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

- **Citation:** [1993] Supp. 1 S.C.R. 339
- **Court:** Supreme Court of India
- **Decided:** 1993-07-27
- **Case number:** Civil Appeal No. 3394 of 1993
- **Bench:** P.B. Sawant Ands. Mohan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sukdmar-mukherjee-etc-etc-v-state-of-west-bengal-and-anr-11958
- **Pages:** 70

## Headnote

Service Law:
West Bengal Health Service Act, 1990-Section <>-Prohibiting Private
practice by members of West Bengal Medical Education Servicr-No such
prohibition in respect of members of West BengaNfealth Service and holders
of contractual' post . .-Classification-Reasonableness of the restriction-Whether violative of Articles 14 and 19(J)(g) of the Constitution of
India.
A
B
c
Section 4(3)--Govemment's power to transfer a person opting for D
Health Service to non-practising post in Public Health and Administration
Unit-Whether bad on the ground that it is likely to be utilised for victimisation.
Section 6(2 }-Doctors holding teaching posts and doctors holding nonteaching posts in institutions declared as non- practising institutions-Distinction-Whether discriminatory.
Sections 12 & 14 option-Subsequent Constitution of West Bengal
Health Se1vice after the teacher-doctors exercised option to join the new
?Jedical Education Se1vice or to hold non-teaching post in new Health
Service-Whether. Jeprived the doctors from exercising their option effectively--Non-:exrension of option to doctors holding non-teaching posts-Whether
discriminatory and violative of Art. 14 of the Constitution-:PromotionPanet-Non- teaching tfoctors inipanelled for proniotion-Not giving option
to join Medical Education Se1vice---Whether rende1' the Act and Rules bad.
Section 14(2-A)--Appointment of non-teaching doctors of the Janner
Health Se1vice to tea'ching posts in the new Medical Education Service---Expression 'shall'--To be constlued as directmy.
E
F
G
Section /&--Act not applicable to H01iora1y and Emeritus Professors,
Ex-Management' Teachers, and Teachers bf!lpnging to Dentist1y-Wl1ether H
339
340
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A · disc1in1inato1y.
West Bengal State Health Se1vice Rules, 1993: Rule 5(ii}--Orders of
transfer issued before the expiry of 30 days from coming into force of
Rules-Whether ma/a fide exercise of power.
B
Rules 7, 7(2)--Not providing equivalence of status/post/designation to
teaching doctors opted for Health Service-Whether arbitrary and violative of
Articles 14, 19(1)(g) of the Constitution of India.
Rules 8, Jr>-E.xercise of option for new Health Service by doctors
C holding non-teaching posts in teaching institutions-posting to non-practising
posts-Wlzetherpennissible-Whether ultra vires S.6(2) of the Act.
Rules 9, ](}-Private practice-A p1ivilege and not a right.
Constitution of India, 1950: A1ticles 14, 16 and 19(1)(g}--West Bengal
D State Health Service Act, 1990/Rules, 1993--Sections 4(3), 6(2), 9, 12, 14,
14(2-a), 18/Rules 5(ll), 7, 7(2), 8, 9 and JO-Whether violative of,
A1ticles 245 and 254-Legislative competenc~West Bengal State
Health Service Act, 1990--Whether repugnant to S.27 of the Indian Medical
Council Act, 1956-lncidemal encroachment by State Act-Whether denudes
E the State of its legislative competence.
Prior to 1958, the Health Service of the State of West Bengal consisted of different cadres. In 1958 the West Bengal Health Service(WBHS)
was constituted with a unified cadre of doctors under the West Bengal
Health Service (Cadre, Pay and Allowance) Ru,les, 1958. Under these Rules,
F. the doctors were classified into three categories viz. those engaged primarily in teaching along with duties at the hospitals attached to the teaching
institutions, those engaged on the curative side and attached w various
hospitals and medical centres and those who were primarily involved in
administrative work. Private practice for all doctors belonging to WBHS
G was totally prohibited.
In 1965 .the State Government passed an oriler relaxing the rule
which prohibited private practice, and permitted private practice in
respect of doctors occupying some of the posts in the WBHS subject to
certain conditions. Those who opted for private practice were to forego
H certain pecuniary benefits such as non- practising allowance. They were
-
S. MUKHERJEE v. STATE OF W.B.
341
alsn to submit their option in the prescribed fo

## Text

_Characters 0–39,901 of 174,532. This is a partial read: ask again with offset=39901 for what follows._

SUKDMAR MUKHERJEE ETC. ETC.
v.
STATE OF WEST BENGAL AND ANR.
JULY 27, 1993
[P.B. SAWANT ANDS. MOHAN, JJ,]
Service Law:
West Bengal Health Service Act, 1990-Section <>-Prohibiting Private
practice by members of West Bengal Medical Education Servicr-No such
prohibition in respect of members of West BengaNfealth Service and holders
of contractual' post . .-Classification-Reasonableness of the restriction-Whether violative of Articles 14 and 19(J)(g) of the Constitution of
India.
A
B
c
Section 4(3)--Govemment's power to transfer a person opting for D
Health Service to non-practising post in Public Health and Administration
Unit-Whether bad on the ground that it is likely to be utilised for victimisation.
Section 6(2 }-Doctors holding teaching posts and doctors holding nonteaching posts in institutions declared as non- practising institutions-Distinction-Whether discriminatory.
Sections 12 & 14 option-Subsequent Constitution of West Bengal
Health Se1vice after the teacher-doctors exercised option to join the new
?Jedical Education Se1vice or to hold non-teaching post in new Health
Service-Whether. Jeprived the doctors from exercising their option effectively--Non-:exrension of option to doctors holding non-teaching posts-Whether
discriminatory and violative of Art. 14 of the Constitution-:PromotionPanet-Non- teaching tfoctors inipanelled for proniotion-Not giving option
to join Medical Education Se1vice---Whether rende1' the Act and Rules bad.
Section 14(2-A)--Appointment of non-teaching doctors of the Janner
Health Se1vice to tea'ching posts in the new Medical Education Service---Expression 'shall'--To be constlued as directmy.
E
F
G
Section /&--Act not applicable to H01iora1y and Emeritus Professors,
Ex-Management' Teachers, and Teachers bf!lpnging to Dentist1y-Wl1ether H
339
340
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A · disc1in1inato1y.
West Bengal State Health Se1vice Rules, 1993: Rule 5(ii}--Orders of
transfer issued before the expiry of 30 days from coming into force of
Rules-Whether ma/a fide exercise of power.
B
Rules 7, 7(2)--Not providing equivalence of status/post/designation to
teaching doctors opted for Health Service-Whether arbitrary and violative of
Articles 14, 19(1)(g) of the Constitution of India.
Rules 8, Jr>-E.xercise of option for new Health Service by doctors
C holding non-teaching posts in teaching institutions-posting to non-practising
posts-Wlzetherpennissible-Whether ultra vires S.6(2) of the Act.
Rules 9, ](}-Private practice-A p1ivilege and not a right.
Constitution of India, 1950: A1ticles 14, 16 and 19(1)(g}--West Bengal
D State Health Service Act, 1990/Rules, 1993--Sections 4(3), 6(2), 9, 12, 14,
14(2-a), 18/Rules 5(ll), 7, 7(2), 8, 9 and JO-Whether violative of,
A1ticles 245 and 254-Legislative competenc~West Bengal State
Health Service Act, 1990--Whether repugnant to S.27 of the Indian Medical
Council Act, 1956-lncidemal encroachment by State Act-Whether denudes
E the State of its legislative competence.
Prior to 1958, the Health Service of the State of West Bengal consisted of different cadres. In 1958 the West Bengal Health Service(WBHS)
was constituted with a unified cadre of doctors under the West Bengal
Health Service (Cadre, Pay and Allowance) Ru,les, 1958. Under these Rules,
F. the doctors were classified into three categories viz. those engaged primarily in teaching along with duties at the hospitals attached to the teaching
institutions, those engaged on the curative side and attached w various
hospitals and medical centres and those who were primarily involved in
administrative work. Private practice for all doctors belonging to WBHS
G was totally prohibited.
In 1965 .the State Government passed an oriler relaxing the rule
which prohibited private practice, and permitted private practice in
respect of doctors occupying some of the posts in the WBHS subject to
certain conditions. Those who opted for private practice were to forego
H certain pecuniary benefits such as non- practising allowance. They were
-
S. MUKHERJEE v. STATE OF W.B.
341
alsn to submit their option in the prescribed form declaring that they had A
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 measures.
After an experience of about 25 years since the relaxation of tlw rule
prohibiting private practice, the State Government came to the conclusion
that the system was not operating satisfactorily; particularly the quality of
medical education in the State had deteriorated considerably as the doc·
tors holding teaching posts and indulging in private practice were found
largely absent from class-rooms and were found neglecting their duties in
the hospitals attached to the teaching institutions.
In order to arrest the deteriorating standards of medical education
B
c
in the State and to improve the same, the State Government decided to
bifurcate the existing unified service known as the West Bengal Medical
Education Service (WBMES) for doctors exclusively engaged in teaching D
\\
1ho \\'ould be debarred from private practice. This policy was in accord
\\ith the views expressed by the Medical Council of India and the National
Health Policy declared by the Government of India, in regard to private
practice. Consequently the West Bengal State Health Service Act, 1990 was
passed. Under this Act, two separate services were proposed to ~e c~nw
stituted viz. West Bengal Medical Education Service(WBMES) and West E
Bengal Health Service(WBHS).
On and from 25.5.1990, WBMES was constituted under Section 3 of
F
the Act. It gave 90 days' time to the doctors holding teaching posts to
exercise option either to continue to hold the teaching posts or to join
WBHS. Pursuant io the option given about 1200 doctors exercised their
option for WBMES. Out of the remaining 200 teacher-doctors, 5 teacher·
doctors and the West Bengal Health Service Association filed writ petitions
before the High Court, challenging the validity of the West Bengal Health
Service Act, 1990 on the grounds of lock of legislative competence, and as
being violative of Arts. 14 and l9(1)(g) of the Constitution of India. The G
validity of the Act was upheld by a Single Judge and the Division Bench
confirmed the same.
The present appeals were filed against the judgment of the High
Court, upholding the validity of the Act. During the pendency of these
appeals, the State Government framed the new West Bengal Health Service H
342
SUPREME COURT REPORTS [1993] SUPP. l S.C.R.
A Rules, 1993 and the West Bengal Health Service (Pay and Allowance,
Superannuation and Pension) Rules, 1993. The appellants challenged
before this Court the validity of these Rules as well.
The appellants contended that the Act was repugnant to the Indian
Medical Council Act, 1961 in so far as it prohibited private practice by
B doctors and therefore was void by reason of Art. 254 of the Constitution
of India; that Section 9 was violative of Articles 14 and 19(1) (g) of the
Constitution; that since the status of the appellant' after they exercised
option to join WBHS was not protected, the Act and Rule 7 became
unconstitutional; that Rules 8 and 10 were ultra vires S.6(2) of the Act; that
the posting orders issued to the appellants even before the expiry of 30
C days from the coming into force of the Rules was mala fide exercise of
power; that there had been discrimination in the age of retirement in that
it was 58 in respect of members of WBHS while it was 60 for members of
WBMES with an option for re-employment upto 65 years; that S.4(3) of
the Act was arbitrary and unconstitutional; that Rule 7(1) was arbitrary
D and discriminatory; that Rule 10 was ultra vires Section 6(2) of the Act;
that lhe seniority of the members of WBMES has not been protected due
to the introduction of "Pay to Post" Rule and by the abolition of "Pay to
Person" rule under the former WBHS; and that the non-constitution of
WBHS prior to calling upon the doctors who held teaching posts to
exercise their irrevocable one time option without having any opportunity
E to weigh the pros and cons of both the services, was mala fide.
F
Upholding the validity (,f i.'.e provisions of the West Bengal Health
Service Act, 1990 and the provisions of the West Bengal Health Service
Rules, 1993 and dismissing the appeals, this Court
HELD: Per Sawant, ].,
1.1. The provisions of Section 27 of the
Indian Medical Council Act have been enacted, prescribing privileges of.
the persons who are enrolled on 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
G enrolled on the Indian Medical Register are not compelled to seek service
either private or public. However, once they seekemJ?loyment, they have to
abide by theterms and conditions of the employment. Section 27 does not
prevent persons enrolled on the Indian Medical Register from seeking
employment on such terms and conditions as they may choose to secure
it; nor does it prohibit agreeP.lent of service which entail giving up of the
H privileges mentioned in it. [366-E-G]
S. MUKHERJEE v. STATE OFW.Jj.
343
1.2. The object of the West Bengal Health Service Act, 1990 is to A
create different Health Services and to regulate the conditions of service
of the members of the said services with a view to improve their functioning
and utility. The Act does not regulate the rights and privileges of the
members of the medical profession in general. The Act has obviously been
enacted under entry 41 of the State List which empowers the State to
constitute State Public Sen1ices and read with Article 309 of the Constitu·
tion, vests power in the State Government to lay do\vn conditions of service
B
of the members of the Services so constituted. Hence the subject of the two
legislations and the area occupied by them are different. The Act incidentally restricts the privileges of those who are enrolled on the Indian
Medical Register. There is thus no conllict between the provisions of the
C
two and hence there is no repugnancy between the two under Article 254
of the Constitution. [366-H; 367-A-C]
H.S. S1i11ivasa Raghavadwr etc. etc. v. State of Kamataka & Ors., AIR
(1987) SC 1518, distinguished.
D
2.1. The Act does not prohibit private practice by medical prac·
titioners as such. The Act is not enacted to regulate practice of the medical
practitioners in general. It is only those medical practitioners , ... ho choose·
to become members of the Services constituted under the Act including the
WBMES who are prohibited from practising privately. [367-H; 368-A]
E
2.2. The right to private practice is not given to the Government
Medical Officers in most of the places since it conflicts with the duties of
such officers as Government servants. Article 19(1)(g) of the Constitution
confers on citizens right to practise any profession, or to carry on any
F
occupation, trade or business for their individual benefit. It does not create
an obligation to do so. It is for the citizen to exercise or not his right.
Further, the Article does not oblige a citizen to practise any particular
occupation, business or trade. He is free to follo\\' any occupation and on
such terms and conditions a3 he chooses. It does not prevent him from G
accepting its discipline including such rights and obligations as may flow
from it. As in the present case, those u·ho join the Government service with
the full knowledge that they will have no right to practise the profession
privately, agree to give up their right as private practitioners in considera·
tion of the security, status and privilege as a Government servant. The
Government service is also an occupation and those \\'ho choose it, cannot H
I
344
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A complain of its discipline or insist upon pursuing it on their tern1s. Nnlu1dy
compels them to join it if they want to practise their profession privately.
TI1ey are free to leave it at any time. The restriction imposed by Section 9
of the Act is not on the freedom to practise the medical profession but on
such practice while one continues to be the member of the State Service.
B Article 19(1)(g) dues 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. Jn the
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
C of the general public. The present Act constitutes health services for the
State. The State has a right to recruit officers to such service on such terms
and conditions as it deems desirable to make the service 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
D continue in the State Service is a reasonable restriction on the ollicers of
the State being in the interest of the general public. Those who join the
Service are bound to abide by it, being a condition of service voluntarily
sought by them. [368-F-H; 369-A-D]
23. Section 9(2) also makes provision for grant of non- practising
E allowance to the members of the WBMES which is obviously in lieu of the
right to private practice. This allowance is of course in addition to the
salary, other allowances and perks and privileges including a higher superannuation age of 60 years and re-employment upto the age of 65 years. It,
therefore, cannot be said that Section 9 contravenes the fundamental right
p of the members of WBMES to practise their profession privately. Thus
there is a hierarchy of posts in the WBMES, higher superannuation age
with a right to re-employment, non-practising allowance etc. These advantages are not available to the members of the WBHS. Also, the purpose
of the two services is different. While the WBMES is constituted for
imparting medical education and incidentally to take health-care of the
G patients in the hospitals attached to the teaching institutions, the WBHS
is constituted to make available the service in the Government hospitals
to the members of the public. According to the present review of the
situation and the considered opinion expressed by the expert bodies,
private practice does interfere \\ith the work of the teacher-doctors both
H in the class -room as well as in the hospital. There is, therefore, a need to
S. MUKHERJEE v. STATE OFW.B.
345
stup tt,e same in the interests of both the improvement of the standards A
of the medical education as well as the betterment of the health-care
services in the teaching hospitals. The ban on private practice will make
available to the teacher- doctors the time required for reading and research which is absolutely essential for their main profession as teachers.
For the members of the WBHS, the time for reading an research is not
that essential. Hence, there is nothing unreasonable in prohibiting practice
for the members of the WBMES, while not prohibiting it for the membe~s
of the WBHS. [369-E-H; 370-A-D]
B
3. The holders of contractual posts are professors, assistant professors, surgeons or physicians in the teaching institutions. They are engaged
C
on contractual basis because the Government finds that otherwise their
services which are essential for running the teaching institutions cannot
be procured, and for want of their services, the teaching institutions would
suffer. The persons so appointed are limited in number and they "ill
continue to serve till the expiry of the tenure of their contracts. There D
cannot, therefore, be any comparison between the members of WBMES
which is a regular service constituted by the State and the holders of the
contractual posts which are not governed by any service rules but by the
terms of their contracts and who are engaged for specific purposes. Section
18 of the Act, in terms, states that the provisions of the Act shall not apply
to such persons. It cannot, therefore, be stated that Section 9 of the Act is E
discriminatory and violative of the provisions of Article 14 of the Constitution because, it makes distinction between the members of WBMES and
the members of the WBHS, and those holding the contractual posts.
[372-F]
4. The constitution of the WBMES in obviously of a different genre
than that of the WBHS. The hierarchy of the posts in the teaching service
is bound to be different from that in the health service. It is unreasonable
to expect that the designations, hierarchy and the qualifications for the
posts would be the same in the two Services. This being the case, it is
unprc1fitable to search for equivalence in posts in the two services. Since
those holding teaching posts are given option either to ,ioin WBMES or
WBHS, on their opting for the WBHS, they cannot complain if they are
posted, according to their qualifications as Medical Officers or Specialists.
The Government cannot be expected to create as many hierarchical posts
F
G
in· th~, new WBHS as there were in the teaching faculty in the former H
346
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A WBHS. Hence, there is no discriminatory treatment being accorded to.the
former teaching doctors on their exercising option for the WBHS on
account of the fact that the so-called equivalent posts are not created in
the WBHS to accommodate them. [372-G, H; 373-A, B, E]
B
5. On the day the Act came into force, the new WBHS was not formed
and the Rules ·governing the new WBHS were not in existence. On the
formation of tl1e 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. West Bengal Health Service Rules, 1993 came into
force, and have become applicable to the new WBHS by virtue of Section
C 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 when
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 withdram1 at any time. The incumbents of the
D posts were also transferable from the practising to the non-practising
posts. In view of the said position, there is no conflict between Section 6(2)
and Rules 8 and 10 of the Rules. [374-C-E]
6. 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
E thereafter. If they had in fact exercised their option to join the WBMES
during the period given to them under Rule S(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
F WBMES during the stipulated period and had they done sn they could not
have been transferred to WBHS. It cannot be said that merely because the
transfer orders were issued before the expiry of the stipulated period, the
transfer orders were a mala fide exercise of power. They could not have
been given effect to, before the expiry of the stipulated period, and the right
of the appellants to exercise their option within the stipulated period was
G not taken away by the said orders. [375-H; 376-A-B]
7. The two services being distinct and their duties and functions
being different, ditterent services conditions can be prescribed tt-,r the
members of the two services. The WBMES is constituted separately to
H i1nprove the <]Uality of the medical education in the State. Ordinarily, the
S. MUKHERJEE v. STATE OF W.B.
347
members of the teaching staff in all the disciplines retire at the age of 60 A
years and that is for a valid reason. In »iew of the knowledge acquired and
the research made in the particular subject in which the teachers are
specialised in a discipline like Medicine, there is nothing wrong, if tl,te
State Government should desired to utilise the services of the teacher-doctors for a longer period, in the public interest. That is why the superannuation age of the members of the WBMES is fixed at 60 years as against
the super-annpation age of 58 years fixed for the members of the WBHS
including for those posted in the public Health-cum-Administrative Unit.
It is with the same intention that a provision has also been made under
Section 16, for re-employment of the members of the WBMES upto 65
years of age after superannuation. [376-C-F]
B
c
8. All posts in the WBHS do not carry the privilege of private
practice. There are some posts which do not carry such privilege. Further,
even those posts which carry the privilege of private practice, do so only
temporarily since the State Government has reserved to itself the powq D
to withdraw the said privilege at any time. The Act and the Rules also make
it clear that the members of the WBHS are liable to be transferred from
the practising posts to the non-practising posts and vice versa depending
upon the exigencies of the service. The Public Health-cum-Administration
Unit of the WBHS has only non- practising posts. It cannot therefore be
said that a person who opts for the WBHS should not be transferred to E
the post in Public Health-cum-Administration Unit because it is a nonpractising post. Since there is no right of private practise attached to any
post, it cannot be said 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.
F
Transfers are a matter of executive policy and are made as dictated by the
exigencies of the service. Section 4(3) incorporates no more than the said
policy. [376-G-H; 377-A-B]
9. It is difficult to understand as to how a grievance can be made G
against declaring all those who have put in qualitying period of sen•ice as
Specialists. This is bound to happen in any Service and seniors cannot
make any grievance that the juniors who qualify are also called Specialists
along with them. The fact that both juniors and seniors are declared as
Specialists does not in any way lessen the importance of the senior
Specialists. The mel-e number of years in service does not give anyone a H
348
SUPREME COURT REPORTS [ 1993] SUPP. 1 S.C.R.
A higher stat:is in service. The status depends upon the quality of the
person's work. It may happen that the c1uality of a junior's work may be
heller than that of' his senior. {377-F-HJ
B
10. The "Emeritus Professors" as the expression itself denotes, are
eminent teacher-doctors who have retired from the Health Service. They
are paid for their service a token conveyance allowance of about Rs.250
per month. They are therefore, a class in themselves and cannot be
compared with the regular members of the \VBMES or the \VBHS. The
Dental Doctors or Surgeons belong to a separate service known as the
West Bengal Dental Service and their service conditions are determined
C by the rules of the said Service. They are also, therefore, a distinct class.
As regards the Ex~n1anagement teachers \\1ho are about 10 to 15 in number
at present, their service conditions a_re governed by the provisions of
Taking-Over of the Mamigem'ent Act under which the management of some
private institutions was taken over by the State Government. Tims all the
D three categories belong to separate classes which have nothing in common
with either ot' the two services, viz., the WEMES or the \VBHS. It can,
therefore, be hardly saicl that the Act is discriminatory because it does not
apply to the said three classes. (378-B-D]
11. Consistent with lhe scheme of the Act, Section 6(2) merely
E provides that the persons who held non-teaching posts with the conditions
of practice earlier may be transferred to a practising post as far as possible
since they are not given an option to join the \VBMES. That, however, does
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. 1l1ere is thus no
F discrimination between tlwse who held teaching posts and those who held
non-teaching posts. (379-F-G]
12. In the \VBHS excluding its Public Health-cum- Administration
Unit, the only posts arc those of Medical Ollicer and Specialists. The
G former teacher-doctors when they opt for the cadre of the \VBHS would
either be Medical Olliccrs or Specialists depending upon their qualifications s1iecified in Rule 7(2). The Public Health and Administration of the
former \VBHS 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 AdH 1ninistration would no\Y occupy the same posts and designations in the new
•
S. MUKHERJEE v. STA TE OF W.B.
34LJ
Unit and those who belonged to the former Pub:ic Health and Administra; A
lion would now occupy the same posts and designations in the new !Jnit.
Hence the mere fact that the members of the former Public Health and
Administration shall be appointed to the equivalent posts in the new !Jnit
does not spell out discrin1ination in tludr faYour as against the teacher-doc·
tors 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 is also no similarity between former teachers who opt for the
WBMES and those who opt for the WBHS. The former could continue in
the teaching service and, therefore, would continue in the same posts with
the same designations. In their case also there is no change in the duties
B
c
and functions. The latter would, howner, have to be appointed either as
Medical Officers or Specialists depending upon their qualifications. As
regards the non-teaching doctors of the former WBHS, they would also
occupy either of the said two lJOsts in the new WBHS depending upon their
qualifications. Their cases also cannot be compared with the former
teacher-doctors who opt for the WBHS and a grievance be made that D
w·hereas the former non-teaching doctors have the protection of their ear·
lier posts and designations or have an appointment to the equivalent posts
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) on that account. Nor is the said Rule ultra E
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 Specialists when they joiu the 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. [380-A-H]
13. If a transfer is motivated by a desire to victimise any person, the
Specific transfer can always be challenged in a court of law. However, the
provision viz. Section 4(3) cannot be struck _do'vn on the ground that
although it is valid, it is likely to be used for an unauthorised purpose .
F
[381-H; 382-A] G
14. Proviso 4 to Section 12 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 H
350
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A option for the Public Health-cum-Administration Unit of the new 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-Administration Unit which is an integral part of the WBHS. While the 4th
B proviso generally states that they will be posted in the new WBHS, the 5th
proviso specifies the part of the Service to which they \\ill be posted. In
view of the 5th proviso, the 4th proviso is redundant and has survived only
as a piece of careless drafting. (382-B-D]
15. Keeping in view the object of the Act and the purpose for which
C it has been made, Section 14(2A) has to be read to mean that the nonteaching 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 Rule made thereunder.
(383-D-E)
D
16. The Medical Cour1cil of India passed a resolution in 1973 insist·
ing that the teaching stall' or'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 medical personnel. The
E 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 things, 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 evidenee before the State
Legislature of the deteriorating standards in the medical education in the
F State. Further, even if 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 exclu.sive jurisdiction of
the State Government. (384-B-E]
G
.H
f
17. Promotions, transfers and affording options are the exigencies
and the incidence of service. There is no vested right of an employee in
them. The provisions of the Act or the Rules which bring about such
change are not vitiated or rendered illegal on that account. Further, the
mere empanelment for being appoint to the higher post does not vest the
persons empanelled mth a right to be posted to the higher post. Hence the
S. MUKHERJEEv. STATEOFW.B.
351
grievance made that some of the non-teaching doctors who had been A
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
bad in law has no merit in it. In fact, there is no data on record to
substantiate the allegation that a large number of doctors appointed to the
posts ol" basic teachers in non-clinical discipline and who did not possess
requisite eligibility qualifications "iz., post-graduate degree in the relevant
subject, have been provided with an option to join the WBMES. (386-B-D]
18. 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 WBMES they carry with them their
seniority as well as their salary. If in the former WBHS, senior members
failed to earn promotions, there is nothing wrong if the junior members
of the service who were promoted to the higher posts, start getting higher
pay in the new WBMES which pay goes with the higher posts to which the
B
c
juniors stand promoted. It is difficult lo understand as to how the higher D
posts in the former WBHS were carrying less salary then 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 the higher posts, there seems to be something
redically wrong with the pay structure in the former WBHS. It may only
mean that in the WBMES, pay- scales have been rationalised as they ought E
to be. 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 "p>ty to persons". The two
services are different and, therefore, their service conditions are governed
by different rules. The seniority in the teaching stream or attainment of F
the senior post in the teaching stream depends on the dates of appointment
on the teaching side. (386-E-H; 387-A-B]
19. The Act itself made it clear that the two services, viz., the
WBHMES and the WBHS may be constituted on different dates. The Act
had also incorporated in it all the important features of new WBHS such G
as the constitution of a Public Health- cum-Administration as a separate
Unit, Government's right to transfer the members of the WBHS to any
post including the post in the Public Health-cum-Administration Unit
which has all non- practising posts, the prohibition of transfer of a person
appointed to th< WBHS to the WBMES except under Section 14(1) and H
352
SUPREME COURT REPORTS [1993] SUPP. I S.C.R.
A 14(2A), the existence of posts in the WBHS "ithout the privilege of practising, the continuation of a person appointed in the cadre of the new
WBHS on the same term and conditiions 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
B WBHS, those who had held teaching posts in the former WBHS had no
effective opportunity to exercise their option. [387-G-H; 388-A-B]
Per Mohan, J. (Concuning):
1.1. If the entire purport of the Act and the Rules is to reduce private
C practice to a privilege such a right cannot be insisted upon as a right 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. Once can even take judicial notice of the
fact that the medical facilities in rural areas are scarcely available. As
citizens of free country the rural populatioil of India would legitimately
D exp<•ct the Government to give reasonable medical facilities. Such of those
in the villages and ru1·al areas could only turn to these primary health
centres or rural hospitals. The heavy dependence of the rural population
on these medical oentres should require the doctors to engage his full
attention. It' private practice is allowed the unfortunate rural folks would ·
E he deprived of even the small facility of primary health centres or rural
hospital. [400-C-E]
1.2. The non-teaching doctors, who have the privilege of private
practice, do so in view of the undertakings and declarations given by them
while exercising the option that they shall not acquire any claim for
F appointment only to practising post in future and 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 doctors cannot be made to
wriggle out and insist upon private practice as of right. Prior to the Act
G the former West Bengal Health Service constituted a single unified service.
Under the terms and conditions of that service there was no right to
private practice. [401-H; 402-A-C)
2. Where a teacher-doctor who had not opted to join WBMES is
transferred to WBHS, there is no loss of seniority at all, nor even, is there
H any loss of pay. The important point is that he is not posted to the same
S. MUKHERJEEv. STATEOFW.B.
353
post which he occupied earlier but he is transferred to a senior post A
carrying a higher status with full protection of seniority and emoluments.
Besides, in the WBHS there is no hierarchy in contradistinction to the
Education Service or the Public Health Administrative Unit of the Service.
If redly, 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 WBHS could be posted. [402-D-G]
3. The two services viz. WBHS and \'VRMES could be created at
B
different times. Therefore, as a matter of policy, the Act seeks to bifuracate C
the existing health service into two separate services viz. doctors engaged
in teaching and doctors engaged on the curative side and public health and
administration, not concerned with teaching. Therefore, it is obvious that
the teaching doctors belonging to WBMES woul1 be debarred from private
practice. [402-G, H; 403-A, R]
4. The Public Health-cum-Administration Unit is a part of the
Health Service. If transfers are waranted in the exigencies of serice and in
public interest it cannot be stated that the power cor.ferred under Section
4(3) of U1e Act is arbitrary. Then again, if private practice is only a
D
privilege and not right, one can have hardly any complaint. [403-D]
E
5. 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 belong to a separate service known as the
West Bengal Dental Serv.ice. Their service condition is governed by the
terms and condUions of the said senrice. It is well-known that the services
of Emeritus Professors or eminent teacher-doctors who have retired from
the Health Service are utilised in view of their eminence and they are being
paid an honourarium. Therefore, there is no discrimination at all.
[403-F, G]
F
6. Section 6, 9, lll and 11 provide for total prohibition of private G
practice. Even prior to the Act private practice was allowed to holders of
some posts purely on an experin1entai 1neasure; nor again, was any right
to continue in a post "'hich W'onld enable a doctor to have private practice.
Jn the exigencies of service he could ah\o'ays be transferred to a post \Vhere
private practice is impermissible. [403-H; 404-A]
H
354
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A
7. The 4th proviso to Section 12 deals with person connected with
Public Health and Administration. In the former West Bengal Health Service those who had not exercised their option would be accommodated in the
Health Service in phases while the 5th Provio deals with those holding
teaching posts and administrative posts in the former West Bengal Heal~h
B 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, two different categories of Persons are dealt with. The situation
is brought about by non-exercise of the option. [ 404-C-D]
8. Section 14(2A) of the Act uses the word "shall", which no doubt,
C cannot be construed as mandatory but it should be dire~.tory as has been
rightly held by the High Court. (404-D-E]
9. One who had joined in tbe "Teaching Stream" earlier will 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
D he is entitled to the scale of his designation. There is no anomaly or
discrepancy or unreasonablaness in this. (404-H]
10. The prescription of different ages of retirement viz. 58 years m
WBHS and 60 years for WBMES and a possibility of extension upto 65
E years, do not constitute any discrimination since they belone to different
services. [405-A]
11. The challenge to the provisions of the Act and the Rules fails, as
they merely try to restore the old position of banning private practice with
reference to holders of posts in the 13 teaching institutions.