded of the adage which says, “You must love your neighbour as yourself?” Who then is my neighbour? In law, the “neighbour principle” is defined as, “Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” The rule that you are to love your neighbour becomes in law, you must not injure your neighbour. Maybe if all these doctors who served during the most difficult times of the coronavirus pandemic died then there would be more room left for employment.
It may be recalled that at least 1596 doctors succumbed to COVID in India – 757 in the first wave and 839 in the second wave, according to IMA. The Central Government further proposed that those health professionals who successfully complete (successfully must mean without dying) 100 days COVID duty will be awarded PM distinguished Covid National Service Samman. I wonder what the Covid-19 doctors will do with a certificate with no benefit, other than to hang it in their bedroom reminding them of the times of their close shave with death trying to save their “neighbour”.
Extraordinary times call for extraordinary measures, therefore, based on a “national emergency” the Government appealed to all health professionals to serve the nation selflessly and promised special consideration for regularisation and also recognition for the services rendered. We must take note that even the fundamental rights of India which is otherwise a right inalienable and inherent to every citizen of India can be suspended during a national emergency. In the present case, the decision of the State Government to approve one time dispensation to grant regularisation to the COVID-19 employees in recognition of an exceptional service rendered during a national emergency cannot be considered to be unreasonable, nor it infringe on the rights of the people at large. Equity and good conscience should triumph over the common law during extraordinary circumstances. Finally, may we be reminded of the statement made by the Hon’ble Supreme Court in the suo moto Writ Petition (Civil) No. 3 of 2021, speaking on behalf of the people of India, which reads, “It is absolutely necessary to take urgent steps for the well being of the health professionals to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric.” The plain meaning of rhetoric means bombastic words used to impress people.
(The views and opinions expressed in this article are personal)
N. Zubemo Lotha, LLM.
Advocate, Gauhati High Court,
Guwahati, Assam.
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