There is a systematic dismantling of incentive structures devised by Tamil Nadu to reinforce its state medical infrastructure to provide high quality advanced medical facilities to its residents, say the authors.

Tamil Nadu CM Stalin and PM Narendra Modi against the backdrop of the Supreme Court
news COOPERATIVE FEDERALISM Tuesday, September 28, 2021 - 17:24

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“Although the matter has been argued at some length, the main issue raised regarding reservation at the super-speciality level has already been considered in the Indra Sawhney case by a nine-judge bench of this court. Having regard to such decision, we are not inclined to take any view other than the view expressed by the nine-judge bench on the issue.”

The above statement was part of the judgement delivered by the Constitutional Bench (HL Dattu, SS Nijjar, Ranjan Gogoi, MY Eqbal and Vikramajit Sen) in the case (Faculty Association of the All India Institute of Medical Sciences (AIIMS) v Union of India) concerning applicability of reservation with respect of speciality and super-speciality faculty posts in AIIMS. This judgement also saw the bench sharing its opinion that the very concept of reservation implies mediocrity.

This judgement was later quoted by the Supreme Court bench (Dipak Misra and Prafulla C Pant) in its order to scrap the domicile requirement for super-speciality admissions, as required by the Governments of Tamil Nadu, Andhra Pradesh and Telangana.

This was the start of an effort that saw the systematic dismantling of incentive structures devised by Tamil Nadu to reinforce its state medical infrastructure to provide high quality advanced medical facilities to its residents.

Before scrapping of domicile requirement

The state of Tamil Nadu deployed the strategy of using domicile status and incentivising doctors who work in the state medical infrastructure (in-service candidates) to sustainably maintain various departments in the medical colleges of the state, and to ensure the efficient deployment of its investment and maintain institutional continuity.

From 1993 to 2015-16, the selection of candidates to the super-speciality courses in state medical colleges in Tamil Nadu was done on the basis of the entrance examination (90 marks) and marks for total service after completion of Compulsory Rotatory Residential Internship (CRRI) (maximum of 10 marks, with 1 mark per year). It is to be noted that Tamil Nadu applied the domicile rule, which meant that only candidates fulfilling the domicile requirement can apply for the super-speciality entrance examination. Moreover, 50% of the total seats were reserved for in-service candidates who are required to serve the government until superannuation while the remaining 50% seats were open to both service and non-service candidates, with bond requirement in terms of money and minimum period of service in the state medical system. This was done to maximise the probability of absorbing the trained super-specialists in the state medical system.

Also read: NEET and the illusion of ‘merit’

Tamil Nadu had embarked upon a long journey of creating state medical colleges in every district with an aim of broadening the availability of tertiary medical care to its residents. To produce the necessary human resource to sustain the state medical infrastructure, the state medical colleges went on to create more than 350 super-speciality seats, making it one of the largest efforts by a state government in India to do so.

The Indra Sawhney case and super-speciality seats in medical colleges

Perusing the judgement of Indra Sawhney v Union of India, one realises how only a passing mention of super-speciality in medicine is made, with no plausible connection to the reasons associated with domicile or reservation or “efficiency of administration”. In fact, one is left to wonder how a merely illustrative list produced by the 9-judge bench can hold Indian states to ransom on how they should manage their resources.

To explain the above inference, one should re-read this specific section in the judgement delivered by the 9-judge Supreme Court bench on Indra Sawhney v Union of India:

“…we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: (1) Defence Services including all technical posts therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment; (3) Teaching posts of Professors – and above, if any. (4) Posts in super-specialities in Medicine, engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive.

Post National Eligibility cum Entrance Test (NEET) SS and in-service quota

This dismantling of the domicile requirement in 2016-17 was followed by a move to divorce the state from the process of managing its own resources, that is super-speciality seats created in the state medical colleges. The Union government passed the Indian Medical Council (Amendment) Act, 2016, which declared that no other entrance examination, either at the state or the institution level, shall be valid for entry into DM/MCh/DrNB super-speciality courses.

Thereby, NEET–Super-Speciality (NEET-SS) began to be conducted by the National Board of Examinations (NBE) from the year 2017-18. This effectively removed not only the ability of state governments to conduct entrance examinations but also the ability to conduct counselling for the super-speciality seats created in their medical colleges, as the states were required to surrender 100% of their seats to the national pool. As an extension, the separate quota for in-service candidates stood null and void.

This piece is a part of TNM’s reader-funded Cooperative Federalism Project. Indian residents can support the project here, and NRIs, please click here.

Meanwhile, the in-service doctors also saw the in-service quota being removed from the state quota in post-graduate medical courses. To overcome this change in the selection process disadvantaging in-service candidates, which has a deeper impact on the integrity of the state medical infrastructure, a writ petition (Writ Petition (Civil) No 196 of 2018) was filed by the Tamil Nadu Medical Officers Association on behalf of the in-service doctors in the state.

It is to be noted that along with Tamil Nadu, states like Kerala, Maharashtra and Haryana also approached the Supreme Court with a similar prayer, to allow for separate source of entry for in-service candidates.

The Constitutional Bench disposed the case on reservation for in-service candidates with an order on August 31, 2020, stating that except the determination of minimum standards and coordination, the state’s power in regulating medical education was preserved. They also said that the state authorities may provide reservation for in-service doctors from within the state’s own merit list, with the prerequisite being that they clear NEET with the minimum prescribed marks.

The Health and Family Welfare Department of the Government of Tamil Nadu on November 7, 2020 issued GO (Ms) No 462, extrapolating the directions of the Constitutional Bench, which allowed state authorities to provide in-service quota in post-graduate medical courses, on to the super-speciality medical courses. Through this, the Government of Tamil Nadu sought to implement a 50% quota in super-speciality seats in the state for in-service candidates.

But this effort was of no avail, as the quota for in-service candidates was not allowed for 2020-21 as the process for super-speciality admissions had begun way before the issuance of this GO by the Tamil Nadu government. As the admission process was in the final stages, the Supreme Court bench (L Nageswara Rao, Hemant Gupta and Ajay Rastogi) on November 27, 2020 decided not to permit quota for in-service doctors for the year 2020-21 alone.

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With questions raised regarding the correctness of the judgement in the Tamil Nadu Medical Officers Association v Union of India and regarding the validity of the Government of Tamil Nadu GO No 462, it remains to be seen what trajectory Supreme Court decisions would take in the coming days.

Public health and state rights

Alongside the Supreme Court, the Union government has consistently encroached upon the rights of the state in public health, through NEET-UG, NEET-PG and NEET-SS. In fact, it is in face of these enigmatic pronouncements, especially Indra Sawhney (1992), that are uttered and re-uttered by the courts with amendments, coupled with the mounting encroachment into their rights by the Union, that the states in the Indian Union have to marshal their resources to deliver healthcare to their residents.

While public health is a state subject, the Union government plays an important role in devising policies and programmes, mainly due to its superior capability in terms of financial and technical resources. As a result of the deprivation of financial autonomy, states are forced to increasingly rely on the Union government’s aid and advice not only for nationwide pandemics, but local public health matters as well. With the very possible erosion of state medical cadre, thanks to intrusive acts by the judiciary and the Union government, one is amazed by the sheer audacity of cabinet ministers in the Union government parroting the line, “health is a state subject”, when asked about the botched handling of the pandemic by the Union government, including ineffective vaccine distribution.

The Supreme Court and various other individuals in the public sphere cite the “maintenance of efficiency of administration” argument through Article 335 of the Indian Constitution to refute demands for reservation. There remains a lacunae, wherein the definition of “efficiency”, “merit” and “efficiency of administration” in modern organisational structures in government is yet to emerge. Recently, Anurag Bhaskar had effectively argued that the term “maintenance of efficiency of administration” is a colonial and pre-colonial construct invoking Ambedkar’s writings, and that it is used as an exclusionary criterion by the upper castes to maintain their structural advantages and privileges.

The Supreme Court Bench (Uday Umesh Lalit and Dr Dhananjaya Y Chandrachud) in BK Pavitra vs Union of India (2019) stated the following, which steers the argument regarding “efficiency of administration” in a newer direction.

The Constitution does not define what the framers meant by the phrase ― efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order.

Speaking to TNM about “maintenance of efficiency of administration”, P Wilson, advocate and DMK Rajya Sabha MP, says, “Unless and until ample super-speciality doctors are available at the disposal of the state, the healthcare system cannot be successful. How does one retain the trained super-speciality doctors in government hospitals when private hospitals are ready to pay lucrative remuneration without the quota for in-service candidates?”

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In addition, one is left to ponder what upholding “maintenance of efficiency of administration” means in the following outcome faced in Tamil Nadu.

On August 25, 2021, the Director of Medical Education wrote to the deans of medical colleges asking them to get an undertaking from the non-service super-speciality doctors of 2020-21 who have not opted or are unwilling to take up posting in spite of availability of vacancies. The Hindu reports that many other state candidates who have completed super-speciality courses in government medical colleges in Tamil Nadu did not attend counselling held for posting. What is appalling is that according to a Health Department official, more than 50% candidates in super-speciality batches are from other states, and according to another source, nearly 80% of other state candidates skipped the process. In-service candidates in super-speciality seats in the state – with domicile and in-service quota – used to be about 40%, but in the post-NEET-SS scenario this has dropped to as low as 6%.

With the dismantling of the domicile requirement and in-service quota which could have prevented this eventuality, one wonders what is at stake for the Supreme Court, which has no operating definition for “maintenance of efficiency of administration” but which it swears by religiously.

While Karnataka produces marginally more health and medical personnel than Tamil Nadu, it fails to absorb them into the system reflecting in the overall health outcomes. Tamil Nadu, meanwhile, until recently bettered its health figures and expanded tertiary care, thanks to various measures to absorb the state-trained doctors into the public health system. The repeated attacks by the Supreme Court and the Union government on the state’s federal rights on public health and higher education in medicine will only weaken the ability of the state to stem brain drain. As pointed out by advocate Wilson in Dr Prerit Sharma vs Dr Bilu BS (2020), the Supreme Court has ruled that reservation is permissible in super-speciality medical courses, as seen in K Duraisamy & Ors v State of TN (2001), which was reiterated in the Modern Dental College and Research Centre & Ors v State of Madhya Pradesh & Ors (2016).

Wilson says, “Article 47 of the Constitution of India mandates the state to maintain public health. It is also a state subject. People residing in the respective states should have adequate healthcare facilities, provided by the primary healthcare centres operated by state governments in every nook and corner, including remote villages. Considering the growth in population and the non-communicable diseases load, it is the provision of super-speciality hospitals at every taluk headquarters in Tamil Nadu that could cater to the needs of the people until the last mile. Thanks to Dr Karunanidhi who introduced a quota for in-service candidates for PG and super-speciality courses when he was the Chief Minister. This was challenged and later upheld by the Supreme Court, in turn allowing the state to provide an incentive for trained specialists and super-specialists.”

It is in this context that one has to understand the demand of Tamil Nadu’s Health Minister Ma Subramanian to exempt the state from allocating UG, PG and Super-speciality medical seats in state-run medical colleges to the All India Quota (AIQ).

Speaking to TNM, Dr Amalorpavanathan Joseph, member, Tamil Nadu State Planning Commission, and former Convenor, Transplant Authority of Tamil Nadu, explained the link between public health and higher education in medicine, and the basic objective of state governments running medical colleges. “We don’t want to produce doctors who want to go to America, but those who are willing to be part of our government health infrastructure. I wouldn’t call providing a 50% quota to in-service candidates an incentive, but a good economic concept. The multiplier effect of government investment in developing these super-speciality seats is lost if they have no means to absorb the trained super-specialists. For example, take my Department of Vascular Surgery. Doctors came through service quota, studied vascular surgery, and went back and created Vascular Surgery departments all over the state. We must have clarity as to why we produce super-specialists,” he said.

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At this stage, there are two developments that require our attention. One is the release of the much anticipated report of the high-level committee headed by Justice AK Rajan to study the impact of NEET on medical admissions in India, which also illustrated the deleterious impact of the removal of the incentive structure that Tamil Nadu had devised for super-speciality seats. The second is the Public Interest Litigation filed by Dr Ezhilan Naganathan, DMK MLA from Chennai’s Thousand Lights constituency, regarding Section 57 of the 42nd Amendment Act 1976, under which Education was moved from the State List (List II of the Constitution) to the Concurrent List (List III).

In addition, in the judgement delivered on November 27, 2020 regarding in-service quota in super-speciality seats, it was indicated that related appeals and writ petitions be listed for hearing in February 2021. With September 2021 about to pass and the brochure for NEET-SS 2021-22 having been released with the exam scheduled to be held on November 13-14, 2021, it is to be noted that the appeals and petitions still haven’t got listed.

At a time when a slow encroachment on states’ rights in public health is widely discussed, the recently released draft of ‘The Postgraduate Medical Education Regulations, 2021’ by the National Medical Commission (NMC) states that the Directorate General of Health Services, operative under the Union Ministry of Health and Family Welfare, would be conducting the counselling for all PG seats. This could mean a possible repeat of the super-speciality saga in the post-graduate medical seats wherein states would lose their control on the state quota of 50%.

In response, Tamil Nadu Chief Minister MK Stalin has written to the Union Health Minister opposing the draft regulation, saying, “It is unfortunate that such draft regulations have been formulated without a proper understanding of the current predominant role of state governments in this domain. The Union government and the National Medical Commission need to appreciate the fact that it is only the states which have heavily invested their own resources to create most of the PG seats. Considering this, our state has consistently been opposed to such measures aimed at centralisation of states’ powers.”

He added, “We have been admitting the candidates who apply for admissions under the state quota PG seats in a transparent manner by following our reservation policy, without any issues so far. We also have a robust mechanism of incentivising medical service in rural, remote and difficult areas for in-service candidates, within the provisions of the existing regulations, and this has been the bedrock of our well-functioning public health system.”

With steady efforts to effectively undermine and eliminate states’ role in medical education, one is left to wonder what does a state’s rights in public health and higher education actually amount to, and why should the policy failures of the Union government towards regulating private medical colleges be the reason for the existence of eligibility examinations like NEET. There is a dire need for the courts to rely more on scientific evidence and involvement of experts concerning the sustenance of medical infrastructure and to objectively analyse the states’ role in public health, managing government medical colleges and the critical link it has with the integrity of state medical infrastructure.

This piece is a part of TNM’s reader-funded Cooperative Federalism Project. Indian residents can support the project here, and NRIs, please click here.

Dr Yazhini PM is a general practitioner based in Chennai. Jeyannathann Karunanithi is an independent policy analyst based in Chennai. The authors would like to thank Adv Kathir PM for his support with legal research.

Views expressed are the authors’ own.