Y P SINGH Vs. STATE OF U P

JUDGEMENT

(1.) By an order dated 28th Feb. 1978 the Government doctors were prohibited from private practice. The validity of that order was challenged by petitioners in these petitions. The two learned Judges, who heard these petitions, differed in their views, hence on 4th October, 1978 they referred the writ petitions for hearing to a third Judge. The matter was then listed before Hon'ble Mr. Justice C. S. P. Singh but before he could render his opinion, the Governor of Uttar Pradesh framed the Uttar Pradesh Government Doctors (Allopathic) Restriction on Private Practice Rules, 1978 under Article 309 of the Constitution. The petitioners then sought amendment of the writ petitions with a view to challenge the validity of the said rules. Hon'ble C. S. P. Singh J, referred the case back to the Bench for considering the amendment applications and the validity of the rules. The Bench allowed the amendment applications and permitted the petitioners to challenge the vires of the rules. The matter was then heard by the Division Bench consisting of Hon'ble K. N. Singh, and Hon'ble R. C. Srivastava. JJ.

(2.) It seems that the validity of the U. P. Government Doctors (Allopathic) Restriction on Private practice Rules, 1978 (for short, the Rules) was questioned before the Bench, inter alia, on the following grounds. (1) The Governor was not competent to frame Rule 3 placing restriction as it does not lay down any condition of service. (2) Rule 3 is void as it is repugnant to Section 20-A and Section 33 (m) of the Indian Medical Council Act, 1956. (3) Rule 5 which confers powers on the State Government to relax the rules in cases of undue hardship in any parties for case or cases is violative of Article 14 of the Constitution as it does not lay down any guiding principles, instead it confers arbitrary powers on the State Government. On point No. 1 the Bench held that the Governor is competent to frame rules imposing restrictions on a Government servant from carrying on any trade, business or practise any profession but such restrictions must withstand the test of Part. III of the Constitution. Rule 3 regulates the conditions of service of those medical practitioners who are in Government service and, according to the Bench, the purpose behind the rule is to achieve efficiency and discipline in public service hence the contention of the petitioners that Rule 3 did not regulate any condition of service was held to be misconceived. The plea of repugnancy as raised in the second point aforesaid did not find favour with the Division Bench and was rejected. It was held that the power of the Governor to frame rules under Article 309 of the Constitution is coextensive with the power of the State Legislature to make laws. Under entry 41 of List II the State Legislature is competent to make laws with respect to State Public Service "State Public Service Commission." The medical practitioners who are engaged in the service of the State Government fall within the expression "State Public Service", and, as such, the State Legislature is competent to make laws regulating conditions of service of medical practitioners engaged in Government service. Since the State Legislature has not enacted any law, the Governor under the proviso to Article 309 is competent to make rules regulating conditions of service of medical practitioners engaged in the Government service. Since the impugned rules are referable to Entry 41 of List II of the Seventh Sch. no question of repugnancy would arise. Further the Division Bench observed as under :-

(3.) The Division Bench thus held that "the Governor has validly framed these rules under the proviso to Article 309 of the Constitution regulating conditions of service of medical practitioners employed in Government service."