1. Challenge to the West Bengal State Health Service Act, 1990, which bifurcated the health service into teaching and non-teaching cadres, prohibiting private practice for teacher-doctors. (Para 1 , 2 , 21 )
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1993 Supreme(SC) 607
SUPREME COURT OF INDIA
P. B. SAWANT AND S. MOHAN, JJ.*
Sukumar Mukherjee, Appellant
Versus
State of W.B. and another, Respondents.
Civil Appeal Nos. 3394 to 3398 of 1993 (arising out of S. L. P. Nos. 4176, 4192, 4184, 4185 and 5146 of 1992)
Decided on 27-7-1993.
WITH
Syed Abdul Memon, Appellant
Versus
State of W.B. and another, Respondents.
AND
Saibal Gupta, Appellant
Decided on State of W.B. and another, Respondents.
AND
Ram Kishan Dutta Roy, Appellant
Versus
State of W.B. and another, Respondents.
AND
Health Services Association and another, Appellants
Versus
State of W.B. and others, Respondents.
Advocates:
A.K.GANGULY, A.K.SEN GUPTA, DIPANKAR GHOSH, G.RAMASVAMY, GAUTAM MITRA, Indra Sawhney, KAPIL SIBAL, N.R.CHAUDHARY, R.F.NARIMAN, SAMARJIT GUPTA, Saria Chandra, SITESH SINHA, SOM NATH MUKHERJI, SOMNATH CHATTERJI, U.N.BANERJI, V.N.DWIVEDI
A.K.GANGULY, A.K.SEN GUPTA, DIPANKAR GHOSH, G.RAMASVAMY, GAUTAM MITRA, Indra Sawhney, KAPIL SIBAL, N.R.CHAUDHARY, R.F.NARIMAN, SAMARJIT GUPTA, Saria Chandra, SITESH SINHA, SOM NATH MUKHERJI, SOMNATH CHATTERJI, U.N.BANERJI, V.N.DWIVEDI
Government doctors have no fundamental right to private practice. Prohibiting private practice for medical teachers to improve education standards is a reasonable restriction under Article 19(1)(g) and does not violate Article 14, as service conditions are matters of state policy.
Headnote:
Constitution of India - Article 252, 19(l)(g), 14, 309, 254, 11 - West Bengal State Health Service Act, 1990 - West Bengal Health Service Rules, 1993 - Rule 8, 9 - Indian Medical Council Act, 1956 - Section 27, Section 6(2) - Appeals against verdict - Both the learned single Judge and the Division Bench in appeal, by their decisions in question have upheld the validity of West Bengal State Health Service Act, 1990 which was challenged mainly on three grounds, viz.,(a) State Legislature did not have the competence to pass the Act and hence the Act was passed in violation of Article 252 of the Constitution - (b) Act imposes an unreasonable restriction on the fundamental right of the writ petitioners to practise guaranteed by Article 19(l)(g) of the Constitution - (c) Act was arbitrary and unreasonable and, therefore, violative of Article 14 of the Constitution - Held, While agreeing to the above dictum it may only be added that the Health Service of the Government deals with very sensitive issues - Services are concerned with the well-being of poorer sections of community - State Government has endeavoured its best to implement the National Health Policy and the decision of the Medical Council of India. It has also given shape in the form of this Act to the recommendations of the Standing Committee on Health of the West Bengal Assembly - Impugned orders of transfer are not in any way actuated by mala fides but have been passed to effectuate the provisions of the Act the only policy being to provide proper medical facilities as stated above - All civil appeals stand dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
Table of Contents
2. The Act is challenged as repugnant to the Indian Medical Council Act, 1956, and violative of Articles 14 and 19(1)(g) of the Constitution. (Para 4 , 5 )
3. The court found no repugnancy as the Acts occupy different fields; restrictions on private practice for government servants are reasonable conditions of service. (Para 5 , 6 , 7 , 8 , 9 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 22 , 23 )
4. Conditions of government service, including prohibitions on private practice, are reasonable restrictions and do not violate the fundamental right to practice a profession under Article 19(1)(g). (Para 6 , 23 )
5. Appeals dismissed with costs; pending challenges to the Act and Rules directed to be dismissed. (Para 26 , 27 , 28 )
6. Is a state law prohibiting private practice by government doctors repugnant to Section 27 of the Indian Medical Council Act, 1956?
No. The Central Act regulates the rights and privileges of medical practitioners generally, whereas the State Act regulates the conditions of service for government employees. Because they occupy different legislative fields, there is no conflict or repugnancy. (Para 5 )
7. Does a prohibition on private practice for government doctors violate the fundamental right to practice a profession under Article 19(1)(g)?
No. Article 19(1)(g) does not oblige a citizen to practice on their own terms. Those who join government service voluntarily accept its discipline and conditions, including restrictions on private practice, in exchange for the security and status of government employment. (Para 6 , 23 )
8. Is the distinction between teaching and non-teaching medical services regarding private practice permissible under Article 14?
Yes. The classification is reasonable because teacher-doctors must devote more time to research and study to maintain medical education standards, whereas non-teaching doctors' duties differ and do not require the same level of academic devotion. (Para 7 , 22 )
9. Can the state prescribe different retirement ages or transfer doctors to non-practising units as a matter of policy?
Yes. The state has the authority to determine service conditions, including superannuation age and transfers, based on the exigencies of service and public interest, provided such policies are not arbitrary. (Para 11 , 12 , 22 )
JUDGMENT
SAWANT, J.:—Leave granted in all the Special Leave Petitions.
This group of appeals is directed against the decision of the High Court dated 31st January, 1992 dismissing the appellants appeals against the verdict of the learned single Judge in a group of writ petitions. Both the learned single Judge and the Division Bench in appeal, by their decisions in question have upheld the validity of the West Bengal State Health Service Act, 1990 (the Act) which was challenged mainly on three grounds, viz.,
(a) that the State Legislature did not have the competence to pass the Act and hence the Act was passed in violation of Article 252 of the Constitution.
(b) the Act imposes an unreasonable restriction on the fundamental right of the writ petitioners to practise guaranteed by Article 19(l)(g) of the Constitution.
(c) the Act was arbitrary and unreasonable and, 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 of doctors under the West Bengal Health Service (Cadre, Pay and Allowance) Rules, 1958. These rules also do not appear to have been framed under Article 300 of the Constitution. Under these Rules, the doctors were classified into three broad categories, viz., (a) those who were engaged primarily in teaching along with the duties at the hospital to which the teaching institutions were attached, (b) those engaged on the curative side and attached to various hospitals and medical centres throughout the State and who were not engaged in teaching, (c) those who were primarily involved in administrative work.
No doctor was allowed to practise privately, whatever the category to which he belonged. Thus, private practice for Government doctors belonging to the WBHS was totally prohibited.
However, in 1965, the State Government passed an order relaxing the rule prohibiting private practice and permitted private practice to doctor occupying some of the posts in the WBHS subject to certain conditions. Those who opted for private practice had to forego certain pecuniary benefits such as non-practising allowance. They were further to submit their option in a prescribed form declaring that they had no claim or right as such to private practice and were liable to be transferred to any post in which private practice was not permissible. This step of allowing restrictive private practice was taken as a temporary and experimental measure. It was made clear that the position would be reviewed in the future in the light of the experience gained. Pursuant to the relaxation of the rule prohibiting private practice, those doctors who opted for private practice gave signed declarations and undertakings that they would not thereby deem to have acquired any right to private practice or appointment only to posts where private practice was permitted and that they were liable to be transferred to any post in the WBHS whether practising or non-pr
