DR. SUKUMAR MUKHERJEE, DR. SYED ABDUL MOMEN, DR. RAM KRISHAN DUTTA ROY, DR. TAPAN DAS CHATTERJEE, DR. SAIBAL GUPTA AND HEATH SERVICE ASSOCIATION WEST BENGAL AND ANOTHER Vs. STATE OF WEST BENGAL AND OTHERS

JUDGEMENT

(1.) All the writ petitions are heard analaogously and disposed of by this judgment.

(2.) The writ petitioners belong to the medical profession arid some of them are eminent doctors in their respective fields of medical streams. One writ petition has also been filed by the Health Services Association. All the writ petitions challenge the West Bengal State Health Service Act, 1990 and the Rules framed or Notification issued thereunder as ultra vires the Constitution of India," null and void and all the writ petitions revolve round this vital prayer and a decision on the above point wall answer the challenge-either way. It is not necessary to summarise the writ petitions of each and every petitioners but the arguments of the learned Counsels will sufficiently place the challenge throw of by them to the West Bengal State Health Service Act, 1990 (henceforth referred to as the "Act of 1990' or 'the impugned Act'). A galaxy of learned Counsels appeared for the different petitioners and I propose to summarise their submissions.

(3.) The case of the writ petitioners, Dr. Sukumar Mukherjee, Dr, Syed Abdul Momen ana Dr. Ramkrishna Dutta hoy as projected by Mr, S. S. Ray, Mr. Dipankar Gupta, Mr. Ajit Panja assisted by Mr. S. Pa. along with their juniors. According to them the Act of 1990 and certain Rules framed thereunder are violative of Articles 14 and 19(1)(g) and repugnant to Art. 254 of the Constitution. The principal point of controversy is the total prohibition of private practice 'by the petitioners who also teach in the State Medical colleges and Hospitals which is sought to be brought about by the impugned Act because the right to private practice of those doctors existed prior to coming into force of the impugned Act on 25th May, 1990. Their further case is than on 22nd Jan., 1958 the State Government promulgated the West Bengal Health Service (Cadre, Pay and Allowance) Rules 1958 by which different cadres in the Health Service existing prior to 1st Jan., 1958 were unified and designated as the West Bengal Health Service. Under Rule 7 all posts were made non-practising with effect from 1st Jan., 1958 except in some, cases. Under Rule 27 power was conferred upon the Governor to relax the provisions of any of the Rules in such circumstances as may be considered necessary. In 1962 the Government of West Bengal constituted an Expert Committee to make recommendations regarding reorganisation of the Cadre of Health Services in West Bengal. After due consideration of the Expert Committee's recommendation and under Rule 27 the Government by Order dated 1st April, 1965 made 7 all posts except as shown in Annexure 'I' of the said order, in the unified, cadre of the Health Service as practising posts and the posts shown in Annexure 'I' were purely administrative posts and posts concerned with preventive or public health work. By Order of 1965 some restrictions were imposed with regard to the private practice, such as, the Medical Officers shall be eligible for private practice during the hours when they were not required to attend the Hospitals or Institutions; the private practice would not be undertaken within the precincts of Hospitals or Institutions; such private practice must not interfere in any manner with the duties of the Medical Officers; and the Medical Officers in spite of private practice would have to be available for duties in Hospitals or Institutions whenever necessarily. The Medical Officers with Special Selection grade were debarred from private practice after the Order of 1965. The above position continued till the West Bengal State Health Service Ordinance, 1990 was promulgated and thereafter replaced by the Act of 1990. Hie Government attempted to rescind the Order of 1965 by Memorandum dated 8th June, 1982 and to amend Rule 9 of the Rules of 1958 by Notification dated 8th June, 1982. But the same was challenged in a wit petition and was stayed by the High Court and the writ application is still pending. A Committee of the West Bengal Legislative Assembly constituted in 1989 made a report on Medical Education. This Committee consisted of 23 Members out of which 5 were Doctors and 18 Politicians. A draft report was placed before the committee on 3rd March, 1990 it it appears that the report was presented to the Assembly on 23rd March, 1990. According to the petitioners these in dates are vital because the West Bengal Health Service finance, 1990 was promulgated on 7th Feb., 1990 and tee West Bengal State Health Service Act, 1990 is ad verbatim reproduction of the Ordinance. The thrust of the petitioners in on the point that the Act vas conceived before the report f the Subject Committee ms born.