A medical practitioner under the Employees' State Insurance Scheme is not an employee of the State Government and is therefore not entitled to the protection of Article 311 of the Constitution.

( 1 ) THIS appeal is from the Judgment and order of Mitter. J. dated 27 July and 24 August 1965 discharging the Rule obtained by the appellant.

( 2 ) THE appellant obtained the Rules requiring the respondent to show cause as to why a writ of Mandamus should not go to recall, rescind and withdraw the order dated 9 October, 1963 and why a writ of Certiorari should not be issued quashing the order dated 9 October, 1963.

( 3 ) THE appellant's case in short is that the appellant was appointed an insurance medical practitioner under the State of West Bengal by virtue of provisions contained in Employees' State Insurance Act. 1948. The appellant further contended that it was a permanent post under the State Government. On 9 October 1963 a letter was written by the Deputy Secretary to the Government of West Bengal addressed to the appellant that "in exercise of the powers conferred by Sub-clause (1) of Clause 11 of Schedule I to the West Bengal Employees' State Insurance (Medical Benefit) Rules, 1965, the Governor has been pleased to direct that the services of Dr. N. G. Ghose under the Employees' State Insurance Scheme, West Bengal, will not be required by the Government after the expiry of three months from the date of receipt of the order by the Insurance Medical practitioner concerned. "

( 4 ) THE appellant impeached the order dated 9 October, 1963 to be first, a violation of the provisions contained in Article 311 of the Constitution and secondly, that the termination of service was in infraction of Rules 21 to 25 contained in the West Bengal Employees' State Insurance Medical Benefit Rules. The second ground was allowed to be added pursuant to an application of the appellant dated 27 May, 1964 to be found at page 106 of the paper book. The second contention was based on the allegations that in the month of May, 1963 some complaint was made by an insured person and the termination of service was on the ground of misconduct or negligence because of those complaints and therefore, Rules 21 to 25 should have been followed.

( 5 ) THE learned Judge was pleased to arrive at two conclusions. First, on an analysis of the Act and the Rules the appellant was not in the employment of the State Government and was not folding a post under the State Government. Secondly Article 311 of the Constitution was not applicable.

( 6 ) THE contentions on behalf of the appellant with regard to the appellant holding a civil post were based on sections 3, 4, 21, 57, 58, 92, 95 and 96 of the Employees' State Insurance Act, 1948 and Rules 4, 8 and 9 of the West Bengal Employees' State Insurance Rules and paragraphs 7 and 11 of the first schedule to the Rules and paragraph 6 of Schedule 3 to the Rules. It is not out of place to mention here that the Employees' State Insurance Act contemplated in sections 95. 96 and 97 Rule making power. Section 95 conferred power on the Central Government to make Rules. Section 96 conferred power on the State Government to make Rules. Section 97 conferred power on the Corporation to make regulations. The Corporation is called the Employees' State Insurance Corporation and Section 3 of the Employees' State Insurance Act, 1948 hereinafter referred to as the said Act enacted the establishment of the Corporation and further enacted that the Corporation shall be a body corporate known by the name of Employees' State Insurance Corporation having perpetual succession and a common seal and shall by the said name sue and be sued. The constituents of the Corporation are nominees of the Central Government, representatives of the State Government and other representatives to be nominated by the Central Government or the State Government and the Director General of the Corporation is the ex-officio member of the Corporation.

( 7 ) THE appellant became an Insurance Medical Practitioner. The system of Insurance medical practitioners is to be found in the Rules made by the State Government under Section 96 of the said Act. The