SUKUMAR MUKHERJEE ETC. ETC. versus STATE OF WEST BENGAL AND ANR.

Citation: [1993] SUPP. 1 S.C.R. 339 · Decided: 27-07-1993 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Dismissed
cites 1 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

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 restric-
tion-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 victimisa-
tion. 
Section 6(2 }-Doctors holding teaching posts and doctors holding non-
teaching posts in institutions declared as non- practising institutions-Distinc-
tion-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 effective-
ly--Non-:exrension of option to doctors holding non-teaching posts-Whether 
discriminatory and violative of Art. 14 of the Constitution-:Promotion-
Panet-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---Ex-
pression '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 con-
sisted 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 primari-
ly 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 y
Excerpt shown. Read the full judgment & AI analysis in Lexace.