SUKDMAR MUKHERJEE ETC. ETC. v. STATE OF WEST BENGAL AND ANR.

The Judgment of the Court was delivered by E SAWANT, J. Leave granted in all the Special Leave Petitions.

This group of appeals is directed against the decision of the High Court dated 31st January, 1992 dismissing the appellants' appeals against the verdict of the learned Single Judge in a group of writ petitions. Both the learned Single Judge and the Division Bench in appeal, by their F decisions in question have upheld the validity of the West Bengal State Health Service Act, 1990 (the 'Act') which was challenged mainly on three grounds, viz. 1

(a) that the State legislature did not have the competence to pass the G Act and hence the Act ·.was passed in violation of Article 252 of the Constitution.

(b) the Act imposes an unreasonable restriction on the fundamental right of the writ petitioners at practise guaranteed by Article 19(l)(g) of the Constitution. H

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A (c) the Act was arbitrary and unreasonably and, therefore, violative .(/j of Article 14 of the Constitution.

Hence these appeals.

2Copy pinpoint2. In order to appreciate the contentions of the appellants in this B Court, it is necessary to trace the history of the W_est Bengal Health Service and the events which have occurred till date which have a bearing on the said conlcntions.

Prior to 1958, the Health Service of the State of West Bengal con- C sisted of different cadres, viz., (i) West Bengal Higher Medical and Health Services (Gr.I); (ii) The W~st Bengal Higher Medical and Health Services (Gr. ll); (iii) The West Bengal Medical and Health Services including its Rural Branch; (iv) Gazetted Posts of Medical Officers not included in any of the above cadres; (v) The West Bengal Junior Medical and Health Services including its Rural Branch; \vi) Post of Licentiate Medical Of- D ficers not specifically included in the cadre of the West. Bengal Junior Medical and Health Services but carrying the time scale of pay of that Service. It does not appear that these different cadres were constituted by rules made under Article 309 of the Constitution.

It was in 1958 that the West Bengal Health Service (WBHS) was first constituted with a unified cadre of doctors under the West Bengal Health Service (Cadre, Pay and Allowance) Rules, 1958. These rules also do not appear to have been framed under:ArticJ>. 309 of the constitution. Upder these Rules, the doctors were cla5'ified into three broad categories, viz., (a) those who were engaged primarily in teaching along with the duties at the hospital to which the teaching institutions were attached, Cb) those engaged on the curative side and attached to various hospitals and medical centres throughout the State and who were not engaged in teaching, (c) those who \Vere primarily involved in administrative work.

G No doctor was allowed to practise privately, whatever the category to which he belonged. Thus, private practice for Government doctors belonging to the WBHS was totally prohibited.

However, in 1965, the State Government passed an order relaxing the rule prohibiting private practice and permitted private practice to H doctor occupying some of the posts in the WBHS subject to certain

S.MUKHERJEEv. STATEOFW.B. [SAWANT,J.] 357

conditions. Those who opted for private practice had to forego certain A- pecuniary benefits such as non-practising allowance. They were further to submit their option in a prescribed form declaring that they had no claim or right as such to private practice and were liable to be transferred to any post in which private practice was not permissible. This step of allowing

1 restrictive private practice was taken as a temporary and experimental measure. It was made clear that the position would be reviewed in the B future in the light of the experience gained. Pursuant to the relaxation of the rule prohibiting private practice, those doctors who opted for private practice gave signed declarations and undertakings that they would not thereby deem to have acquired any right to private practice or appointment only to posts where private practice was permitted and that they were liable c to be transferred to any post in the WBHS whether practising or non-prac- tising, if the exigencies of the service so required.

After an experience of about 25 years of the relaxation of the rule prohibiting private practice, the State Government came to the conclusion that the system was not operating satisfactorily, and in particular, the quality of medical education in the State had deteriorated considerably. The main reason for the deterioration in the standards of education was that the doctors who were holding teaching posts were indulging in private practice taking advantage of the relaxation of the Rules. As a result, they were found largely absent from the class-room and were also found neglecting their duties in the hospitals attached to the teaching institutions. With a view, therefore, to arrest the deteriorating standards of medical education in the State, and to improve the same, the State Government decided as a matter of policy to bifurcate the existing unified Service and to create a separate Service known as the West Bengal medical Education p Service (WBMES) for doctors exclusively engaged in teaching who would .. be debarred from private practice. This policy of the State Government was also in accord with the views expressed by the Medical Council of India from time to time and its resolution passed in 1973 which in terms stated that "the teaching staff of all departments of a medical college shall be whole-time and non-practicing". The policy was also largely in conformity G with the National Health Policy declared by the Government of India in 1983, which among other things, stated that it was desirable for the State Government to take steps to phase out the system of private practice by the medical personnel in Government service. The policy was, further, supported by a report of the Standing Committee of the West Bengal H

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A Legislative Assembly tin Health which attributed the fall in the standard of medical education in the State, among other things, to the fact that the medical teachers in the State were devoting considerable part of their working time to their private practice. As a result, the present Act viz., the West Bengal State Health Service Act, 1990 was passed, Some amendments were later effected to the Act. B Under the Act, two separate services were proposed to be con- r stituted, viz., West Bengal Modica! Education Service (WBMES) and West Bengal Health Service (WBHS). Section 3 of the Act gave power to the State Government to constitute the said two Services at different times. l • c Section 12 of the Act gave option to the doctors of the former WBHS, who were holding leaching posts, to opt for WBMES or WBHS. The Section also made it clear that if those holding teaching posts and administrative posts in the former WBHS did not exercise any option, they shall be deemed to have opted for WBHS and for its Public Health-cum-Ad- ministration Unit respectively. The WBHS was, however, not constituted at that time.

On and from 25.5.1990, WBMES was constituted under Section 3 of the Act. It gave 90 days' time to the doctors holding teaching posts to exercise option either to continue to hold the teaching posts or to join WBHS. It appears that former WBHS comprised about 6,600 doctors who were not assigned teaching work as against about 1400 doctors who were assigned the teaching work, and about 500 doctors who were detailed for ~ the public health-cum-administrative work.

Pursuant to the option given, about 1200 doctors exercised their options for WBMES. Out of the remaining 200 teacher-doctors, 5 teacher- doctors and the West Bengal ·Health Service Association filed the writ petitions in question which have given rise to the present appeals. I-

3Copy pinpoint3. It appears that the judgment of the Division Bench appealed against has been implemented insofar as the teacher-doctors who exercised their option in favour of WBMES are concerned. During the pendency of the present proceedings, the State Government on 3rd March, 1993 con- stituted the new WBHS under Section 3 of the Act, and also framed on the same date, the West Bengal Health Service Rules, 1993 (the 'Rules') and the West Bengal Health Service (Pay and Allowances. Superannuation H and Pension) Rules, 1993.

S. MUKHERJEEv. STATiiOFW.B. [SAWANT,.T.J 359

It may be mentioned here that the Special Leave Petitions from A \vhich the present appearls arise, were heard on an earlier occasion when neither the new West Bengal Health Service was constituted nor the Rules for the same were framed. It was to enable the respondent-State Govern- ment to constitute the new WBHS that the matter was adjourned then till 9th February, 1993. This was without prejudice to the contentions of both B sides in the Special Leave Petitions. When the matter reached hearing on 6th April, 1993, it was adjourned to enable the appellants to challenge the Rules. Accordingly, before us, the appeallants have advanced their argu- ments challenging the provosions both of the Act and the Rules.

4Copy pinpoint4. The contentions advanced on behalf of the appellants were as follows :

(1) The Act is repugnant to the Indian Medical Council Act, 1961, in so far as it prohibits private practice by doctors and therefore void by reason of Article 254 of the Constitution. D (2) Section 9 of the Act is violative of Article 19(1)(g) of the Constitution, since it prohibits those occupying posts in WBMES from carrying on private practice.

(3) Section 9 of the Act is violative of Article 14 of the Constitution E since by reason of Section 11 of the Act, a member of the former WBHS appointed to a post included in the cadre of new WBHS other than the post in the public health-cum-administration, shall continue in such post on the same terms and conditions as were in force im1ncdiately before the coming into force of the Act. So also, by virtue of Section 18, the holders of the contractual posts on the same terms and conditions of the Service. F The classification made between the members of the WBMES and those of the new WBHS and the holders of the contractual posts so far as the private practice is concerned, is not a reasonable classification and has no rational nexus with the object sought to be achieved by the Act. Even if the classifications between the members of WBMES and WBHS is valid G on the ground that the former are teachers whereas the latter are not, the classification made between the members of the WBMES and the holders of the contractual posts, is not valid inasmuch as both may be teachers.

\ 4) The Act is unconstitutional since it does not protect the appellants' status after the exercise of option to join WBHS. For the same H

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A reason Rule 7 of the Rules is also unconstitutional. (5) Rules 8 and 1.0 of the Rules are ultra vires Section 6(2) of the Act since having exercised the option for the WBHS, the said Rules entitle the Government to post the appellants even on the posts in WBHS which are non-practising. B (6) The decision with regard to the posting of the appellants is ma/a fide as is demonstrated by the fact that the said posting orders were issued even before the expiry of 30 days from the coming into force of the Rules, though such notice is required by Rule 5(ii) of the Rules.

c (7) The provision contained in Section 16 read with Rule 8 of the West Bengal Health Services (Pay & Allowances, Age of Superannuation and Pension) Rules, 1993 is discriminatory. The age of retirement for the members of WBH~ is 58 years whereas that of the members of the WBMES is 60 years with option for re- employment upto 65 years. D (8) Section 4(3) of the Act is arbitrary and, therefore, unconstitution- al since it confers an absolute power on the Government to transfer appellants to a post in public health-cum- administration which is non- practising.

E (9) Under Rule 7(1) of the Rules all the former teacher- doctors who opt for WBHS are either called Medical-Officers or Specialists. As a result, a 'senior professor with say 20 years of experience and one who has just qualified to become a Specialist would both be designated as Specialists and will be treated on par. Further the nature of duty, work, functioning and status would also be the same. This amounts to demotion to the F semors.

(10) The Act is discriminatory inasmuch as it does not apply to (i) Honorary and Emeritus Professors (ii) Ex-Management teachers (iii) Teachers belonging to the Dentistry. G (11) Section 6(2) makes a distinction between the doctors who held teaching posts and those who held non-teaching posts in institutions which are to be declared under the said provision as non-practising institutions. Those who held teaching posts on terms and conditions of practice are not to be allowed to hold such posts on terms and conditions of practice the moment the teaching institutions are declared as non-practising institu-

S.MUKHERJEEv.STATEOFW.B.[SAWANT,J.J 361

tions. However, those who held non-teaching posts in such institutions on conditions of practice are given an option of practice or non-practice without any change of post or designation. If they exercise option for non-practice, they are given six months' time from the date of exercising the option for winding up practice and if they do not exercise any option or exercise option for practice, they arc to be transferred to a post in any other hospital on terms and conditions of practice. On the other hand, teacher-doctors who opt for WBHS for the sake of practice are neither guaranteed by the Act nor by the Rules their right to practise inasmuch as by virtue of Rule 10(1) of the Rules they are liable to be transferred to a non-practising post and by virtue of Rule 10(2) their privilege to practise can be withdrawn at any point of time. Thus, it is contended, it is a C discrimination between the holders of teaching and non-teaching posts in the erstwhile institutions, violative of Article 14.

(12) There is also a discrimination between the teacher- doctors and other doctors inasmuch as no equivalence of posts and designations is guaranteed to the former when they opt for the WBHS as is guarateed ,to D the others, viz., (a) the doctors who were in the Public Health-cum-Ad- ministration of the former WBHS vide Rule 6(3); (b) former teacher-doc' tors who opt for WBMES; (c) non-teaching doctors. The former teacher-doctors opting for WBHS are merely called either Medical Of- ficers or Specialists. E

Rule 7(2) of the Rules is arbitrary and violative of Articles 14 and 19(1)(g) and is also ultra vires the Act inasmuch as it actually demotes persons like Professors, Assistant Professors or Readers who opt for WBHS since they would all come within the category of Specialists. Under the Rules they will all get a minimum basic pay of Rs.3700 since the special F .selection post carries the said basic minimum salary. Hence Rule 7(2) is clearly arbitrary.

(13) Rule JO 01 the Rules is ultra vires Section 6(2) of the Act inasmuch as the Rule takes away right to practise given by Rule 6(2). G (14) The option given to the doctors is illusory and is rendered nugatory inasmuch as a teacher-doctor who wants lo practise and, there- fore, opts for WBHS may be transferred to Public Health-cum-Administra- tion Unit. Under Section 4(3) of the Act, the posts in the said Unit are non-practising an<l once a doctor is transferred to the siad Unit, he can H

362 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A never be transferred back as there is no provision either under the Act or __ the Rules to transfer such doctor back to any other Unit. In other words, such doctor loses his right to practice for ever. This provision is likely to be utilised for \1ctimisalion.

(15) There is a contradiction between the 4th the 5th proviso of B Section 12 and the two provisos being self-contradictory cannot co-exist. Under the 4th proviso a person holding post in the former Public Health- cum-Administration who did not exercise any option shall be deemed to have exercised option for WBHS where practice is permissible. However, under the 5th proviso, a person holding the administrative post in the former WBHS who did not exercise any option is deemed to have exercised option for Public Health-cum-Administration Unit which is a non-practis- ing post vide Section 10 of the Act.

(16) Section 14(2A) makes no sense inasmuch as under the said Section, non-leaching doctors of the former WBHS who may not be required lo exercise any option under Section 12 shall be appointed to a teaching post in the WBMES even if they do nol have requisite teaching qualifications. Even factually there are 6100 such doctors whereas the teaching posts do not exceed 1400 in number. The provision is, therefore, self-defeating. E (17) Since improvement in the standard of teaching and patient-care is the object for making the WBMES as a non-practising service, the grant of right to practise to 6100 doctors belonging to WBHS defeats the said object. There is no evidence of the deterioration in the standards of teaching in the medical institutes of the State inasmuch as in the All India F Medical Entrance Test conducted by the Medical Council of India, about 25 to 30% of the candidates belon1,,jng to the State were selected duripg the last 3 years.

(18) The constitution of WBHS is bad also on account of the fact G that the members of the said Service have no scope for promotion as they will be stagnated only as Specialists.

With the introduction of the unified cadre of WBHS in 1958, the 11 designations Civil Surgeon Assistant Surgeon!!, Sub-Assistant Surgeon 11 1 \ 11 11

etc. were abolished and all officers of the cadre were called Medical H Officers and were designated according to the post held by them in their

S.MUKHERJEEv. STATEOFW.B. [SAWANT,J.] 363

respective cadre. The hierarchy of the integrated cadre consisted of .3 A grades: (i) Basic; (ii) Selection; (iii) Special Selection in the ascending order. The doctor appointed in the basic grade was called Medical Officer. The next promotional post to the Medical Officer was of selection grade, and on specialisation in a particular subject and acquisition of prescribed qualifications and experience, the Medical Officer was further promoted as Specialist and became entitled to additional pay of the Specialist.

A doctor became eligible to promotion in the teaching hierarchy only after acquiring post-graduate qualification in the concerned discipline. After working for 3 years as Basic Teacher, he became eligible for promo- tion to the post of a Lecturer and after 5 years of total teaching experience out of which at least 2 years as the Lecturer, the Lecturer was promoted to the post of an Assistant Professor. After 7 years of total teaching experience out of which 2 years had to be as an Assistant Professor, the Assistant Professor was elevated as a Reader and the Reader became eligible for promotion to the post of the Associate Professor after 9 years of total teaching experience out of which 2 years' experience had to be as a Reader. The next post of promotion was that of the Professor which required 11 years of total teaching experience out of which 2 years' experience had to be as an Associate Professor. The next promotions were that of the Principal and Director of Medical Education. The Specialist Medical Officers possessing recognised post-graduate qualifications in par- E ticular subjects, even though they had no past teaching experience, were also considered for appointment as Lecturers in the concerned disciplines provided they had served in the District, Sub-Division or any other State hospital as Specialist for at least 4 years. F Under the present Rules no equivalent posts for WBHS have been created. All members of WBHS (excluding those appointed to the posts in Public Health-cum-Administration Unit) are sought to be designated under Rule 7(1.) of the Rules either as Medical Officers or as Specialists.

(19) Under Section 12 of the Act while option has been provided to G the doctors who had held teaching posts, no such option has been provided to those who did not hold the· teaching post although they have either acquired the requisite post-graduate qualifications and had undertaken hasic training and were qualified to he appointed as teachers and in particular to those who had also bee~ empanelled for being promoted to H

364 SUPREME COURT REPORTS [1993] SUPP. J S.C.R.

A ihe teaching hierarchy.

Whereas 80% of the members in Service were denied the right to join WBMES, a large number of doctors appointed to the post' of "Basic Teachers" in non-clinical discipline and who do not possess the requisitt eligibility qualification, viz., post-graduate degree in the relevant subject, B have been provided with option lo join WBMES.

(20) The seniority of the members of WBMES has not been protected due to the introduction of "Pay to Post" rule and by the abolition of "Pay to Person" rule under the former WBHS, Under the former WBHS, C the seniority of the doctor was protected due to the fact that the pay and seniority· were attached to person wherever he moved and not to the post he happened to occupy at any period of time during his service. As a result of the int~oduction of the new rule in the cadre of WBMES, the senior doctors who opted for the WBMES were seriously prejudiced inasmuch as D ·1hey were compelled to sacrifice their seniority and pay-scales earned through long years of service. The senior members of the former WBHS I" drawing higher pay-scales but possessing lower teaching posts are being placed in junior posts with lesser pay than that of their junior in ~ervice who were promoted to higher posts earlier but were drawing lesser pay in the former WBHS. The junior doctors have all of a sudden become eligible to be placed in the higher posts with higher pay than lhat of their seniors.

(21) The non-constitution of the WBHS prior to calling upon the doctors who held teaching posts to exercise their irrevocable one-time option without having any opportunity to weigh the pros and cons of both the services, was ma/a fide. The ommission to constitute WBHS prior to requiring the teacher-doctors to exercise their option has led to the follow- ing result: (i) A large number of senior doctors by opting for the WBMES are now col\'pelled to sacrifice their seniority and pay-scales earned through long years of service and junior doctors have all of a sudden become senior to them. No protection of pay and seniority has been provided for in the Act. (ii) The members of the former WBHS who could .not or had not exercised option for WBMES arc being posted in the junior posts which they had held at the threshold of their service-career on in the non-existent posts. (iii) Some doctors where not able to exercise their option because the promotions due to them to special selection grade and higher academic rank such as Professor, prior.to the coming into force of I

S. MUKHERJEEv. STATEOFW.B. [SAWANT,J.] 36.'

the Act were not given lo them and they had sought clarifications from the A Government whether they would be given their said ranks in the WBMES. But no clarifications were forthcoming. They arc cntilled tu a fresh oppor- tunity for exercising the option to choose between WBMES and WBHS. (iv) In any case, all the doctors affected by the orders of transfer should be deemed lo have been denied the opportunity lo exercise their option, since they were asked lo exercise the option before WBHS was constituted. B All the said doctors should be given a fresh opportunity of exercising their option now that the WBHS has been constituted. (v) The seniority position and status of the members of the WBHS should be maintained. (vi) Those who held teaching posts in the former WBHS have been transferred to such non-teaching hospitals where they are placed lo work under the c control of their junior officers appointed as Superintendents of the said hospitals. (vii) Whereas under new WBHS, the hierarchy is created for Public Health~cun1-adrninistration Unit to protect seniority and status, no such hierarchy is created for the other members of WBHS. (viii) There is no provision for pro1notional opporlunity in the ne'v WBHS as there \Vas D in the former WBHS. (IX) By summary orders of transfers, the members of former Health Service are being sought to be transferred and reap- pointed to either feeder posts or non-existent posts unde1- threats and humiliation. (x) A number of doctors appointed in the cadre of WBMES though senior were transferred lo posts lower than of their juniors. (xi) Although the Act provides that persons not exercising option in the cadre of WBMES shall be deemed to have exercised option for the cadre of WBHS, some doctors who did not exercise option have been absorbed in the posts of WBMES by notification dated 6.9.1992. (xii) Although the Act specifically provides that no appointment in the cadre of WBMES shall be made except through Public Service Commission by number of orders, the respondents have appointed persons in the cadre of WBMES on their own and Specialist doctors of the WBHS have been transferred to District or Sub-Divisional hospitals and centres which do not have the required in- frastructure to utilise their expertise.

5Copy pinpoint5. As regards the first contention viz., that the Act is repugnant to G Section 27 of the Indian Medical Council Act, 1956, the argument is that the Central Act is relatable to Entry 26 of the Concurrent List which reads as "legal, medical and other professions". Insofar as the Act relates to the rights of the Medical Officers to practise, it is also relatable to the same Entry. Section 27 of the Indian Medical Council Act provides that every H

366 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A person who is enrolled as a medical practitioner on the. Indian Medical Register shall be entitled, according to his qualifications, to practise in any part of this country, and to recover in due course of law in respect of such practice, any expenses, charges in respect of medicaments or other applian- ces or to any fees to which he may be entitled. Since the Act imposes on the members of the WBMES as well as some members of the WBHS B restriction on their right to practise, it is repugnant to the Central Act and, therefore, void under Article 254 (1) and (2) of the Constitution.

This argument ignores the basic objects of the two legislations which are distance. The object of the Central act is (a) to give representation to C licentiate members of the medical profession, (b) to provide for the registration of the names of citizens of India who have obtained foreign medical qualifications, ( c) to provide for the temporary recognition of medical qualifications granted by medical institutions in the countries outside India, ( d) to provide for the formation of the committee of post- D graduate medical education of the purpose of assisting the Medical Council of India to prescribe standards of post-graduate medical education for the guidance of universities and to advise universities in the matter of securing uniform standards for post-graduate medical education, and (e) to provide for the maintenance of an All India Register by the Medical Council of India. E It is in this context that provisions of Section 27 have been enacted, prescribing privileges of the persons who are enrolled in the Indian medical Register. That does not mean that those who give up the said prhileges voluntarily, can continue to enjoy the same under Section 27 of the Act. IF Those who are enrolled on the Indian Medical Register are not compelled to seek service either private or public. However, once they seek employ- ment, they have to abide by the terms and conditions of the employment. Section 27 does not prevent persons enrolled in the Indian Medical Register from seeking employment on such terms and conditions as they may choose to secure it nor does it prohibit agreements of service which G entail giving up of the privileges mentioned in it.

Jn view of this position in law, it is really not necessary to go into the question whether both the Central and the present State Act occupy the same field of legislation or not. The same may, however,be dealt with here. H The object of the Act is to create different Health Services and to regulate

S. MUKHERJEE v. STATE OFW.B. [SAWANT,.!.] 367

the conditions of service of the members of the said services with a view to improve their functioning, the utility. The Act does not regulate the rights and privileges of the 1nembcrs of the medical prnfessiun in general. The Act has obviously been enacted under entry 41 of the State List which empowers the State to constitute Stale Public Services and read with Article 309 of the Constitution, vests power in the State Government lo lay down conditions of service of the members of the Services so constituted. Hence the subject of the two legislations, and the area occupied by then1 are different. That the Act incidentally restricts the privileges of those who join the services c. cated under it does not make it a legislation laying down or governing the privileges of all those who are enrolled on the Indian Medical Register. There is thus no conflict bet ween the provisions of the c two and hence there is no repugnancy between the two under Article 254 of the Constitution.

The reliance placed in this conncction 1 on H.S. Srinivasa Raghavachar etc. etc. v. State of Kama/aka and others, AIR (1987) SC 1518, D is equally misplaced. In that case, sob-section (8) of Section 48 of the Karnataka Land Reforms Act, 1962 which prohibited legal practitioners from appearing in the proceedings before the Tribunals was held to be unconstitutional being repugnant lo Section 30 of the Advocates Act, 1961, and to Section 14 of the India Bar Coun'cil Act. The legal practitioners appearing in the proceedings before the Tribunals under the Karnataka E Land Reforms Act were not members of any service- private of public - and had no given up their right to practise in lieu of accepting the benefits of services. That obviously is not the case before us. The doctors in question have voluntarily become members of the State Health Service and have subjected themselves to its terms and conditions, one of the terms being that they will have no right to practise privately. This being the case, it is difficult to see how the decision' in question is relevant to the facts of the prese~t ·case.

6Copy pinpoint6. As regards the second contention, viz., that Section 9 of the Act is violative of Article 19 (1) (g) of the Constitution since it prohibits the members of the WBMES from practising privately, the contention has only to be stated to be rejected. Ir. the first instance, the Act does not prohibit private practice by medical practitioner as such. The Act is not enacted to regulate practice of the medical practitioners in general. It is only thoSe medical practitioners who choose to become n1embcrs of the H

368 SUPREME COURT REPORTS [1993] SUPP. l S.C.R.

A Service constituted under the Act including the WBMES who a.re prohibited from practising privately. As has been pointed out earlier, since 1958 to 1965 no member of the former WBHS - whether he held the teaching or non-leaching post, was allowed to practise privately. It was only in 1965, by a memorandum dated 1.4.1965,' that temporarily and as and by way of an experiment the relaxation was made and the members of the former WBHS were granted the privilege to practise subject to certain terms and conditions. It was then made clear that the relaxation shall not confer upon the Medical Officers any claim for appointment to any of the posts on practising terms. While making the said relaxation, it was also made clear that the position would be reviewed in future in the light of the experience gained. What is more, each member of the Service who opted for private practice had to give a signed declaration that he shall not acquire any claim for appointment only to practising post in future and that he shall continue to be liable to be transferred to any post in the cadre, practising or non-practising, in the exigencies of public service. This posi- D tion continued till the end of 1989, when on the basis of the experience gained, the State Government came to the conclusion that the system was not working satisfactorily and in particular the quality of the medical education in the State has deteriorated considerably. That led to the present Act and the Rules.

E What is further of importance to note is that the right to private practice is not given to the Government Medical Officers in most of the places since it conflicts with the duties of such officers as Government servants. Article 19(1)(g) confers on citizens right to practise any profes- sion, or to carry on any occupation, trade or business for their individual p benefit. It does not create an obligation to do so. It is for the citizen to exercise or not his said right. Further, the Article does not 6blige a citizen to practise any particular occupation, business of trade. He is free to follow any occupation and on such terms and conditions as he chooses. It does not prevent him from accepting its discipline including such rights and obligations as flow from it. As in the present case, those who join the G Government service with the full knowledge that they will have no right to practise the profession privately, agree to give up their right as private practitioners in consideration of the security, status and privilege as a Government servant. The Government service is also an occupation and those who choose it cannot complain of its discipline or insist upon H pursuing it on their terms. Nobody compels them to join it if they want to

S. MUKHERJEEv. STATE OF W.B. [SAWANT. J.]

practise their profession privately. They are free to leave it at any time. The A restriction imposed by Section 9 is not on the freedom to practise the medical profession but on such practice while one continues to be the member of the State Service. Article 19 (1) (g) does not give a citizen a right to carry on any profec.sion irrespective of the fact that he has volun- tarily accepted restrictions on his said right in consideration of other rights, B as in the present case. In the circun1stances, it is not even necessary for the State to invoke the provisions of clause (6) of Article 19(1) (g) which permits the State to impose reasonable restrictions on the exercise of the right in the interest of the general public. The present Act constitutes health services for the State. The State has a right to recruit officers to such services on such terms and conditions as it deems desirable to make the c services beneficial to the members of the public. The restriction imposed on the members of such service that they shall not be entitled to private practice so long as they continue in the Stale Service is a reasonable restriction on the officers of the State being in the interest of the general public, as explained earlier. Those who join the Service arc bound to abide by it, being a condition of service voluntarily sought by them.

What is more, Section 9(2) also makes provision to grant non- practising allowance to the members of the WBMES which is obviously in lieu of the right to private practice. Tbis allowance is of;course in addition to the salary, other allowances and perks and privileges including a higher superannuation age of 60 years and re-employment upto the age of 65 years. It is, therefore, difficult to understand the contention that Section 9 contravenes the fundamental right of the members of WBMES to practise their profession privately. F The contention further that the restriction is unreasonable because the members of tbe other service, viz., WBHS (excluding those attached to the Public Health-cum-Administration Unit) have been extended the right to practise is also unsustainable. In the first instance it is not correct to say that the members of the WBHS have been given a right to practise. On t.hc other hand, the provisions of the Act as well as the Rules make it clear G tbat what is extended to them is only a privilege to practise which may be withdrawn at any time. Further even this privilege is not extended to all posts and the members of the Service arc transferable from the posts with the privilege to practise to the posts without such privilege. Secondly, the service conditions in the two Service differ. There is a hierarchy of posts H

170 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A in the WBMES, higher superannuation age with a right lo re-employment, non-practising allowance etc. with advantages are not available to the members of the WBHS. Lastly, the purpose of the two services is different. While the WBMES is constituted for imparting medical education and incidentally to take health-care of the patients in the hospitals attached to the teaching institutions, the WBHS is constituted to make available the service in the Government hospitals to the members of the public. Accord- ing to the present review of the situation and the considered opinion expressed by the expert bodies, private practice does interfere with the work of the teacher-doctors both in the class-room as well as in the hospital. There is, therefore, a need to stop the same in the interests of both the improvement of the standards of the medical education as well as the betterment of the health-care service in the leaching hospitals. The ban on private practice will make available to the teacher- doctors the time required for reading and research which is absolutely essential for their main profession as teachers. For the members of the WBHS, the time for reading an<l research is not essential. Hence, there is nothing unreasonable in prohibiting practice for the members of the WBMES while not prohibit- ing it for the members of the WBHS.

7Copy pinpoint7. The third contention which seeks to attack the provisions of Section 9 on the ground ,'.tat it is violative of Article 14 of the Constitution E is advanced thus. Under Section 11 of the Act, a member of the former WBHS who is appointed to a post in the new WBHS, other than the post in the Public Health-cum-Administration Unit, shall continue in such post on the same terms and conditions as were in force immediately before th~ coming into force of the Act. So also, by virtue of Section 18, the holder of the contractual posts in the former WBHS, will continue to hold such posts on the san1e terms and conditions of service. The important term and condition of service of both is the right to practise privately. Hence the classification made between the members of the WBMES and those of the new WBHS and the contractual holders of posts so far as private practice is concerned, is not a reasonable classification and has no rational nexus with the object sought to be achieved by the Act, viz., improvement of the quality of teaching as well as of the hospital care. The non-teaching doctors responsible for hospital care are also also expected to be available on duty for 24 hours of the day. However they are permitted lo carry on private practice. It is further urged that even if the classification between the members of WBMES and WBHS is valid on the ground that the former

S. MUKHERJEE v. STATEOFW.B. [SAWANT,J.j 371

are teacher ~vhcrca~ the latter are not, the classification maJc bct\vecn the member of WBMES and the holders of the contractual posts ;,, not valid inasmuch as both may be teachers.

As pointed out earlier, the purposes of the l\VO services and the duties and functions of their memhcrs are different. Hence. their scrvicl.'. conditions also differ. The two services, therefore, cannot be compared. B The ban on private practice is intimately cooncctcd with the nature of the duties the member> of the WBMES are called upon to discharge. It is unnecessary to emphasise that thl'. teacher-doctors if they arc to be lrUL'. their professiol}, must undertake studies and research and be uptodatc in their subjects. Medicine is one of the fast growing faculties and is n1aking advances at an ever increasing pace. It is not difficult to appreciate that c those who have their private practice to look after, find no time for studies and research and thus to be uplodate in their subject. That was also the experience of the Slate Government who found that the teacher-doctor \vere concentrating on their private practice to the neglect of their duties as teachers. [t is fur this reason that it \Vas felt necessary to constitute a D separate cadre of tcacher~doclors with separate service condition~. It is not, therefore, proper to compare the duties of the non-teacher-doctors who are members of the WBHS with those of the member of the WBMES. It is true that the members of the WBHS are also supposed to be available for work 24 hours of the day. It is, however, common knowledge that the doctors have their duty shifts, and their services are requisitioned outside their shift-hours only if they are found necessary. When their services arc so requisitioned, they are bound to and do in fact attend to the call of duty whether they hold practising or non-practising posts. Secondly, since they do not have the duty of teaching, they are not required to devote their time to study and research as the teacher-doctors arc~ although every Lloctor whether teacher or non-teacher, is expected to rcn1ain reasonab1y abreast of the general developments in medical science. The non-teacher doctor \Vhen he practices privately outside his duty hours only carries on the same kind of work which he does during his duty hours. He does not have to change the nature or his \VOrk. Hence \\!hen the privilege of practising privately is extended to him, when it need nol be withheld from him, the work in the Government hospitals need not necessarily suffer. However, the Government has, under Ruic 10(2) of the Rules, taken care, as slated above, to reserve to itself the po\ver to withdra\v even that privilege lf the Government finds that on account of the facility given to practise privately, the work in the hospitals is affected. The privilege further is extended only H

372 SUPREME COURT REPORTS 11993] SUPP. 1 S.C.R.

A to the select posts and not to all the posts in the WBHS. That also shows that the privilege is granted either where it is not likely to interfere with ' the regular work or where the medical service is not available to the people otherwise outside the duty-hours in the hospital.

As regards the holders of the contractual posts, again there cannot B be any comparison between them and the members of WBMES. The terms and conditions on which their services are engaged are materially different from the terms and conditions of service of the members of the WBMES. Section 18 of the Act saves such contracts which are entered into prior to the coming into force of the Act. As has been pointed out by the State C Government, the holders of such contractual posts are prrJfessors, assistant professors, surgeon or physicians in the teaching institutions. They are engaged on contractual basis because the Government finds that otherwise their services which are essential for running the teaching institutions cannot be procured, and for want of their services, the teaching institutions D would suffer. The persons so appointed are limited in number and they will continue to serve till the expiry of the tenure or their contracts. There cannot, therefore, be any comparison between the members of WBMES which is a regular service constituted by the State and the holders of the contractual posts which are not governed by any service rules but by the terms of their contracts and who are engaged for specific purposes. Section E 18 of the Act, in terms, states that the provisions of the Act shall not apply to such persons. There is, therefore, no merit in the contention that Section 9 of the Act is discriminatory and violative of the provisions of Article 14 of the Constitution because, it makes distinction between the members of the WBMES and the members of the WBHS and those holding the contractual posts. F

8Copy pinpoint8. Underlying the fourth contention is the premise that the Act has been enacted to create the posts of ncquivalent 11 status in the two services viz., WBMES and WBHS and the privilege to practise privately attached to some posts in WBHS is right. Both the premises are incorrect. The G constitution of the WBMES is obviously of a different genre than that of the WBHS. The hierarchy of the posts in the teaching service is bound to be different from that in the health service. It is unreasonable to expect that the designations, hierarchy and the qualifications for the posts would be the same in the two Services. This being the case, it is unprofitable to H search for equivalence in posts in the two services. Since those holding

S.MUKHERJEEv. STATEOFW.B. [SAWANT,J.] 373

teaching posts are given option either to join WBMES or WBHS, on their A- opting for the WBHS, they cannot complain if they are posted, according to the qualifications as Medical Officers or Specialists. Since these are the only posts available there, the Govermnent cannot be expected to create as many hierarchical posts in the new WBHS as there were in the teaching faculty in the former WBHS. B Rule 7 of the Rules makes it abundantly clear that members of the WBHS (excluding those appointed to the posts in the Public Health-cum- Administrative Unit) shall be either designated as Medical Officers or declared as Specialists. Sub-rule (2) of rule 7 prescribes qualifications for the posts of the Medical Officer and Specialists. Sub-rule (3) further states C that the Specialists will not be posted at institutions mentioned in items (a), (b) and (t) of Schedule II of the rules which are rural primary health centres and block primary health centres, rural hospitals and medical colleges and other teaching institutions declared to be non-practising in- stitutions. Thus Rule 7 (3) in terms protects the Specialist' interests by providing that they will be posted only at institutions mentioned in (c), (d) D and (c) which are sub- divisional and district hospitals, specialised hospitals in T .B., leprosy and mental and infectious deceases (excluding .those hospi- tals declared as non-practising institutes) and all -State general hospitals· and State hospitals situated in the districts and.at_<:;alcutta. Hence, there is no discriminatory treatment being accorded to the 1former teaching E doctors on their exercising option for the WBHS on account of the fact that the so-called equivalent posts are not created in the WBHS to accom- modate them.

9Copy pinpoint9. The assumption underlying the fifth contention is that the person holding a non-teaching post in the teaching institution in the former WBHS F who opts for a post in the new WBHS where private practice is permitted, cannot be posted to a post where private practice is not permitted. That assumption itself is incorrect since the provisions of Section 6 (2) are subject to the provisions of Section 4(3), 4(4), 5 and 11 of the Act. Under Section 4(1), except the basic level teachers, no other member of the WBMES can be transferred to WBHS. Under Section 4(2), no person G appointed to WBHS can be transferred to WBMES. Under Section 4(3), any person appointed to a post in WBHS (other than the post in the cadre ... of the public Health-cum-Administrative Unit) may be transferred to a post in the Public Health-cum-Administrative Unit. It may be mentioned here that the posts in the Public Health-cum-Administrative Unit are H

374 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A non-pract1cmg. Under Section 4(4), the State Government has the right lo transfer any person from one post to another subject to the provisions of Sections 4(1) and 4(2). In other words, the State Government has the right to transfer a person form any post to any other post, so long as there is no transfer of a member of WBMES (except the teacher holding the basic B level post) to WBHS, and of a member holding post in the WBHS to the WBMES. Section 5 further empowers the State Government to appoint any person to hold two or more separate posts on such terms and conditions as may be prescribed. Section 11 makes it clear that any person of the former WBHS who is now appointed to a post in the new WBHS (other than to a post in the Public Health-cum-Administration Unit) shall con- C tinue in such po.st on such terms and conditions as were in force immedi- ately before the coming into force of the Act. On the day the Act came into force, the new WBHS was not formed and the Rules governing the new WBHS were not in existence. On the formation of the new WBHS and the formulation of the Rules for the same on 3rd March, 1993, the D Rules governing the former WBHS stood repealed and the new Rules vi7., the Rules under discussion, came into force, and have become applicable to the new WBHS by virtue of Section 3 of the Act. Hence, Rules 8 and JO of the Rules have taken the place of the Rules which were governing the posts in the WBHS on the date the Act came into fotre. The earlier rules had also not vested the posts in the WBHS with any right or permanent privilege of private practice. The privilege was liable to be withdrawn at any time. The incumbents of the post were also transferable from the practising to the non-practising posts. In view of the said position, there is no conflict between Section 6(2) and Rules 8 and 10 o( the Rules. It is true that the last proviso to Section 6(2) states that persotls holding non-teaching posts on terms and conditions of practice in the insti.tutions which are declared non-practising under the. Act have a right to opt..f9r practice or non-practice without any change of post or designation ana when any such persons do not exercise option or exercise option for practice, they are to be transferred to a post in any other hospital on terms and conditions of practice. Since however, as explained above, they had even earlier i.e., prior to the coming into force of t4e Act, held the practising posts in question subject to the Government's right to transfer them to a non-practicing post and since further the facility to practise was not a right but only a privilege which could be withdrawn by the govern· ment any time, the provisions of section 6(2) read also in the light of the H

S. MUKHERJEE v. STATE OF W.B. [SAWANT, J .] 375

· other provisions of the Act, have to be construed lo mean that those who do not exercise any option or opt for practice, are to be accommodated as far as possible in the posts which carry the privilege of practice. This position obtainable under the various provisions of the Act referred to above, is crystallised in Rules 8 and 10. Rule 8 states that those members of the WBHS who are posted in the health centres, rural hospitals and teaching hospital mentioned in items (a), (b) and(!) of schedule II of the Rules, shall not engage in private practice. By, implication, the members of the WBHS who may be holding posts with the privilege of practice arc liable to be transferred to the said non-practising posts. Rule 10(1) further makes clear what is otherwise ii\iplicit in Rule 8, viz., that those members of the WBHS who hold posts in institutions mentioned in items (c), (d) c and (e) of Schedule II of the Rules which are practising posts, although they opt for the same posts, will not have any right bl\t only a privilege to engage in private practice and that they may be transferred to any post in the WBHS where private practice is not permitted including the posts in institutions in item (a), (b) and(!) of the said Schedule. Rule 10(2) further makes it clear that even the privilege of private practice carried with the post including the posts in the institutions mentioned in item (c), (d) and ( e) of the said Schedule, may be withdrawn by the State Government at any time if it is considered necessary or .desirable in the public interest. The contention is thus a product of the misconception firstly that every post belonging to the WBHS carries a right or a permanent privilege to practise and that the members of the WBHS are not transferable from the practicing to the non-practising posts in the said Service. Hence, the same has to be rejected.

10Copy pinpoint10. The sixth contention is advanced against the posting orders dated F 15.3.1993 of the appellants which were issued even before the expiry of 30 days from the coming into force of the Rules which is in contravention of Rules 5(ii) of the Rules. Apart from the fact that the contention is directed against the legality of the transfer orders which have nothing to do with the vires of the Act or the Rules, thcr c is nothing to show that the appellants have suffered any prejudice on account of the said orders. The fact remains G that the appellants did not exercise their option even within 30 days prior to the coming into force of the Act and for that matter al any time thereafter. If they had in fact exercised their option to join the WBMES during the period given to them under Rule 5(ii), the transfer orders would have been rendered nugatory. Since they had not exercised their option, H

376 SUPREME COURT REPORTS [1993] SUPP. l S.C.R.

A under the 5th proviso to Section 12, they are deemed to have exercised option for WBHS. None prevented them from exercising their option for WBMES during the stipulated period and had they done so they could no.t have been transferred to WBHS. It is difficult to accept the contention th~t merely because the transfer orders were-issued before the expiry of the B stipulated period, the transfer order were a ma/a fide exercise of power. They could not have been given effect to, before the expiry of the stipulated period, and as stated earlier, the right of the appellants to exercise their option within the stipulated period was not taken away by the said orders. The contention has, therefore, to be rejected.

11Copy pinpoint11. The seventh contention that the enhanced age of superannuation prescribed for the members of the WBMES under Section 16 of the Act is discriminatory is difficult to under stand. The two services being distinct and their duties and functions being different, different service conditions can be prescribed for the members of. the two services. The WBMES is constituted separately to improve the quality of the medical education in the State. Ordinarily, the members of the teaching staff in all the disciplines -retire at the age of 60 years and that is for a valid reason. In view of the knowledge acquired and the research made in the particular subject in which the teachers are specialised in a discipline like the medicine, there is nothing wrong, if the State Government should desire to utilise the services of the teacher-doctors for a longer period, in the public interest. That is why the superannuation age of the members of the WBMES is fixed at 60 years as against the superannuation age of 58 years fixed for the .• members of the WBHS including for those posted in the Public Health- cum-Administration Unit. It is with the same intention that a provision had also been made under Section 16, for re-employment of the members of the WBMES upto 65 years of after superannuation. There is, therefore, no merit in the contention.

12Copy pinpoint12. The eighth contention need not detain us long in view of what is explained above. All posts in the WBHS do not carry the privilege of private practice. There are some posts which do not carry such privilege. Further, even those posts which carry the privilege of private practice, do so only temporarily since the State Government has reserved to itself the power to withdraw the said privilege at any time. The Act and the Rules also make it clear that the members of the WBHS are liable to be transferred from the practising posts to the non-practising posts and vice I

S.MUKHERJEEv. STATEOFW.B. [SAWANT,J.) 377

versa depending upon the exigencies of the service. The Public Health-cum A Administration Unit of the WBHS has only non-practising posts. There is, therefore, no merit in the contention that a person who opts for the WBHS should not be transferred to the post in Public Health-cum-Administration Unit because it is a non-practising post. Since there is no right of private practice attached to ·any post, the contention that under Section 4(3) a person opting for the WBHS is liable to be transferred to a post in the B Public Health-cum-Administration Unit and that, therefore, the said provision is arbitrary cannot be accepted. The transfers are a matter of executive policy and are made as directed by the exigencies of the service. Section 4(3) incorporates no more than the said policy.

The ninth contention is obviously based on a misconception of the c structure of the WBHS. Under Rule 7(1), the WBHS (excluding the Public Health-cum-Administration Unit) consists of members who are either Medical Officers or Specialists. There are no other Posts or designations. Rule 7(2) states that a member of the WBHS who holds post-graduate degree and has al least 5 years' experience as a Medical Officer or a D member of the said Service who holds a diploma but has at least 8 years' experience as a Medical Officer may be declared as Specialist. It further says that the diploma holders with 8 years' experience as Medical Officers may be declared as Specialists only in the dearth disciplines, viz., Radiol- ogy, Anestheology, Opthamalogy, Paediatric, Dermatalogy, Verenial dis- eases, '·.Psychiatry and OtorihnolaringoJogy. Rule 7(3) then states that no E Specialist shall be posted in any of the Health Centres, Rural Hospitals or Teaching Hospital mentioned in items (a), (b) and (f) of Schednle II of the Rules. The rule lays down qualifications to become a Specialist and all those who satisfy the said qu,alifications may be declared as Specialists. It is difficult to understand as to how a grievance can be made against declaring all those who have put in qualifying period of service as Specialists. This is bound to happen in any Service and seniors cannot make any grievancl: that the juniors who qualify are also called specialists along with them. Underlying this contention is a grievance that there are no more hierarchies in the WBHS. The fact that both juniors and seniors arc declared as Specialists does not in any way lessen the importance of the senior Specialists. The mere number of years in servic.e does not give anyone a higher status in Service. The status depe11ds upon the quality of the. person's work. It may happen that the qualify of a junior's work may be i)etter than that of hi.§,§enior. The contention must, therefore, fail. H