Judgment:
A.K. Basheer, J.
1. This writ petition has been filed, professedly in public interest, seeking to quash Clause Nos. 13 and 22 in Ext.P4 order dated September 10, 2009 issued by the Health and Family Welfare (S) Department under the Government of Kerala. By the impugned clauses, the Government proposes to ban private practice for all doctors attached to Medical Colleges in the State with effect from October 1, 2009. Simultaneously, the working hours of teachers/doctors in Medical Colleges and hospitals have been rescheduled as from 9 A.M. to 4 P.M., instead of 8 A.M. to 1 P.M.
2. It may at once be noticed that petitioners have filed this writ petition on September 17, 2009 even before the impugned clauses in Ext.P4 order are brought into force. In the said order, it has been clearly mentioned that Clauses 13 and 22 would come into force with effect from October 1, 2009. Obviously, therefore this writ petition is premature. Anyhow, we will refer to the primary contentions raised by the petitioners since they have got a case that the impugned clauses in Ext.P4 will adversely affect the public at large.
3. Petitioners, who hail from Alappuzha district, contend that they have been receiving medical treatment from an Associate Professor of Medicine attached to the Medical College Hospital at Alappuzha for the last more than six years. Petitioner No. 2, the wife of petitioner No. 1, is under the treatment of a Consultant Cardiologist also attached to the Medical College Hospital. Petitioners have been visiting these two doctors at their residence after their duty hours in the hospital. According to the petitioners, there are thousands of patients like them who avail of the services of these highly qualified specialist doctors attached to Medical Colleges in the State. These senior specialist doctors who are reputed to be highly skilled in their respective field of specialty, have been doing yeoman service to the society. Petitioners have highlighted the gross inadequacy in the facilities now available in Primary Health centres, Taluk and District Hospitals, etc. run by the Government. It is also contended by the petitioners that in most of the districts in the State, especially in Aleppy, private hospitals are not at all well equipped and these hospitals can never make available the services of specialist doctors. In short, it is contended by the petitioners that by imposing a ban on private practice of senior consultants and surgeons working in Medical Colleges the Government is doing great disservice to the public.
4. The contention of the petitioners is that if the proposed ban is imposed by the Government on private practice of doctors attached to Medical Colleges, right guaranteed to thousands of patients like them under Article 21 of the Constitution of India would be violated. Every citizen has got a right to get medical treatment from doctors of his/her choice. The Government cannot impose any restriction on such rights. The Government, by banning private practice is clearly trying to make an inroad to the freedom conferred on a citizen in this regard under Article 21 of the Constitution of India.
5. Petitioners have launched another frontal attack on Ext.P4 order, which apparently should have come from the doctors, if they are aggrieved. It is the contention of the petitioners that going by Rule 50 of the Kerala Government Servants Conduct Rules, 1960, the ban on private practice now sought to be imposed on the doctors employed under the Government is a clear infringement of the rights conferred on those doctors. Petitioners seek the aid of Article 21 of the Constitution for the benefit of the doctors also.
6. In this context, it will be profitable to refer to Clause 13 and 22 in Ext.P4 order, which are extracted hereunder:
Clause 13: Non Practicing Allowance:
At present the doctors in Medical Education Service are allowed private practice. This has led to a situation where the service of doctors is not available in the Medical Colleges after O.P. timings. This has also affected the quality of teaching and research work in the colleges. Several committees appointed by the Government have recommended banning of private practice for Medical college faculty by giving adequate compensation. Institutions like RCC and Sree Chitra Tirunal Institute in the state have already put such ban in practice many years ago. Considering the above, Government are pleased to sanction Non Practicing Allowance for Medical College doctors @ 25% of the Basic Pay (Band Pay + Academic Grade Pay), with D.A. Payable on the Non Practicing Allowance also. The Private Practice stands banned for all the Medical College Doctors and all the existing orders / circulars with respect to Private Practice of doctors shall stand superseded as far as the Medical College doctors are concerned. This shall come to effect from 01-10-2009. The orders on banning of private practice and sanctioning of Non Practicing Allowance in the case of Dental College Doctors will be issued separately.Clause 22: The working hours:The working hours of teachers in Colleges and Hospitals covered by this Government Order will continue to be 9 A.M. - 4 P.M. Director of Medical Education shall issue separate orders regulating OP/Casualty and other clinical duty timing as required.
7. It can be seen from a perusal of Clause 13 extracted above that the Government has, while imposing the ban on private practice of the doctors in Medical Education service, granted them Non Practicing Allowance at the rate of 25% of the Basic Pay (Band Pay + Academic Grade Pay) with D.A. payable on the Non Practicing Allowace also. It is true that the working hours of these doctors attached to Medical Colleges have been rescheduled between 9 a.m. to 4 p.m. Ext.P4 order has been issued by the Government to bring in revision of scales of pay and allowances, Career Advancement Scheme and other service conditions for the teaching staff of Government Medical/Dental/Nursing/ Pharmaceutical Science Colleges in the State.
8. Clauses 13 and 22 have been incorporated in the said order as part of the policy of the Government to streamline the medical education service and also keeping in view the orders issued by the Ministry of Human Resources Development and Department of Higher Education under the Government of India. The recommendations of the University Grants Commission are also stated to have been kept in view. It is further revealed from Ext.P4 that discussions were held between the Government and the organizations of teachers in the Medical Education service.
9. We do not propose to deal with the legality or the underlying wisdom of clauses 13 and 22 of Ext.P4 order at this stage, since in our view these Clauses cannot be subjected to challenge at the instance of the petitioners. The constitutional freedom envisaged under Article 21 as projected by the petitioners cannot be the touch stone, in the peculiar facts and circumstances of this case. Clauses 13 and 22 in Ext.P4 are not liable to be quashed on the plea that imposition of ban on private practice of the teaching faculty in Medical Colleges will impair petitioners' right to get treatment from these doctors. No materials have been brought to our notice to show that petitioners will be deprived of the services of these doctors when they will be available in the hospitals during their duty hours. Similarly, in our view, the challenge raised by the petitioners against Clauses 13 and 22 with the aid of Rule 50 of the Kerala Government Servants Conduct Rules 1960 is totally misconceived.
10. As regards the locus standi of the petitioners to institute the petition, learned Senior counsel has cited before us the decision in S.P. Gupta v. Union of India and Anr. : 1981 (Supp) SCC 87. It may be said that petitioners have the locus to institute this petition. But the short question is whether in the peculiar facts and circumstances of this case, the so called grievance highlighted by the petitioners can stand scrutiny of this Court, and that too in a matter which is largely concerned with the service conditions of doctors working in medical colleges. As mentioned earlier, Ext.P4 order has been issued primarily to revise the pay scales of doctors in Medical Education Service. We will deal with the above aspect a little later.
11. Our attention has been invited to the following decisions of the apex court also. Pt. Parmanand Katara v. Union of India and Ors. : AIR 1989 SC 2039; Sukumar Mukherjee v. State of West Bengal and Anr. : AIR 1993 SC 2335 and Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. : AIR 1996 SC 2426. In Parmanand Katara (Supra), the issue that was highlighted by the petitioner, who claimed himself to be a human right activist, was the plight of injured victims of motor accidents, who most often were denied emergency medical aid in various hospitals. Their Lordships, after referring to ethics of Medical Profession and also the provisions contained in the Medical Council Act 1956, issued certain directions to the State Governments and the Union Territories. The members of the medical profession were reminded of their duty and obligation, especially in the light of Article 21 of the Constitution to extend medical assistance for preserving life.
12. In Sukumar Mukherjee (supra), the question that arose for consideration was whether the relevant provision contained in West Bengal State Health Service Act, 1990 prohibiting private practice by doctors engaged in teaching, was repugnant to Section 27 of the Medical Council Act. The court answered the above question in the negative. As has been indicated by us earlier, we do not propose to deal with the question whether or not Clause 13 of Ext.P4 is repugnant to the provisions contained in the Medical Council Act for the obvious reason that such a challenge has not been raised by the doctors who, if at all, are likely to be affected by the said clause. We leave that issue to be considered in an appropriate case.
13. In Paschim Banga Khet Mazdoor Samity (supra), the issue raised was about the failure of Government hospitals to provide timely emergency medical treatment to persons in need. While issuing certain directions/guidelines, the apex court observed thus:
It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional, obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.
Having carefully considered the various contentions raised by the petitioners we have no hesitation to hold that the present writ petition filed by the petitioners is totally misconceived and premature. Therefore, the writ petition is dismissed.