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

378 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A The tenth contention is equally frivolous. The contention is that the Act is discriminatory because it does not apply to (i) Honorary and Emiretus Professors: (ii) Ex-management Teachers and (iii) Teachers belonging to the Dentistry. None of them belonged to the former WBHS. The "Emiretus Professors" as the expression itself denotes, are eminent teacher-doctors who have retired from the Health Service. They are paid B for their service a token conveyance allowance of about Rs. 250 per month. They are, therefore, a class by themselves and cannot be compared with the regular members of the WBMES or the WBHS. The Dental Doctors or Surgeons belong to a separate service known as the West Bengal Dental Service and their service conditiqns are determined by the rules of the said C Service. They are also, therefore, a distinct class. As regards the Ex- management teachers who are about 10 to 15 in numbers at present, their service conditions as explained by the respondent-state Government are governed by the provisions of Talking-over of the Management Act under which the management of some private institutions was taken over by the D State Government. Thus ~11 the three categories belong to separate clas.ses which have nothing in common "'ith either 0f the t\VO services, viz., the WBMES or the WBHS. It can, therefore,·be hardly contended that the Act is discriminatory because it does not apply to the said three classes.

The eleventh contention has been broadly dealt with earlier. Section E 6(2) does make a distinction between those who held teaching posts and those who held non-teaching posts in the teaching institutions and the hospitals attached to them where formerly private practice was permitted. The Section states that all those who held posts in such institutions on the condition of practice will cease to hold such posts on such condition after the institutions arc declared as non-practising ones. To those who held non-teaching posts in such institutions with the condition of practice, it gives an option for posts with practice or without practice. In either of the cases, they are not to suffer a change of their posts or designation if they exercise there option within the stipulated time. It also says that if such a person docs not exercise any option or exercises option for practice, he shall be transferred to a post in any other hospital on terms and conditions of practice. However, neither the post or designation nor the right to practise of those who held teaching posts in such institutions is protected. Hence the Section is not discriminatory. The contention misses the purpose of the provisos to Section 6(2). The said provisos deal with only those who held non-teaching posts in the institutions in question on terms of practice

S. MUKHERJEE v. STAIB OFW.B. [SAWANT, J.] 379

and who have to be transferred from there to the other institutions on exercise by them of their option. lt is sections 12 and l3 which deal with the appointment of the teacher-doctors to the non-teaching institution on their exercising or not exercising their option. What is further to be noted is that the non-teaching posts continue in the institutions concerned but without the right to practise. It was, therefore, necessary to give the option in question to the holder of the non-teaching posts between the practising and non-practising posts, since the only alternative before them, after the institutions were declared non-practising, was either to continue in the said institutions or move out to other posts in the WBHS itself which consisted of both practising and non-practising posts. There was no option for them to join the WBMES as was open to those who held the teaching posts. c Their designations whether working in the Administration Unit or other- wise needed no change for they were being transferred from non-teaching posts io non-teaching posts. Even those who held teaching posts did not suffer any change in their posts or designations since they continued to hold their posts in the new dispensation subject to the only condition that they would cease to practise from the date the institutions were declared as non-practising. However, if they choose to opt for posts in the ·cadre of the WBHS they could do so, and could be posted either to the practising posts or to the non- practising posts according to the exigencies of the service. So also those who held non-teaching posts could be posted to the posts in the WBHS which are practising as well as non-practising since their posting is also subject to the other provisions of the Act. Since 6(2) does not confer on those who held non- teaching posts with the condition of practice a right to practise or a right to a practising post. Consistent with the scheme of the Act, It merely provides that the persons who held non- teaching posts with the condition of practise earlier may be transferred to F a practising post as far as possible since they are not given an option to join the WBMES. That, however, docs not mean that the said Section confers on the holders of the non- teaching post a right to practise or a right to a practising post. There is thus no discrimination between those who held teaching posts and those who held non-teaching posts., G

13Copy pinpoint13. The twelth contention is only to be stated to be rejected. A part of it has already been dealt with earlier. The teaching posts have their on designations and require appropriate qualifications for appointment to them. It is unreasonable to expect that posts and designations equivalent to the said posts should be created in the WBHS to accommodate the H

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A former teacher- doctors opting for the WBHS. In the WBHS excluding its Public Health-cum-Administration Unit, the only posts are, as stated ear- > lier, those of Medical Officers and Specialists. The former teacher-doctors when they opt for the cadre of the WBHS would either be Medical Officers or Specialist depending upon their Qualifications specified in Rule 7(2). B The Public Health and Administration of the former WBHS has become a separate Unit of the new WBHS. Therefore, there is no question of changing either the posts or the designations in the new Unit and those who belonged to the former Public Health and Administration would now occupy the same posts and designations in the new Unit. Hence the mere fact that the members of the former Public Health and Administration shall C be appointed to the equivalent posts in the new Unit does not spell out discrimination in their favour as against the teacher-doctors opting for the WBHS. In their case, there is no change in the nature of duties and functions. The old service stands as if transferred to the new WBHS. Hence, there is no need to create any new posts and designations. There p is also no similarity between former teachers who opt for the WBMES and those who opt for the WBHS. The former would continue in the teaching service and , therefore, would continue in the same posts with the same designations. In their case also there is non change in. the duties and functions. The latter would, however, have to be appointed either as the Medical Officers or the Specialists depending upon their qualifications, as stated earlier. As regards the non-teaching doctors of the former WBHS, they would also occupy either of the said two posts in the new WBHS depending upon their qualifications. Their cases also carinot be compared with the former teacher-doctors who opt for the WBHS and a grievance be made that whereas the former non-teaching doctors have the protection of their earlier posts and designations or have an appointment to the equivalent post in the WBHS, the former teacher-doctors do not have such advantage. There is thus nothing arbitrary and violative of Articles 14 and 19(1) (g) of the Constitution in Rule 7(2) of the Rules on that account. Nor is the said Rule ultra vires the Act. There is no demotion-of the former Professors. Assistant Professors or Readers who opt for the WBHS merely because they would all come within the category of the Specialists when they join th~ new WBHS .. There is no gradation among the Specialists. It., is the actual work performed which grades a specialist in the eyes of the people. A mere designation as a Specialist does not by itself upgrade the work of the medical practitioner. The pay of Rs.3700 is the minimum basic H

S. MUKHERJEE v. STATE OF W.B. [SAWANT, J.] 381

pay altached to the special selection post. It does not mean that whatever the salary which was received by the professors, Assistant Professors or Readers earlier would not be protected when they opt for the posts in the WBHS if the said salaries are higher then the minimum basic pay.

The thirteenth contention is a repetition of the earlier contentions. As has been explained in detail earlier, neither Section 6(2) non any other provision of the Act confers any right to practise on any post in the cadre of the WBHS. It is only a temporary privilege which can be withdrawn by the Government at any time. The members of the WBHS are further liable to be transferred from the practising posts to the non-practising posts. The WBHS consists of both the said posts. Rule 10 of the Rules is, therefore, c non ultra vires Section 6(2) of the Act.

The fourteenth contention has also been dealt with earlier. The contention that Section 4(3) enables the Government to transfer a person appointed to a post in the WBHS, to a post in the Public Health-cum-Ad- D ministration Unit and is, therefore, arbitrary, has to be rejected. The transfor is matter of executive policy and the Act makes the services of persons transferable from one post to another, whether practising or non-practising, to meet the exigency of the service. No exception can, therefore, be taken to the provision which enables the government to transfer a person from the posts in the WBHS to the post in the Public E Health-cum-Administration Unit where all posts are non- practising. It is also not correct to say that those who are posted in the Public Health-cum- Administration Unit cannot be transferred outside the said Unit. Apart from the fact that the said Unit is an integral part of the WBHS, Section 4(4) gives power to the government to make transfer from one post to another which will also include transfer from the said Unit to a post outside it. It is, therefore, incorrect to say that once a person is transferred to a post in the sa,id Unit; he looses for ever an opportunity to be transferred to a practising post. Since there is only a privilege of practice associated even with the practising posts, and the said privilege can be withdrawn at any ti.me, and since the persons are transferable from practising posts to non-practising posts and back, it is incorrect to contend that the option given to join the WBHS is illusory.

It is also incorrect to contend that the said provision is bad because it is. likely to be utilised for victimisation. If a transfer is motivated by a H

382 SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R. ·

A desire to victimise any person, the specific transfer can always be chal- lenged in a court of law. However, no provision can be struck down on the ground that although it is valid, it is likely to be used for an unauthorised purpose.

The fifteenth contention is that there is a contradiction between provisos 4 and 5 of Section 12 of the Act. Proviso 4 states that those holding posts in the Public Health or Administration in the former WBHS who do not exercise any option would be deemed to have exercised option for the new WBHS and their posting will be made in WBHS in phases. The "5th proviso, however, states that such persons would be deemed to have exercised option for the Public Health-cum-Administration Unit of the n_ew WBHS. This is only an apparent contradiction since the legislative intent is clear, namely that the persons holding posts in the former Public Health or Administration should be posted to the new Public Health-cum-Ad- ministration Unit which is an integral part of the WBHS. While the 4th D proviso generally states that they wil1 be posted in the new WBHS, the 5th proviso specifies the part of the Service to which they will be posted. However, it must be stated that in view of the 5th proviso, the 4th proviso is redundant and has survived only as a piece of careless drafting.

14Copy pinpoint14. The sixteenth contention is that under Section 14 (2A), the doctors of the former WBHS who may not be required to exercise any option under Section 12, shall be appointed to the teaching posts in the basic level or to a post· of lectures or to any other teaching posts, as the cas"' may be in the WBMES. Such doctors are those who were holding )>(on-teaching posts in the former WBHS. Section 14(2A), thdefore, makes no sense in that the non-teacher doctors even though they do not possess the requisite qualifications, shall be appointed to the teaching posts in WBMES. One the admission of the respondent-State Government, there are about 6100 non-teaching doctors and there are only about 1400 teach- ing posts. What is furthe_r, the said provision goes counter· to the very object of the Act, viz., to improve the standard of medical education in the State. G The learned counsel appearing for the State Government pointed out that in view of the provisions of the first proviso to Section 14(1), for the first five years the recruitment to the teaching posts in the basic level of the WBMES can only be made from among ---- the persons having the requisite qualifications in the WBHS. In order to meet the exigencies of service, in H case sufficient number of doctors are not available to man the posts in

S. MUKHERJEF.v. STATEOFW.B. [SAWANT,J.] 383

WBMES, the said provision in Section 14(2A) has been made and the Stale A Government is vested with the power to meet the contingency by appoint- ing non-teacher- doctors of the former WBHS to the posts in the WBMES. He, further, stated that keeping the said intention in mind, the word "shall" in Section 14(2A) has to be read down to mean "may". In this connection, he pointed out that the High Court has also construed the B word shall to mean rnay11, taking into account the intention of the 11 11 11

legislature in that behalf.

Keeping in view the ob.icct of the Act and the purpose for which the said provision has been made, the course adopted by the High Court appears to be the proper one. To construe it otherwise would not only c defeat the object of the Act, but negate the entire scheme incorporated in it. Further, the intention of the legislature in enacting the said provision was obviously to enable the Government to meet the contingency where the personnel to man WBMES would not be available in the requisite number and hence, there was need to appoint members of the WBHS in D the circumstances. It will have, therefore, to be held that Section 14(2A) has to be read to mean that the non-teaching doctors of the former WBHS "may" be appointed to teaching post in the WBMES. Thus read, there is no inconsistency between the said provision and the other provisions of the Act or the Rules made thereunder. E

15Copy pinpoint15. The seventeenth contention, viz., that the grant of right to Prac- tise to 6100 non-teacher doctors belonging to the WBHS defeats the object of the Act to improve the health-care, suffers from a basic misunderstand- ing. As has been repeatedly explained earlier, no right to practise has been F given to the non-teaching doctors. Further, not all the posts in the WBHS are practising posts. The privilege to practise privately which has been given to persons manning some posts, is temporary and is likely to be withdrawn at any time. If the State Government finds that the extension of the said privilege. even to some posts affects the patient-care, the State G Government "' free to withdraw even the said limited privilege. There is also no substance in the contention that there was no evidence of the deterioration in the standards of teaching in medical institutes of the State, since in the All India Medical Entrance test conducted by the Medical Council of India, allegedly 25· 30 per cent of the successful candidates during the last three years belonged to the State. Assuming the said figure. H

384 SUPREME COURT REPORTS (1993J SUPP.1 S.C.R.

A to be correct, it would not by itself indicate that the standard of the medical education in the state has not deteriorated. On the other hand, the ex- perience of the State Government of the temporary relaxation of the prohibition against private practice for 25 years from 1965 to 1990 showed that the teacher-doctors were neglecting both teaching and the attendance B to the patients in the hospitals attached to the leaching institutes. The Medical Council of India also held the same view and ultimately passed a resolution in 1973 insisting that the teaching staff of all departments of a medical college should be whole-time and non-practising. The National Health Policy declared by the Government of India in 1983 also pointed to the desirability of prohibiting private practice to the Government medi- C cal personnel. The Standing Committee of the State Legislative Assembly on Health also in its report attributed the fall in the standard of medical education in the State, among other thing, to the fact that the medical teachers were devoting considerable part of their working time to their private, practice. It is, therefore, incorrect to say that there was no evidence D before the State Legislature of the deteriorating standards in the medical education in the State. Further, even it there was no evidence, the State Government was competent to lay down as one of the service conditions for its Medical Officers, that they would not have the right to practise privately. That being a matter of policy, strictly rests within the exclusive jurisdiction of the State Government. E

16Copy pinpoint16. The eighteenth contention has been already dealt with earlier. The members of the new WBHS cannot make a grievance that in the new dispensation, they have no scope for promotion as they will be stagnated only as Specialists. In the medical profession, it is difficult to conceive of F a post higher than •hat of a Specialist. Since the new WBHS has only two grades, viz., the Medical Officer and the Specialist, the non-teaching doctors can be fitted either in one or the other according to their qualifica- tions. The designations such as Surgeon, Assistant Surgeon, Sub-Assistant Surgeon, etc. wl1ich were in existence prior to 1958 were abolished in 1958 when a unified cadre of the Medical Officers were created. Since under G the Act, two separate Services have been created, viz., WBHS and WBMES, no promotions could be given to the members of the WBHS in the WBMES. Whatever may be the case under the 1958 Rules which created the unified cadre both of the teaching and the non-teaching doctors and under which the promotion form one to the otbJer was possible since .H the Act has bifurcated the Services, it is difficult to envisage as to what

S. MUKHERJEEv. STATE OFW.B. [SAWANT.J.J 385

posts could have been created in the new WBHS equivalent to the leaching posts such as Basic Teacher, Lecturer, Assistant Professor, Reader, As- sociate Professor, Professor and Principal. One may venture and suggest a hierarchy in the WBHS, such as Medical Officer, Senior Medical Officer, Junior Speci<tlist, Senior Specialist and so on. That is a matter which has to be left exclusively to the executive policy. Even so, it is difficult to understand how the equivalence of the posts between the WBMES and the WBHS could have thereby been achieved. There is, therefore, no merit in the contention that because the equivalent posts are not created in the two Services, the Act or the scheme under it is bad in law.

17Copy pinpoint17. The nineteenth contention is directed against the non- extension of the option to the non-teaching doctors of the former WBHS. It is contended that whereas those who held teaching posts in the former WBHS have been given option to join either the WBMES or the WBHS, those who held non-teaching posts have not been given such option. Hence the Act is discriminatory. In support of the very same contention, it is pointed out that even those were empanelled for being promoted to the teaching hierarchy were not given such option and they had to be content with the n_on-teaching posts in the new WBHS.

As has been emphasised earlier, the Act envisages the creation of an exclusive cadre of teaching posts and, therefore, has created a separate education service viz., WBMES. While constituting such Service, it was necessary to give option mainly to those who were then holding the teaching posts, since the main condition attached to the new teaching posts was that they would carry no right to private practice. There was no question of giving such a choice to those who did not hold teaching posts. F Such doctors had not joined the education stream even when the teacher- doctors were given the privilege of practising. If they were serious about teaching, they would have joined it much earlier and no waited till the present-Act was enacted. Even now, under Section 14(1), for a period of five years from the date of coming into force of the Act, there is a provision for recruiting members of the WBHS to the basic level teaching posts in G .the WBMES giving due weightage to their service in the WBHS. Clause (a) of the second proviso to the said section states that for a period of five years, recruitment to the teaching posts in the basic level in the WBMES ·shall be made from amongst the persons appointed to the WBHS who had rendered two years' service in the WBHS in the rural areas. Clause (b) to H

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

A the said proviso says that on the expiry of the said period of five years, recruitment to the posts in question in WBMES shall be made through the State Public Service Commission giving due weightage to persons who have rendered two years' service in the rural areas. Similarly, the sixth proviso to Section 14(1) states that similar weightage for service in the rural areas, B shall be given to the persons who apply for the posts of Lecturer and Assistant Professor in the WBMES. It must, further be kept in mind that promotions, transfers and affording options are the exigencies and the incidence of service. There is no vested right of an employee in them. The prm1sions of the Act or the Rules which bring about such change are not vitiated or rendered illegal on that account. Further, the mere empanel- C men! for being appointed to the higher post does not vest the persons empanelled with a right to be posted to the higher post. Hence the grievance made that some .of the non-teaching doctors who had been empanelled for being promoted to the teaching hierarchy were also not given the option to join WBMES and, therefore, the Act and the Rules are D bad in law has no merit in it. There is no data on record to show that, as alleged, a large number of doctors appointed to the posts of the basic teachers in non-clinical discipline and who did not possess requisite eligibility qualifications viz., post-graduate degree in the relevant subject, have been provided with an option to join the WBMES.

18Copy pinpoint18. There is also no merit in the twentieth contention eitlier, viz., that seniority of the members of the WBMES has not been protected due to the introduction of the "Pay to Post" rule and by the abolition of "Pay to Person" rule which was prevalent in the former WBHS. The.. said contention is based on various misconceptions. Jn the first instance, the introduction F of the rule of "Pay to Post" docs not involve either the loss of seniority or the loss of pay for any person, When the members of the former WBHS opt for the WBMES, they carry wilh them their seniority as well as their sa1ary. If in the former WBHS, senior me1nber failed to earn promotions, there is nothing wrong if the junior members of the service \Vho \Vere promoted to the higher posts, start gelling higher pay in the new WBMES G which pay goes with the higher posts to which the juniors stand promoted. It is difficult to understand as to how the higher posts in the former WBHS were carrying less .salary than that of the lower posts. If it was on that account that the seniors, though having failed to find a promotional post, ~ were still getting higher salary than their juniors promoted over them to H,. the higher posts, there seems to be some thing radically wrong with the pay

S. MUKHERJEE v. STATE Ol' WE. !SAWANT, J.] 387

structure in the former WBHS. If the avcrments of the appellants arc A correct, it only means that in the WBMES, pay-scales have been rationalised as they ought to be. Secondly, the members of the WBMES would be governed by their rules which include "Pay to Post" and the members of WBHS would be governed by their separate rules which include the rule of rrPay to Person 11 • The two services are different and, therefore, their service conditions are governed by different rules. Thirdly, B as has been pointed out on behalf of the State Government, the seniority in the teaching stTeam or attainment of the senior post in the teaching stream depends on the dates of appointment on the teaching side. A doctor may have attained the qualification to enter the teaching stream by obtain- ing his M.D. or M.S. degree but he may not have chosen lo join the c teaching stream immediately whereas another doctor might have joined the teaching stream immediately after obtaining the eligibility qualification. In that case, the latter will be senior to the former on the teaching side and will attain higher post earlier than the former. Hence there is no substance in the ~aid grievance. D

19Copy pinpoint19. The last contention is based upon the premise that is was neces- sary to constitute the new WBHS before the teacher-doctors of the old WBHS asked to exercise option either join the new WBMES or to hold the non-teaching posts in the WBHS which remained after the bifurcation of the teaching posts from the non-teaching posts. The contention is that E the non constitution of the new WBHS deprived the doctors from exercis- ing their option effectively.

This contention ignores the fact that under the Act, the choice was to be exercised hy the doctors who held teaching posts in the former F WBHS. No choice was to be exercised by those who held non-teaching posts. The choice before the teacher-doctors was whether they would join the WBM'ES which was ·a non-practising service or would remain \vith the former WBHS in which there were some and not all posts with the privilege of private practice. The Act itself farther made it clear that the two services, viz., the WBMES and the WBHS may be constituted on different G dates. The Act had also incorporated in it all the important features of the new WBHS such as the constitution of a separate Public hcalth-cum- AJn1inistration as a separate Unit, Government's right to tr:insfer the member of the WBHS to any post including the post in the Public Health-cum-Administrntion Unit which has all non-practising posts, the H

388 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A prohibition of transfer of a person appointed to the WBHS to the WBMES except under Section 14(1) and 14 (2A), the existence of posts in the WBHS without the privilege of practising, the continuation of a person appointed in the cadre of the new WBHS on the same terms and condi- tions as were in force immediately before the coming into force of the· Act B etc. It is, therefore, difficult to under stand the grievance that in the absence of the constitution of the new WBHS, those who had held teaching posts in the former WBHS had no effective opportunity to exercise their option.

The specific grievance made on account of the non constitution of C the new WBHS before the teacher-doctors were asked to exercise their option may now be dealt with -

(i) The grievance that a large number of senior doctors are com- pelled to sacrifice their seniority and pay scales is not borne out by the facts. In fact, both the salary and the seniority of the said doctors in the D WBMES is protected. If the juniors were promoted to higher posts in the earlier service and if on that account, they are now holding posts higher than their seniors, the senior, doctors cannot make grievance on that account.

(ii) The grievance that the teacher-doctors who had not exercised their option for the WBMES are being posted in the junior posts in the WBHS, which posts they had held at the threshold of their service career is not correct as pointed out on behalf of the State Government. In the fi~st instance, as has been stated in Rule 7(3), no Specialist shall be posted in any of the Health Centres, rural hospitals or teaching hospitals mentioned in items (a), (b) and(!) of Schedule II of the said Rules. If they are posted to other institutions, viz., institutions mentioned in items (c), (d) and (e), no grievance can be made by them since the institutions mentioned in (c), (d) and ( e) stand on a higher footing than the institutions mentioned in (a), (b) and (!).Secondly, even when the seniors are posted as Specialists G to the institutions mentioned in items (c), (d) and (e), they would not be posted to the same post to which they were posted at the threshold of their career but to the senior posts with their seniority and the salary being protected.

(iii) The third grievance is in respect of some particular doctors who had not exercised their option because the promotions due to special

S.MUKHERJEEv. STATEOFW.B. [SAWANT,J.] 389

selection grade and higher academic grades such as Professor, prior to coming into force of the Act, were not given to them and they were waiting for a clarification from the Government in that behalf. It is difficult to understand this grievance. When the new Act came into force changing the whole pattern of service and creating a new service in the form of the WBMES, it was not.open for the said doctors to ask for such clarification. As stated earlier, no employee can have a vested right in promotion, and if the old dispensation gives way to the new, it was all the more unwar- ranted on the part of those whose promotions were due under the old dispensation to expect that whatever the altered conditions under the new ') dispensation, they would be given promotions on the same terms and conditions as obtained under the old dispensation. c (iv) Since, as stated earlier, the constitution of the new WBHS did not bar the option to be exercised by the teacher-doctors of the former WBHS, it is not understood as to how those who exercised as well as those who did not exercise the option can be said to have been denied the opportunity to exercise the option. D (v) There is nothing either in the Act or the Rules which disturbs the seniority and the status of the members of the former WBHS. Hence this grievance has no meaning. E (vi) The grievance that thy former teacher-cjoctors who exercised their option for the new WBHS have been posted ii{ non-teaching hospitals ' where they are place to work under the control of their junior officers appointed as Superintendents of the said hospitals has J,:ieen specifically denied by the State Government. It has been poi~ted out that each and every doctors who has been transferred to various non-teaching hospitals is holding independent charge of his respective job and the seniority, pay, allowances and other benefits including his power to admit, operate and allocate beds to the patients under his control is fully protected.

(vii) The grievance that the hierarchy is created for public Health- cum-Administration Unit to protect the seniority and status of those who earlier worked in the Public Health and Administration has already been dealt with earlier. No such hierarchy is created for the other members of the WBHS. The Public Health-cum-Administration Unit is a separate unit, the hierarchy in which needs no change since the earlier Public Health-' cum-Administration stood transferred as a Unit to the new WBHS. lt has H

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A remained as it is. This was not with the deliberate intention of protecting the hierarchy of the posts in the said Unit. It is an incidental consequence of the creation of the new services. There is, therefore, no discrimination. The posts in the said Unit had since 1958 all along been separate from the rest of the posts in the WBHS.

B (viii) This grievance has been dealt with earlier. The former WBHS was a unified service whereas the new WBHS is independent of the education service. Hence, the same ladder of prombtions , and promotional opportunities cannot be expected in the new WBHS. As stated earlier, the new WBHS has only two posts, viz., Medical Officer and Specialist. c (ix) There are no details given of the grievance made that the members of the former Health Service are being sought to be transferred and appointed either to the feeder posts or non-existent posts under threats and humiliation. It is not, therefore, necessary to deal with this allegation. In any case, such instances, if any have to bearing on the vires of the Act D and the Rules.

(x). The tenth grievance is in respect of particular persons which can be looked into by the State Government provided the said persons have joined the posts. E (xi) This Grievance has not been replied to on behalf of the State Government. If is true, it is against the provisions of the Act. The appel- lants have not stated the result of the legal redress they had sought in the matter. If the grievance is not yet redressed the State Government should rectify the same immediately by rescinding the notification in question. The F concerned doctors should be given time of at least two weeks from the rescission of the notification to exercise their option .

(xii) The last grievance consists of two parts. The first part relates to the alleged appointment in the cadre of WBMES other than through the Public Service Commission. As has been pointed out earlier, clause (a) of G the second proviw to Section 14(1) requires the State Government, for a period of five years, to recruit to the basic level teaching posts in the WBMES, persons appointed to the WBHS who have rendered two years' . service in the rural areas. There is no data before us which will show that the appointments in question fall outside the purview of the said provision. H It is, however, difficult to understand as to how such a grievance can be

S. MUKHERJEE v. STATE OFW.B. [MOHAN,J.] 391

made in the present appeals which seek to challenge the vires of the Act A and the Rules.

As regards the second part of the grievance, viz., the Specialist doctors of the WBHS being transferred to districts or sub- divisional hospitals and health centres which do not have the required infrastructure' to utilise their expertise, the learned counsel for the State Government has B assured us that such cases if any would be reviewed by the State Govern- ment provided the persons concerned first join the posts and make specific representations. However, if they are transferred to such institutions, with a view to organise the infrastructure for the requisite specialist service proposed to be made available at those institutions, the persons concerned . C cannot make any grievance in that behalf. In fact, they are the proper persons to be posted to such institutions for the purpose.

MOIJAN,J.

Though I am in entire agreement with my Learned Brother Sawant, D J. I wish to add the following:

My learned Brother has dealt with the facts and the circumstances leading to these appeals. So it is unnecessary to trace the same. The matter may be considered with reference to the following: E (i) The scope of the Act and the Rules;

(ii) Rules-whether ultra vires ?

(iii) Whether there is a fundamental right to practise ? F (iv) Orders of transfer - whether actuated by ma/a fide ?

(i) The scope of the Act and the Rules.

Though a synopsis has been set out in the beginning of the judgment of my learned Brother it is necessary to trace the full background leading G to the impugned Act namely the West Bengal H.ealth Service Act, 1990 (West Bengal Act VII of 1990) and the rules made thereunder.

In the State of West Bengal in 1958, a unified cadre of government doctors known as the West Bengal Health Service was constituted. The d(/ctors who were the members of this service fell broadly into three H

392 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A categories, namely:

(i) Doctor engaged primarily in teaching along with duties of the hospital to which teaching institutions were attached.

(ii) Doctors engaged on the curative side attached to various hospi- B tals and medical centres throughout the State but were not engaged in teaching and;

(iii) Doctors primarily involved in administrative work.

In the said unified service as originally constituted, private practice C by government doctors was totally prohibited.

In the year 1965, a Government Order was passed relaxing the said Rules prohibiting private practice and granting permission to engage in private practice in some of the posts in the West Bengal Health Service D subject to certain conditions. The doctors who op\ed for private practice had to forego certain pecuniary benefits such as non-practicing allowance. They were required to submit an option in the prescribed form. That contained declaration to the following effect:

(i) They had no claim or right to private practice; E (ii) They were liable to be transferred to any post where private practice was no permissible.

The permission to engage in private practice was given purely on temporary basis under an experimental measure. It was made clear that the position would be reviewed in future in the light of experience gained.

Towards the end of 1989, having studied this system for nearly 25 years, the Government of the West Bengal felt that the existing system was not satisfactory. It had found, in particular that, the quality of medical education in the State had deteriorated considerably. One of the reasons for this was that the doctors engaged in teaching were paying more attention to private practice with the result, they were found to be largely absent from the lecture rooms. They were neglecting their duties towards the hospitals attached to the teaching institutions. There was a lack of devotion to the teaching side. This brought about the lowering of the standard of medical education in the State.

S. MUKHERJEE v. STATE OFW.B. (MOHAN,J.] )93

In view of the. deteriorating standard of medical education in lhe A Stale and in order to improve its quality the Government of West Bengal decided, as a matter of policy, to bifurcate the existing unified service and to create a separate service known as West Bengal Medical Education Service for .doctors engaged in teaching. They would be known as non- practising doclors.·'fhis policy of the State Government was formulated in B the light of the views of the Medical Council of India. In its resolution adopted in 1973, it stated that "teaching staff of all departments of a medical college shall be whole-time and non-practising". The National Health Policy was published in the year 1983 by the Government of India. In the National Policy Studies published in the year 1990 by the Govern- ment of India, it is stated: c "It is desirable for the States to take steps to phase out the system of private practice by medical personnel in government service, providing at the same time for payment of appropriate compen- satory non-practising allowance. The States would require to care- D fully review the existing situation, with special reference to the availability and dispersal of private practitioners, and take timely decisions in regard to this vital issue".

A Standing Committee on.Health. of West Bengal Legislative As- sembly also submitted a report to the same effect. While analysing the . E cause of the falling standard of medical education in West Bengal, it stated that medical teachers were devoting a considerable part of their working time in private practice. According to the Committee, amongst the impor- tant factors responsible for this situation were that "the teachers are busy for their commercial benefit using Medical Colleges as their publicity platform and socio-political power". "Consequently the students are keen to get the degree by any means without being keen to learn their subjects and social orientation in their training". It also stated: "it observed that West Bengal has the best organisation for Health, so as far its infrastruc- ture is concerned. But it failed to maximise the benefit of such huge infrastruc~ure. One of the reason" of this failure, the Committee surmised, lay in the respective system of medical education". The report stated "it was noted that most of the teachers and principals agreed that the standared of medical education has uniformly degenerated in all the medical in- stitutes11. The Committee took evidences of the Presidents and Secretaries of Students1Unions of all the Medical Colleges. All of them agreed about H

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

A the pitiable situation of medical education. Their main complaint was that teachers were mostly busy in iheir private practice and least concerned about the training of students. The statements of the Director of Medical Education and the Vice- Chancellor, the Dean, the President of Medical Association and the Principals corroborate that there is a need for overall B changes in the system of medical education. The report noted "that the medical education in our State is not only in disarray but in distress." The Committee made several recommendations to remedy this slate of affairs, amongst which were:

"(a) Effective implementation of separate teaching cadre c should be done immediately and proper infrastructure and super- structure be created for its function.

(b) Teaching cadre must be made non-practising. No medical personnel with practising facilities will be allowed to be attached in a medical collegen '· D On the basis of the policy decision of the Government, an Ordinance was promulgated known as West Bengal Health Service Ordinance, 1990. The said Ordinance was thereafter replaced by West Bengal Health Service Act, 1990 (West Bengal Act VII of 1990). The Statement of Objects and E Reasons reads as follows:

"The existing West Bengal Health Service consists of about 8,000 (eight thousand) Medical Officers. Because of its huge size, the efficiency of the service could not be improved to the expected height as expected from such services. The weakness lies in ef- F ficiency of Medical Officers occupying Administrative posts as well as meaning of the Teaching posts, specially in the dearth dis- ciplines, and also quality of of medical teaching and hospital care. Normally, Medical Officers do not like to join such posts from the unified Cadre of the West Bengal Health Service."

G Therefore, it was proposed that the existing health senice should be bifurcated. A separate service called West Bengal Education Service should be created for the medical teachers only. The said service shall comprise of 1400 teaching posts. The service is to be compulsorily non- practising with the expectation that .the standard of medical teaching and care to the patients in our medical colleges and hospitals including other

S. MUKHERJEE v. STATE OFW.B. [MOHAN, J.] 395

teaching hospitals will be improved. There will be no dearth of teaching in most of the disciplines within a near future.

A Public Health-cum-Administration Unit within the limits of West Bengal Health Service has been proposed. The administration unit will consist of about 500 Medical Officers who will be entirely in-charge of administration as Administrators. It is envisaged that with a training and experience such group of Medical Officers would prove themselves as good administrators in the proposed unit which also will be entirely non-practis- ing.

The said West Bengal Health Service cadre excepting the proposed C Public health-cum-administration Unit \viii, as a result, consist of Medical Officers who will be involved in patients care only. It was in this back- ground that the impugned Act came to be passed.

Section 2 is the definition Section. D Section 4 states that a person appointed to the West Bengal Medical Education Service shall not be transferred to West Bengal health service. Likewise, a person appointed to a post in the Health Service may be transferred to a post in Public Health-cum-Administration Unit as a operate unit. However, the State reserves the right to transfer any person from one post to another. Section 12 lays down the option to be exercised. E In the unified service, if a person held a teaching post, he may exercise an option either for West Bengal Medical Education Service or West Bengal Health Service. Upon exercise of such option, he is deemed to be ap- pointed to the post to which he is deemed to have exercised ms option. F Under Section 6, the State Government is empowered to declare any under-graduate or post-graduate from medical college or other teaching institution together with the hospital (if attached) to be a non-practising institution. Upon such declaration, the right to indulge in priv•te practice \vill cease. G This is subject to three Provisos:

(a) A person holding a non-teaching post may exercise an option for ·practice or non-practice. Such option is to be exercised:

(la) By a person holding non-teaching post; H

396 SUPREMECOURTREPORTS (1993)SUPP.1 S.C.R.

A (lb) Such option could be exercised within a period of90 days from the date of coming into force of this Act or within the extended period;

(ii) Where the person exercises an option for non-practice, he is allowed six months time to wind up his practice.

B (iii) If the option is not so exercised, he can be' transferred to any other hospital on such terms and conditions for practice.

Sections 7 and 8 talk of cadres in Education Service and Health Service respectively. The Health Service is tO include a separate cadre for C Public Health-cum-Administration Unit. The former consists of teaching posts while the latter consists of non-teaching posts.

Section 9 makes clear that the posts included in the cadre of West Bengal Education Service shall be non-practising. As a compensatory measure for deprivation of practice, a non-practising allowance is provided. D Section 10 applies the same formula of non-practice to Public Health-cum-Administration which, as stated above, is separate unit of Health Service. Here again, a non-practising allowance is provided.

Section 11 preserves the right of those appointed to a post in the cadre of West Bengal Health Service. In that, he will continue on such post as he occupied in the former West Bengal Health Service. This, of course, will not apply to a person posted in the Public Health-cum-Admiuistration Unit.

Section 12 as has already been noted deals with the exercise of option. The said Section is subject to five provisos. Th~y require to be carefully seen.

First proviso docs not cause much difficulty. It says· if a person appointed or deemed to have been appointed to a teaching post in the basic level in the Education Service if he is J.!Ot selected for promotion or recruitment as a lecturer, he is liable to be transferred to a non-teaching post. The period within which he has to qualify for promotion or such recruitment is five years from the dale of appqintment to the teaching post.

The second Proviso lays down where a person opts for West Bengal H Medical Education on such appointment to the teaching post, he has to

S. MUKHERJEEv. STATEOFW.B. [MOHAN,J.] 397

perform his duties in hospital in addition to his duties as teacher of the discipline.

T.he third Proviso deals with a person holding a post connected with Public Health or Administration in the former West Bengal Health Service. He may exercise an option either to the West Bengal Health Service or the the Public Health-cum-Administration. This is qualified by the fourth proviso which states that the persons holding posts connected with Public Health or Administration in the former West Bengal Health Service who did not exercise any option shall be deemed to have exercised option for West Bengal Health Service where practice is permissibly. c The last of the provisos states that if the persons holding administra- tive post in the former West Bengal Health Service who did not exercise any option shall be deemed lo have exercised the option either for West Bengal Health Service m for Public Health-cum-Administration respec- tively. D

Section 13 fills up the newly created West Bengal Health Service in phases by transfer of such of those persons holding the teaching posts but who had not opted for Education Service. E Section 14 talks of recruitment to all teaching posts through Service Commission. The Provirn deals with fixation of quota. Sub-section (2A) of this Section which came to be introduced (by amending Section West Bengai Act XIII of 1990) states that a person who is not required to exercise option shall be appointed to a teaching post in the basic level or to a post of lecturer or to any other teaching post in the Education Service. F Section 16 fixes the age of retirement of those in the Education Service at 60 years with a possibility of re-employment until the age of 65 years. The only other Section which remains to be seen is section 20 which says that the Act shall have overriding effects. G By a Notification dated 25.5.1990, West Bengal Medical Education Service Cadre and Age of Retirement Rules 1990 were framed.

On 13.5.t990, the West Bengal Medical Education Service Pay and Allowance Rules 1990 came to be framed. H

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

A On 3.3.1993, the West Bengal Health Service Rules were framed, on which date the Rules came into force. Ruic 3 emphasises that the Health Service shall consist of a separate unit known as Public Health-cum-Ad- ministration Unit. This is in accordance with Section 10. Rule 5 in catalogu! ing as to the members of the West Bengal Health Service specifies the I . B following five categories of persons:

(i) All members of the former West Bengal Health Service who have not joined the West Bengai Medical Education Service:

(ii) Persons who hold teaching posts in the former West Bengal C Health Service who have not joined Medical Education Service but who have opted to join Health Service (this option is to be exercised within 30 days from 3.3.1993);

(iii) Persons who hold posts connected with different ._health or D Administration in the former West Bengal Health Service and who have opteu for Health Service or the caurc of Public Health-cum- Administra- tion (here again the option is to be exercised within 30 days from 3.3.1993);

(iv) Those falling under clauses (ii) and (iii) who had not exercised the option for the West Bengal health Service and who are deemed to have exercised as option for the West Bengal Health Service or for the cadre for Public Health-cum-Administration by a deeming clause.

(v) All persons newly recruited through Service Commission.

Rule 6 talks of eligibility of a per;;on to be appointed to a post in public Health-cum-Administration Unit provided the option is exercised as stated above. Here again, the emphasis that all posts in Public Health- cum-Administration are to be non- practising. This again is not in accord- ance with Section 10.

G Rule 7 talks of the grades in West Bengal Health Service:

(i) Medical Officers;

(ii) Specialists.

H The qualifications for declaration as a Specialist are:

S. MUKHERJEE v. STATE OF W.B. [MOHAN, J.] 399

(a) a post-graduate degree, and A (b) at least 5 years as Medical Officer

or (a) a diploma and B (b) al least 8 years experience as Medical Officer.

In the latter case, declaration as a Specialist will be only i!l dearth discipline as mentioned in the said Ruic.

A Specialist cannot be posted in any of the Health Centres, Rural C Hospital or Teaching hospital as mentioned in items (a), (b) of (f) Schedule II.

Rule 8 is positive in its terms. It states that persons posted in rural health centres, rural hospitals and teaching hospitals shall be engage in D private practice. Jn contradistinction, Rule 9 says that such of those belong- ing to West Bengal Health Service and who hold posts in (i) all specialised hospital for treatment of T.B., Leprosy and Mental and infectious diseases; (2) all State General Hospitals and State Hospitals situated in the District of Bengal; and (3) all State General Hospitals and State Hospitals in the Districts and City of Calcutta, would be entitled to practice provided the E ---Option is exercised in this regard. Here again, the qualification of private practice is not conferred as of right but only a privilege since notwithstand- ing the option the doctor may be transferred to a post where private practice is not permitted. However, the privilege of private practice could be withdrawn by the Government if it is desirable in public interest. This F is confirmed in Rule 10.

Rule 11 states the consequences should a doctor opt for private practice like a deduction of 50 per cent of salary, denial of house rent allowance etc. G The above is the analysis of the Act and the Rules. Mr. Soli J. Sorabjee argued that without the constitution of the West Bengal Health Service, the option available under Section 12 would be illusory but as on now the position )las changed completely since on 3rd of March, 1993 the State Government constituted the West Bengal Health Service. H

400 SUPREME COURT REPORTS [1993) SUPP. l S.C.R.

A (ii) Rules : whether ultra vires?

Rule 8:

The first attack by the appellants is that Rule 8 of the Health Service Rules is ultra vires of Section 2. Rule 8 prohibits private practice altogether where a doctor is posted to the health centres, rural hospitals and teaching hospitals mentioned in Items a, b and f of Schedule II. This is stated to be in conflict with Section 6(2) of the Act. A careful reading of Section 6 clearly discloses that it does not confer a right to practise upon transfer from a teaching institution or a hospital. Rule 8 when read in conjunction with Rule 9 would disclose the differentiation between two categories of posts. Under Rule 8 the bar of private practice is underscored while under Rule 9 permission to private practice is envisaged. If the entire purport of the Act and the Rules is to reduce private practice to a privilege how could such a right be insisted upon by the exercise of option to join the Health Service. There is a point in barring private practice in the case of such of those doctors posted in primary health centres; rural hospitals. One can even take judicial notice of the fact that the medical facilities in rural areas are scarcely available. As citizens of free country th~ rural population of India would legitimately expect the Government to give reasonable medical facilities. Such of those in villages and rural areas could only turn to these primary health centres or rural hospitals. The heavy dependence of the rural population on these medical centres should require the doctor to engage his full attention. If private practice is allowed the unfortunate rural folks would be deprived of even the small facility of primary health centres or rural hospital.

Category F of Schedule II stands apart. They are educational institu- F tions where medical education will have to flourish on proper lines. If private practice for those professors or teachers is allowed the neglect of such education would only lead to deteriorating standard.

At this stage, duties of the teachers may be emphasised.

G Every teacher-doctor must endeavour to make his institution a brighter institution - a fragment of Heaven on earth, an El dor~do ofpeace, joy and wisdom. After all, an institution is. what its teachers and professors make it even as a nation is what its patriots make it, a religion is what its prophets make it and a home is what its women H make it. Without a band of devoted men of medicine who are inspired

S. MUKHERJEEv. STATEOFW.B. [MOHAN,J.] 401

by a holy zeal, an institution with the parapheinalia of modem_ A conveniences will be like without the spark of like; without soul. When there are all the advantages, it is no virtue if tolerable work alone is tumed out. But it is only when there are handicaps mocking at enteip1ise should the human spirit triumph and establish that the will is an all-conqueling force. T7ze greatest men of medicine of the past and the present who have profoundly influenced men's minds ·have been indomitable spilits who have sf!uggled against tremendous odds.

Inner strength which is not cowed down by adversities, is what is required. If that noble quality is to be nurtured one must have tremendous faith in one's mission. To practise medicine is not a craft but a calling; not a profession but a vocation.

Sincelity of purpose and earnestness of endeavour are the two wings that will bear one aloft to the tower of success. Given these virtues, other qualifications will follow of their own accord.' D It is a cold and in-esistzble fact of logic that doctors exist for the institution and that the institution does not exist for their convenience and profit. It sustains and nourishes them, and it is· up to them to cling to it with steadfast loyalty and to toil to promote its highest interests. E "From good to better, daily self-surpassed," has to be our motto. The nature of the profession is such that it definitely demands a spirit of service and sacrifice. After all what lends dignity to any person is his attitude to work and no the emoluments of his office.

."Honour and shame from no condition rise Act well thy part: . F there all the honour lies 11

The duty of a true teacher-doctor is to· instmct, inspire and illumine. G Rules 9 and 10:

To such of those cases to which Rule 9 applies, private practice is permitted on exercise of option. Those are categories of cases falling under Items c, d and e of Schedule II. These. non-teaching doctors, who have the . privilege of private practice, do so in view of the undertakings and decla-

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

A rations given by them while exercising the option that he shall not acquire any claim for appointment only to practising post in future and that he shall continue to be employed by transfer to any post in the cadre, practising or non-practising, in the exigencies of public service. Therefore, having given an undertaking and being conscious of the implication, the doctor cannot B be made to wriggle out and insist upon private practice as of right. It is important to note, in this connection, as to what was the position prior to the Act which is preserved by the saving provision of Section 19. Prior to the Act the former West Bengal Health Service constituted a unified service. under the terms and conditions of the service there was no right to private practice. The Memorandum bearing No. LEstt/2007/25- 120/64 C dated 1st April, 1965 issued by the Government of West Bengal also emphasises this aspect of the matter. In that, no right to private practice as such was conferred.

As regards the arguments that upon transfer the status of the doctor D is not protected and, therefore, the Act and Rule 7 are arbitrary, un- reasonable, there is no substance. Where a teacher-doctor who had not opted to join West Bengal Medical Education Service is transferred to West Bengal Health Service, there is no loss of seniority at all, nor even, is there any loss of pay. It may be, he is posted to some place or institution falling within Items (c) (d) or (e) of Schedule II. It may be even outside E Calcutta. He might have even worked earlier in that Station. But important point is that he is not posted to the same post which he occupied earlier but he is transferred to a senior post carrying a higher status with full protection of seniority and emoluments. Besides, in the West• Bengal Health Service there is no hiernrchy in contradistinction to the Education Service or the Public Health Administrative Unit of West Bengal Health F Service. If really, a doctor wanted to remain in the hierarchy he should have chosen to remain. in the Education Service. Therefore, in the absence of hierarchy there cannot be loss of status. Then again, the Health Service talks of Medical Officer and a specialist. Therefore, only to either of these categories _a person joining West Bengal Health Service could be posted. G In view of the above, the two services could be created at different times. Therefore, as a matter of policy, the act seeks to bifurcate the existing health service into two separate services:

H (i) dealing with doctors engaged in teaching in the 13 teaching

S. MUKHERJEE v. STATE OF W.B. [MOHAN, J.] 403

institutions in the State; A

(ii) doctors engaged on the curative side and with public health and administration who were not concerned with teaching.

Thus, it is obvious that the teaching doctors belonging to West Bengal Medical Education Service would be debarred'1rom private prac- B tice.

Section 4(3) of the Act is attacked as unconstitutional as it confers an absolute power to the Government to transfer the doctors after hming exercised their option for the West Bengal Health Service. From that service they could be transferred to Public Health-cum-Administration c Unit which Unit is non- practising. In the absence of any guidelines the exercise of statutory power would be arbitrary in nature. The short answer to this attack is, as stated above, the Public Health-cum-Administration Unit i~ a part of the Health Service. If transfers are warranted in the exigencies of service and in public interest it cannot be stated that the D power conferred under Section 4(3) of the Act is arbitrary. Then again, if private practice is only a privilege and not a right, one can have hardly any complaint.

Further contention of Mr. Kapil Sibal, learned counsel, that under Section 18 the Act is not applied to some teachers like ex- Management E Cadre, Emeritus Professor and Dental Surgeons and, therefore, it is dis- criminatory. It is not so. None of the aforesaid categories of teachers belong to former West Bengal Health Service. The service conditions of a few teacher-doctors of Ex-Management Cadre would obviously be governed by the terms of taking over of the Management. Dental Surgeons F belong to a separate service known as \he West Bengal Dental Service. Their service condition is guided by the terms and conditions of the said service. It is well-known that Emeritus Professors or eminent teacher-doc- / tors who have retired from the Health SerVi'ce their services are utilized in view of their eminence and the being paid an honouraruim. Therefore, G there is no discrimination at all.

The argument of Mr. Nariman, learned counsel. that the combined effect of Sections 6, 9, 10 and 11 is to protect private practice which is taken ~way under Rules 9 and 10. These Sections, in our considered view, provide for total prohibition of private practice in the 13 institutions. Even H

404 SUPREME COURT REPORTS [1993] SUPP. I S.C.R.

A prior to the impugned Act private practice was allowed to holders of some posts purely on and experimental n1easurc; nor again, \Vas any right to continue in a post which would enable a doctor to have private practice. In the exigencies of service he could always be transferred to a post where private practice is impermissible.

B With regard to Section 12 it has already been noted as to what exactly is the scope of 4th and the 5th provisos.

· The 4th proviso deals with persons connected with Public Health and 'Administration. In the former West Bengal Service those who had not exercised their option would be accommodated in the Health Service in phases while the 5th proviso deals with those holding teaching posts and administrative posts in the former West Bengal Health Service. Jn the absence of exercise of option they are deemed to belong to the West Bengal Health Service or public Health·cum·Administration Unit. There· fore, to different categories of persons are dealt with. The situation is brought about by non-exercise of the option Section 14 (2A) of the Act uses the word "shall'', which no doubt, cannot be construed as mandatory but it should be directory as held by the Calcutta High Court in the impugned Judgment.

E The argument of Mr. Ganguli is in the unified cadre the system was 11 pay to the post 1' while in the newly constituted service a teacher-doctor junior in service will get higher pay. This argument is unacceptable. The post and the designation of the teacher under 1958 Rules was dependent on his entry in the teaching service. The late entry may be due to many F reasons:

1. Because of attaining eligibility subsequently.

2. Not to enter the teaching service early.

3. Not being found fit for the teaching service. G As a resulC one \Vho had joined earlier in the '1Teaching strcan1 11 \Vill attain the higher designation earlier than that of a person who had joined at a later stage. By virtue of" pay to the post" as now provided in the new service he is entitled to the scale of his designation. There is no anomaly H or discrepancy or unreasonableness as contended.

S.MUKHERJEEv. STATEOFW.B. [MOHAN,J.[ 405 ., The prescription of different ages of rctircn1ent viz. 58 years in A WBHS and 60 years for WBMES and a possibility of extension upto 65 years, do not constitute any discrimination, since they belong to different services.

In the final analysis, it is difficult to uphold the challenge to the provisions of the Act and the Rules. These provisions merely try to restore B the old position of banning private practice with reference to holders of posts in the 1.3 teaching institutions. Whether there should be a total ban or not is a matter of State Policy with which the Court has least concern. The authorities are uniform in this regard. We would only refer to Rese1ve Bank of India v. N.C. Paliwal, [1977] 1 SCR 377. At page 393 it is observed c thus:

''It is entirely a matter for the State to decide whether to have several to decide whether to have several different cadres or one integrated cadre in its services. That is a 111atter of policy 1vhich does not attract the applicability of the equality clause. The integra- D tion of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality. (Emphasis supplied) E (ii) Whether there is a fundamental light to practise?

No Government doctor can claim right to private pracrice. Even otherwise, it is a reasonable restriction in the interest of puhlic as held by the High Court of Allahabad in Dr. Y.P. Singh v. State of U.P., AIR (1982) Allahabad 439. At pages 449-59 it is stated thus: F

"ll was submitted on behalf of the petitioners that the field of public health is being served by these petitioners and if they are ·.' restrained from doing so, public will be deprived of their services which would not therefore, be in public interest. I Jo not find any merits in this contention. The petitioners do not give (service) G after office hours without charging fees. Their fees cannot be paid by hungry, indigent persons. They are approached by those who can afford to pay them. So, the majority of these deprived persons· are not going to get any benefit from them. They have to depend on the hospital and dispensaries set up by the Government for H

406 SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A public benefit. The right of the petitioners to practise the profes- sion of medicine cannot be said to have been violated by the impugned rules. The rules do not prevent a graduate in medicine and surgery from practising his profession. It in effect only provides that if such a graduate has become a Government doctor and draws salary from public exchequer he shall not be entitled to do private B practice for pecuniary consideration in cash or kind while remain- ing in Government service. The restriction imposed by the im- pugned rules merely prescribed conditions which must be observed if the petitioners want to remain in Government service. No medi- cal graduate is entitled to practise as of right unless his name is c entered in the rolls of doctors maintained under the Indian Medi- cal Council Act. He can practise if under the relevant existing statute he is registered and granted a certificate to practise as such. He is thereafter entitled to apply for a Government job if there is a vacancy and if he gets that job, he has to abide by the terms and conditions thereof and the rules and regulations governing the employment under the State. For the maintenance of di>cipline and for social good the rule may prohibit him from private practice for pecuniary consideration in cas~ or king. It may be that the staff in the Government hospitals and dispensaries may not be sufficient to attend to all the patients who visit the same in large number but that would not mean that, those poor patients who remain unat- tended should be driven to private clinics of these Government doctors to be attended to only on payment of fabulous fees. A rule prohibit in exploitation of the misery of the people by the privileged doctors is in the preponderant interest of the society. It has come in counter-affidavit that teachers of the Medical Colleges have been paying their attention to their private patients which has obstructed the discharged of their duties in teaching Medical students as well as in attending to the patients in the hospitals. To say that if the petitioners would not be allowed to do private practice, they would lose their incentive is to speak against their competence and efficiency as teachers and Government doctors. The time which they devote in their private clinics can better be utilised for making researches and further studies in medical science. The reports of the aforesaid Committees point out that private practice has been responsible for neglect of essential parts of the duties of these H

S. MUKHERJEE v. STATE OF W.B. [MOHAN, J.) 407

Government doctors and teachers. It has been stated in para 14 A of the counter affidavit that the State Government has been cog- nizant of the fact that private practice by the teachers in the Medical Colleges distracts in the Medical Colleges distracts their attention from the task assigned to them, their time and energy is devoted in attending to their patients at private side and the patients who can afford to pay on the private side receive greater B attention from them than those who do not possess such means and resources. It was also said that hospital equipm<;rit, medicines, laboratory test facilities and the like are diverted and utilised for the treatment and care of the patients in ·whom the teachers of the Medical Colleges are interested in private side. c The fact that the petitioners' private earnings would be adver- sely affected in no valid ground to hold that the restriction is not in public interest or is unreasonable. These petitioners are in the employment of Government and they cannot claim as of right to earn any additional income by resorting to private practice. The various reports referred to hereinabove submitted to the govern- ment fnrnish sufficient evidence to come to the conclusion that private practice by the medical practitioners employed in State service would not be beneficial to the interest of general public and to the cause of medical education. It seems that the situation had become so appalling that even the Medical Council of India in its resolution of 24th March, 1976 had to recommend to the State Governmenis that all posts of teachers of Medical Colleges ." should be declared full-time and non-practising in order to ensure high standard of medical education and research. The Medical F Council consist of experts who lay down curriculum for medical education and provide guidance to teachers and medical prac- titioners in the matter of medical education. There was no reason for the Government to ignore the aforesaid recommendation of the Medical Council.' G While agreeing to the above dictum it may only be added that the Health Service of the Government deals with very sensitive issues, the services are concerned with the well-being of the poorer sections of the community. The State Government has endeavoured its best to implement the National Health Policy and the decision of t.he Medical Council of H

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

A India. It has also given shape in the form of this Act to the recommenda- tions of the Standing Committee on Health of the West Bengal Assembly.

The impugned orders of transfer are not in any way actuated by ma/a fides but have been passed to effectuate the provisions of the Act the only policy being to provide proper medical facilities as stated above. B In view of the above discussion, all the civil appeals will stand dismissed.

ORDER

C In the view taken by ns, we dismiss all the appeals with costs.

We further direct that if there are any proceedings pending in any court including the High Court in which the Provisions of the West Bengal State Health Service Act, 1990 or the provisions of the West Bengal Health Service Rules, 1993 are under challenge, they shall all stand dismissed. D The appellants in Civil Appeals Nos. 3394-97 arising out of S.L.P. Nos. 4176, 4192. 4184 and 4185 of 1992 are granted time upto the 10th of August 1993, to exercise their option join the WBMES. ·

G.N. Appeals dismissed.