TMI Blog1993 (7) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, violative of Article 14 of the Constitution. Hence these appeals. 2. In order to appreciate the contentions of the appellants in this Court, it is necessary to trace the history of the West Bengal Health Service and the events which have occurred till date which have a bearing on the said contentions. Prior to 1958, the Health Service of the State of West Bengal consisted of different cadres, viz., (i) West Bengal Higher Medical and Health Services (Gr.I); (ii) The West Bengal Higher Medical and Health Services (Gr. II); (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 Officers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 lime and its resolution passed in 1973 which in terms stated that the leaching staff of all departments of a medical college shall be whole-time and non-practicing . The policy was also largely in conformity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Rules, 1993 (the 'Rules') and the West Bengal Health Service (Pay and Allowances, Superannuation and Pension) Rules, 1993. It may be mentioned here that the Special Leave Petitions from which the present appeals 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 Government to constitute the new WBHS that the matter was adjourned then till 9th February, 1993. This was without prejudice to the contentions of both 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 appellants have advanced their arguments challenging the provisions both of the Act and the Rules. 4. 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. (2) Section 9 of the Act is violative of Article 19(1)(g) of the Constitution, since i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -administration which is non-practicing. (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 seniors. (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. (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-practicing 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-practicing institutions. However, those who held non-teaching posts in such institutions on conditions of practice are g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no provision either under the Act or the Rules (o transfer such doctor back to any other Unit. In other words, such doctor loses his right to practice forever. This provision is likely to be utilized for victimisation. (15) There is a contradiction between the 4th the 5th proviso of 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-practising 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 to exercise any option under Section 12 shall be appointed to a teaching post in the WBMES even if they do not have requisite teaching qualifications. Even factually there are 6100 such doctors whereas the teaching posts do not exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 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 particular 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. 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 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 basic training and were qualified to be appointed as teachers and in particular to those who had also been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Act were not given to them and they had sought clarifications from the Government whether they would he given their said ranks in the WBMES. But no clarifications were forthcoming. They are entitled to a fresh opportunity 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 to have been denied the opportunity to exercise their option, since they were asked to exercise the option before WBHS was constituted. 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 to work under the control of their junior officers appointed as Superintendents of the said hospitals. (vii) Whereas under new WBHS, the hierarchy is created for Public Health-cum-administration Unit to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers 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 postgraduate 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. 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 privileges voluntarily, can continue to enjoy the same under Section 27 of the Act. Those who are enrolled on the Indian Medical Register are not compelled to seek service either private or public. However, once they seek employment, they have to abide by the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth Service and have subjected themselves to its terms and conditions, one of the terms being that they will have no right to practice privately. This being the case, it is difficult to see how the decision in question is relevant to the facts of the present case. 6. 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 practicing privately, the contention has only to be stated to he rejected. In 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 members of the Service constituted under the Act including the WBMES who are prohibited from practicing privately. As has been pointed out earlier, since 1958 to 1965 no member of the former WBHS whether he held the teaching or non-teaching post, was allowed to practice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 is not on the freedom to practice 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 profession irrespective of the fact that he has voluntarily accepted restrictions on his said right in consideration of other rights, as in the present case. In (he circumstances, 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 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 State 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 are bound to abide by it, being a condition of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and research is not essential. Hence, there is nothing unreasonable in prohibiting practice for the members of the WBMES while not prohibiting it for the members of the WBHS. 7. The third contention which seeks to attack the provisions of Section 9 on the ground that it is violative of Article 14 of the Constitution 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 the 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 same terms and conditions of service. The important term and condition of service of both is the right to practice 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have the duty of teaching, they are not required to devote their time to study and research as the teacher-doctors are, although every doctor whether teacher or non-teacher, is expected to remain reasonably abreast of the general developments in medical science. The non-teacher doctor when he practices privately outside his duty hours only carries on the same kind of work which he docs during his duty hours. He does not have to change the nature of his work. Hence when the privilege of practicing privately is extended to him, when it need not be withheld from him, the work in the Government hospitals need not necessarily suffer. However, the Government has, under Rule 10(2) of the Rules, taken care, as stated above, to reserve to itself the power to withdraw even that privilege if the Government finds that on account of the facility given to practice privately, the work in the hospitals is affected. The privilege further is extended only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g posts are given option either to join WBMES or WBHS, on their 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 Government cannot be expected to create as many hierarchical posts in the new WBHS as there were in the teaching faculty in the former WBHS. 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 that the Specialists will not be posted at institutions mentioned in items (a), (b) and (f) of Schedule II of the rules which are rural primary health centers and block primary health centers, rural hospitals and medical colleges and other teaching institutions declared to be non-practicing institutions. Thus Rule 7(3) in terms protects the Specialist' interests by providing that they will be posted only at institutions mentioned in (c), ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rules governing the former WBHS stood repealed and the new Rules viz., 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 10 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 force. 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 practicing to the non-practicing posts. In view of the said position, there is no conflict between Section 6(2) and Rules 8 and 10 of the Rules. It is true that the last proviso to Section 6(2) states that persons holding non-teaching posts on terms and conditions of practice in the institutions which are declared non-practicing under the Act have a right to opt for practice or non-practice without any change of post or designation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts in the said Service. Hence, the same has to be rejected. 10. The sixth contention is advanced against the posting orders dated 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, there is nothing to show that the appellants have suffered any prejudice on account of the said orders. The fact remains 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 at 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, 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 not have been transferred to WBHS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding upon the exigencies of the service. The Public Health-cum Administration Unit of the WBHS has only non-practicing 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-practicing 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 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 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 at least 5 years' experience as a Medical Officer or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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 State Government. Thus all the three categories belong to separate classes which have nothing in common with either of the two 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 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 are declared as non-practicing ones. To those who held non-teaching posts in such institutions with the condition of practice, it gives an option for posts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as non-practicing 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 practice or a right to a practicing post. Consistent with the scheme of the Act, It merely provides that the persons who held non-teaching posts with the condition of practice earlier may be transferred to a practicing post as far as possible since they are not given an option to join the WBMES. That, however, does not mean that the said Section confers on the holders of the non-teaching post a right to practice or a right to a practicing post. There is thus no discrimination between those who held teaching posts and those who held non-teaching posts., 13. The twelfth 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 former teacher-doctors opting for the WBHS. In the WBHS excluding its Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 3700 is the minimum basic pay attached 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 practice 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 practicing posts to the non-practicing posts. The WBHS consists of both the said posts. Rule 10 of the Rules is, therefore, non ultra vires Section 6(2) of the Act. The fourteenth contention has also been dealt with earlier. The contention that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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-Administration Unit which is an integral part of the WBHS. While the 4th proviso generally states that they will 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. 14. 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 case may be in the WBMES. Such doctors are those who were holding non-teaching posts in the former WBHS. Section 14(2A), therefore, 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot all the posts in the WBHS are practicing posts. The privilege to practice 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 Government is 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 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 experience 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 to the patients in the hospitals attached to the teaching institutes. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer, Assistant Professor, Reader, Associate Professor, Professor and Principal. One may venture and suggest a hierarchy in the WBHS, such as Medical Officer, Senior Medical Officer, Junior Specialist, 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 arc not created in the two Services, the Act or the scheme under it is bad in law. 17. The nineteenth contention is directed against the non-extension of the option to the non-leaching 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 non-teaching posts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also not given the option to join WBMES and, therefore, the Act and the Rules are 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. 18. There is also no merit in the twentieth contention either, 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. In the first instance, the introduction of the rule of Pay to Post does 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 with them their seniority as well as their salary. If in the former WBHS, senior member failed to earn promotions, there is nothing wrong if the junior members of the service who were promoted to the higher posts, start gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a non-practicing service or would remain with the former WBHS in which there were some and not all posts with the privilege of private practice. The Act itself further made it clear that the two services, viz., the WBMES and the WBHS may be constituted on different dates. The Act had also incorporated in it all the important features of the new WBHS such as the Constitution of a separate Public health-cum-Administration as a separate Link, Government's right to transfer the member of the WBHS to any post including the post in the Public Health-cum-Administration Unit which has all non-practicing posts, the 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 practicing, the continuation of a person appointed in the cadre of the new WBHS on the same terms and conditions as were in force immediately before the coming into force of the Act etc. It is, therefore, difficult to understand 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. (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. (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. (vi) The grievance that the former teacher-doctors who exercised their option for the new WBHS have been posted in non-teaching hospitals where they are place to work under the control of their junior officers appointed as Superintendents of the said hospitals has been specifically denied by the State Government. It has been pointed out that each and every doctors who has been transferred to various non-teaching hospitals is holding independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the second proviso 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. It is, however, difficult to understand as to how such a grievance can be made in the present appeals which seek to challenge the vires of the Act 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 centers which do not have the required infrastructure to utilize their expertise, the learned Counsel for the State Government has assured us that such cases if any would be reviewed by the State Government provided the persons concerned first join the posts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to private practice; (ii) They were liable to be transferred to any post where private practice was no permissible. 26. 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. 27. 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. 28. In view of the deteriorating standard of medical education in the State and in order to improve its quality the Government of West Bengal decided, as a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f them agreed about the pitiable situation of medical education. Their main complaint was that teachers were mostly busy in their 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 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 state of affairs, amongst which were: (a) Effective implementation of separate teaching cadre should be done immediately and proper infrastructure and superstructure be created for its function. (b) Teaching cadre must be made non-practicing. No medical personnel with practicing facilities will be allowed to be attached in a medical college 30. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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 appointed to 'he post to which he is deemed to have exercised his option. 36. 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-practicing institution. Upon such declaration, the right to indulge in private practice will cease. 37. 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: (1a) By a person holding non-teaching post; (1b) Such option could be exercised within a period of 90 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. (iii) If the option is not so exercised, he can be transferred to any other hospital on such terms and conditions for practice. 38. Sections 7 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisos states that if the persons holding administrative post in the former West Bengal Health Service who did not exercise any option shall be deemed to have exercised the option either for West Bengal Health Service or for Public Health-cum-Administration respectively. 47. 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. 48. Section 14 talks of recruitment to all teaching posts through Service Commission. The Proviso deals with fixation of quota. Sub-section (2A) of this Section which came to be introduced (by amending Section West Bengal 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. 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. 49. By a Notification d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Health centers, Rural Hospital or Teaching hospital as mentioned in items (a), (b) of (f) Schedule II. 56. Rule 8 is positive in its terms. It states that persons posted in rural health centers, rural hospitals and teaching hospitals shall be engage in private practice. In contradistinction, Rule 9 says that such of those belonging to West Bengal Health Service and who hold posts in (i) all specialized 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 option is exercised in this regard. Here again, the qualification of private practice is not conferred as of right but only a privilege since notwithstanding 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 is confirmed in Rule 10. 57. Rule 11 states the consequences should a doctor opt for private practice lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would only lead to deteriorating standard. 60. At this stage, duties of the teachers may be emphasised. Every teacher-doctor must endeavour to make his institution a brighter institution - a fragment of Heaven on earth, an El dorado of peace, 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 make it. Without a band of devoted men of medicine who are inspired by a holy zeal, an institution with the paraphernalia of modem 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 turned out. But it is only when there are handicaps mocking at enterprise should the human spirit triumph and establish that the will is an all-conquering force. The greatest men of medicine of the past and the present who have profoundly influenced men's minds have been indomitable spirits who have struggled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the status of the doctor is not protected and, therefore, the Act and Rule 7 are arbitrary, unreasonable, 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 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 hierarchy in contradistinction to the Education Service or the Public Health Administrative Unit of West Bengal Health 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel that the combined effect of Sections 6, 9, 10 and 11 is to protect private practice which is taken away under Rules 9 and 10. These Sections, in our considered view, provide for total prohibition of private practice in the 13 institutions. Even prior to the impugned Act private practice was allowed to holders of some posts purely on and experimental measure; nor again, was 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. 67. With regard to Section 12 it has already been noted as to what exactly is the scope of 4th and the 5th provisos. 68. 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. In the absence of exercise of option they are deemed to belong to the West Bengal Health Service or public Health-cum-Administration Unit. Therefore, to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied) (ii) Whether there is a fundamental right to practice 74. No Government doctor can claim right to private practice. Even otherwise, it is a reasonable restriction in the interest of public as held by the High Court of Allahabad in Dr. Y.P. Singh v. state of U.P. At pages 449-59 it is stated thus: It 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 do not find any merits in this contention. The petitioners do not give (service) 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 public benefit. The right of the petitioners to practise the profession 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 practicing his prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has been cognizant 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 attention from them than those who do not possess such means and resources. It was also said that hospital equipment, medicines, laboratory test facilities and the like are diverted and utilized for the treatment and care of the patients in whom the teachers of the Medical Colleges are interested in private side. The fact that the petitioners' private earnings would be adversely 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 here in above submitted to the government furnish sufficient evidence to come to the conclusion that private practice by the medical practitioners employed in State service would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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