JUDGMENT A.M. Bhattacharjee, J. We are agreed that all the appeals, and all the writ petitions giving rise to them, must be dismissed, the cross-objections must be allowed and as a result the operating portions of the judgement appealed against must be confirmed with some variations now indicated in Judgement of my learned brother Ray, J. appearing hereafter. 2. My learned brother, with his usual alacrity offered to prepare the Judgement of the Court and handed over the draft, which, on my thorough and repeated scrutiny, appears to be an admirable piece of skill, industry and learning. Though, and this I say with respect, I do not agree with his enunciation of law on some matters, I have wholeheartedly agreed with the Order proposed by him and that is good enough for not coming out with a separate Judgement. The manner in which he has stated the law on some aspects of Article 14 has not, but the result of the application of law to the matters at hand has, earned my full concurrence. 3. For example, as to the approach of the Court to Legislation, Ray, J., has ruled for a rather favourable approach rewards primary legislations and a stricter approach to secondary ones. I would like to think that our approach in the main should be the same. Once we find a law, primary or secondary, to be unreasonable or arbitrary, whether from the point of view of the classification resorted to or even otherwise. we must strike it down. But since, for the reasons stated in his Judgement, I do not find any reason to hold tile primary legislation assailed in this case to involve unreasonble classification or unreasonableness on any score, I do not pursue the point any further. 4. We do not, as we must not, strike down any 'law primary or secondary or even administrative action. Whenever we can, but must do so only when we cannot but. Though everything old is not necessarily gold, nor everything new is golden, the old maxim Ut Res Magis Valeat Quam Pereat should govern us. If two views are possible, one in favour and the other against, the constitutionality or legality of a legislation, the initial and inherent presumption of constitutionality or legality in favour of the legislation must govern the matter and tilt the balance. If two views are possible, one in favour and the other against, the constitutionality or legality of a legislation, the initial and inherent presumption of constitutionality or legality in favour of the legislation must govern the matter and tilt the balance. Ray, J: In these appeal the West Bengal Health Service Act, 1990 is order challenge, along with several rules and notifications made by the West Bengal Government under powers conferred by 'the Act'. The appeals of the Health Association, Dr. Saibal Gupta and Dr. Sukumar Mukherjee were argued at length by Mr. Kashikanta Maitra, Mr. Nigam Kumar Chakraborty. Mr. Dipankar Prasad Gupta respectively. Mr. Siddbartha Sankar Ray also, with leave, argued the, case of Dr. Mukherjee for about a day. Mr. Ashoke Kumar Sen put in a very brief appearance one day in another (at least) appeal. For the State, arguments were principally advanced by Mr. Dipankar Ghosh but Mr. Somoath Chatterjee took over, by our leave, for appreciable spells at chosen moments. Though the wrir of Dr. Mukherjee was advertised under the principles of O.1 R.8, (The Statesman Calcutta 04.09.90) yet, even without that, we permitted full arguments by all so that our judgment might rest rather on decided points of substance' than on mere procedure. 2. By the Act the Medical Service Under the State is sought to be substantially changed. There are now about 8000 Government doctors in West Bengal. And, there are some thirteen medical institutions of the State which combine medical education facilities as well as hospital facilities. All these institutions are in the City of Calcutta. Apart from here the rest of the State bas comparatively negligible medical education facilities. There are three other medical education institutions outside Calcutta, like one at Bankura But there are many other hospitals for patient care, both in the metropolis and in the towns and villages all over the State. 3. The scheme' of the Act and the notifications already issued thereunder is to make these thirteen institutions altogether non-practising. The word non-practising' has now acquired a meaning in the State medical circles by long user. It means not practising for private fees. It does not mean not practising at all because even non-practising doctors practice medicine by looking after patients in discharge of their government jobs. 4. The word non-practising' has now acquired a meaning in the State medical circles by long user. It means not practising for private fees. It does not mean not practising at all because even non-practising doctors practice medicine by looking after patients in discharge of their government jobs. 4. The scheme of the Act is that these institutions would be manned by teacher doctors who would be non-practising Such teacher doctors would be about 1400 In number. The bulk of these would come, expectedly, from doctors who, are holding or have held in the past teaching posts. If they opt for a non-practising reaching post, they will be given such a post. Since the thirteen institutions are non- practising only these teacher doctors, or other teacher doctors otherwise recruited or appointed on non-practising terms can function in these institutions. These teachers, under the Act, Can also be given hospital or patient care duties. Under the notifications, such patient care at these institutions has already been entrusted exclusively to the teacher doctors. That is nothing new. The teachers at these institutions have all along also looked after patients. What is new is that all these teachers doctors at these institutions will now look after teaching and patient care, without any of them being in any manner involved In private practice, i.e. they will all be on purely non-practising terms. Dr. Mukherjee, for example, if he wants to continue teaching, will have to be on non-practising terms; if he does not want to give up his private practice, he will have to leave teaching, as well as the important institution where he is now posted; but he can remain in government service, 'if he so pleases, in the practising non-teaching cadre. Such remaining to doubt will not be worth much to an eminent doctor, because it will be at an Institution which has no teaching facilities and, is comparatively far less prestigious. 5. This brings us to the non-teaching practising cadre. After independence until 1958. West Bengal Government medical service was run only ort executive directions. In 1958 the first rules came, when Dr. B.C. Roy, himself a famous doctor, was the Chief Minister. Those rules in general m1de the government medical service non-practising. There were some 1959 rules also. Then whether because of the demise of Dr. Roy or not. After independence until 1958. West Bengal Government medical service was run only ort executive directions. In 1958 the first rules came, when Dr. B.C. Roy, himself a famous doctor, was the Chief Minister. Those rules in general m1de the government medical service non-practising. There were some 1959 rules also. Then whether because of the demise of Dr. Roy or not. and we need not inquire into that, a large scale relaxation came in 1965, when the service was made, in general, practising, with certain excepted posts. The relaxation was introduced as a temporary and experimental measure, with an idea of reviewing the situation later. No final commitment as to practising relaxation was made by the government. But the experiment went on year after 'year and the single unified medical cadre was largely allowed private practice until 1982, when by a memorandum dated 8.6.1982 the 1965 relaxation was sought to be withdrawn. 6. The withdrawal of practising permission was challenged in 1982 by a writ. Justice T. K. Basu granted an interim order of stay. The State did not appeal therefrom. The 196J experiment thus continued to operate until 90, when an Ordinance was promulgated, and then the Act was passed. The Act was amended within a few months of its being passed. It is in fact the amended Act that is under challenge. 7. The portions of the amended Act which have formed the major subject of argument are contained in the following extracts : GOVERNMENT OF WEST BENGAL LAW DEPARTMENT Legislative NOTIFICATION No. 889. L. 16th May, 1990.- The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information : WEST BENGAL ACT VII of 1990 THE WE5T BENGAL STATE HEALTH SERVICE ACT, 1990. (Passed by the West Bengal Legislature) (Assent of the Governor was first published in the Calcutta Gazette, Extra-ordinary, of the 16th May, 1990.) An Act to provide for the regulation of the recruitment, and conditions of service of persons appointed, to the State Health Service. Whereas it is expedient, in the public interest, to regulate the recruitment, and the conditions of service of persons appointed, to the State Health Service; It is hereby enacted in the Forty first year of the Republic of India, by the Legislature of West Bengal as follows: ..... 1. Short title and commencement. Whereas it is expedient, in the public interest, to regulate the recruitment, and the conditions of service of persons appointed, to the State Health Service; It is hereby enacted in the Forty first year of the Republic of India, by the Legislature of West Bengal as follows: ..... 1. Short title and commencement. - (1) This Act may be called the West Bengal, State Health Service Act, 1990. (2) it shall come into force on such date as the State Government may, by notification, appoint. 2. Definitions. - In this Act, unless the context otherwise requires (a) "cadre" means the strength of service or a part of service sanctioned by the State Government as a separate unit; (b) "former West Bengal Health Service" means the Weft Bengal Health Service in existence immediately before the coming into force of this Act; (c) "notification" means a notification published in the Official Gazette; (d) "prescribed" means prescribed by rules made under this Act; (e) "service" means the State Health Service (f) "State Health Service" means the West Bengal Medical Education Service, or the West Bengal Health Service, as constituted under section 3. 3. Constitution of State Health Service- (1) With effect from such date as the State Government may, by notification, appoint in this behalf, there shall be constituted the following State Health Services and different dates may be appointed for different services, namely : 1. The West Bengal Medical Education Service 2. The West Bengal Health Service. (2) The West Bengal Health Service shall includes cadre for Public Health cum Administration as a separate unit: 4. The West Bengal Medical Education Service 2. The West Bengal Health Service. (2) The West Bengal Health Service shall includes cadre for Public Health cum Administration as a separate unit: 4. Transfer from one service to another.-(1) No person appointed to the West Bengal Medical Education Service shall be transferred to the West Bengal Health Service: Provided that any person holding a teaching post in the basic level in the West Bengal Medical Education Service may exercise an option for the West Bengal Health Service on such terms and conditions as may be prescribed (2) No person appointed to the West Bengal Health Service shall be transferred to the West Bengal Medical Education Service: (3) Any person appointed to a post included in the West Bengal Health Service other than a post included in the cadre for Public Health-cum Administration as a separate unit, may be transferred to a post included in the cadre for Public Health-cum-Administration as a separate unit: (4) Subject to the foregoing provision of this section and the rules made under this Act, the State Government shall have the right to transfer any person from one post to another post: Provided that except on account of inefficiency or mis-behaviour or on his written request, no person shall be transferred to a post carrying less pay than the pay of the post held by him for the time being. 6. Medical Colleges to be non-pracising Institution.- (1) The State Government may, by notification, declare any undergraduate or postgraduate Medical College or other teaching institution together with the Hospital, if any, attached to such Medical college or institution to be a non-practising institution with effect from such dale as may be specified in the notification. (2) Upon such declaration; no person holding any post in such Medical College or other institution or the Hospital attached thereto on terms and conditions for practice shall be allowed to bold such post in terms and conditions for practice. (2) Upon such declaration; no person holding any post in such Medical College or other institution or the Hospital attached thereto on terms and conditions for practice shall be allowed to bold such post in terms and conditions for practice. Provided that any person holding a non-teaching post in such Medical College or other institution of the Hospital attached thereto on terms and conditions for practice may exercise an option for practice or non-practice without any change of post or designation within a period of ninety days from the date of coming into force of this Act or within such extended period as the State Government may by notification specify: Provided further that any such person who exercises option for non-practice shall be allowed time, not exceeding six months from the date of exercise of such option for winding up practice: Provided also that if any such person does not exercise any option or exercises option for practice, he shall, within a period of one year from the date of coming into force this Act, be transferred to a post in any other Hospitals on terms and conditions for practice. 9. Posts in cadre of West Bengal Medical Education Service to be non-practising.-(1) The posts included in the cadre of West Bengal Medical Education Service shall be non-practising. (2) Any person appointed to a post included in the cadre of the West' Bengal Medical Education Service may be granted such non-practising allowance as may be prescribed. 10. Posts in cadre for Public Health-cum-Administration as a separate unit of West Bengal Health Service to be non-practising -(1) The posts included in the cadre for Health cum-Administration as a separate unit West Bengal Health Service shall be non practising (2) Any person appointed to a post included in the cadre for Public Health-cum Administration as a separate unit of the West Bengal Health Service may be granted such non-practhing allowance as may be prescribed. 11. Persons appointed to posts' in West Bengal Health Service. 11. Persons appointed to posts' in West Bengal Health Service. other posts in cadre for Public Health cum-Administration as a separate unit, to continue in such posts.-Any person of the former West Bengal Health Service appointed to a post included in the cadre of the West Bengal Health Service, other than a post included in the cadre for Public Health cum Administration as a separate unit shall continue in such post on such terms and conditions as were in force immediate by before the coming into force of the Act. 12. Status of persons holding teaching posts or posts connected with Public Health or Administration, to former West Bengal Health Service. 12. Status of persons holding teaching posts or posts connected with Public Health or Administration, to former West Bengal Health Service. Any person who has held, or any person who holds immediately before the coming into force of this 'Act, a teaching post in the former West Bengal Health Service on terms and conditions for practice or non-practice, may exercise an option for the West Bengal Medical Education Service or the West Bengal Health Service in such manner as may be prescribed and thereupon such persons shall be appointed, or shall be deemed to have been appointed, as the case may be, to a post included in the West Bengal Medical Education Service or the West Bengal Health Service, as the case may be : The provisos are numbered by me for the sake of convenience (1) Provided that if any such person, appointed or deemed to have been appointed to a teaching post in the basic level in the West Bengal Medical Education Service fails to be selected for promotion or recruitment to the post of Lecturer in the West Bengal Medical Education Service within a period of five years from the date of his appointment to a teaching post in the basic level in the West Bengal Medical Education Service he shall, notwithstanding anything contained elsewhere in this Act, be liable to-be transferred to a non-teaching post in the West Bengal Health Service: (2) Provided further that a person exercising option for the West Bengal Medical Education Service and a person selected for appointment to the West Bengal Medical Education Service shall, upon appointment to a teaching post in the West Bengal Medical Education Service, be required to perform duties in a Hospital in addition to his duties as Teacher of the discipline concerned having such designation as may be prescribed: (3) Provided also that any person holding a post connected with Public Health or Administration in the former West Bengal Health Service immediately before the coming into force of this Act, may exercise an option for the West Bengal Health Service or the cadre for Public Health Court Administration as a separate unit of the West Bengal Health Service in such manner as may be prescribed. (4) Provided also that the persons holding posts connected with Public Health or Administration in the former West Bengal Health Service' immediately before the coming into force of this Act, who do not exercise any 'option as aforesaid, shall be deemed to have exercised option for the West Bengal Health Service but the posting of such persons in the' West Bengal Health Service shall be made in phases. (5) Provided also. that the persons holding teaching posts and the persons holding administrative posts in the former West Bengal Health Service immediately before the coming into force of this Act, who do not exercise any option under this section shall be deemed to have exercised option respectively for the West Bengal Health Service and the cadre for Public Health cum Administration as a separate unit of the West Bengal Health Service. 14. (2A) Any person of the former West Bengal Health Service who may not be required to exercise any option under section 12, shall be appointed to a teaching posts at the basic level, or to a post of Lecturer or to any other teaching post, as the case may be, in the West Bengal Medical Education Service. 18. Act not to apply in certain cases.- The provisions of this Act shall not apply to any person not belonging to the farmer West Bengal Health Service but holding a teaching post in any undergraduate or post graduate Medical College another teaching institution or in any Hospital attached to such Medical College or Institution on terms and conditions as might be agreed upon by that Government prior to the coming into force of this Act, and such persons shall continue in such post on the same terms and conditions after the coming into force of this Act. 19. Saving. -All rules, orders, and notifications made or issued by the State Government from time to time under the proviso to Article 309 of the Constitution of India or under any other law for the time being in force, applicable to the persons appointed to the former West Bengal Health Service and continuing in force immediately before the coming into force of this Act, shall, after the coming into force of this Act, continue in force in so far as such rules, orders or notifications are not inconsistent with the provisions of this Act until they are repealed or amended. 19A. 19A. Transitory provision -Notwithstanding anything contained elsewhere in this Act, if the State Government is of opinion that it is necessary so to do in the public interest, it may, by order, elevate or promote any person holding a teaching post in the West Bengal Medical Education Service to a higher rank in such manner, and subject to such terms and conditions, as may be prescribed. Provided that no such order shall be made after the expiry of a period of three years from the date of coming into force of this Act. 8. The following portion of the statement of objects and reasons was also referred to more than once: "The existing West Bengal Health Service consists of about 8.000 (eight thousand) Medical Officers. Because of its huge size, the efficiency of the service could not be improved to the expected height as expected from such services. The weakness lies in efficiency of Medical Officers occupying Administrative posts as well as manning of the Teaching posts, specially in the dearth disciplines, and also quality of medical teaching and hospital care. Normally, Medical Officers do not like to join such post~ from the Unified Cadre of the West Bengal Health Service. 2. It has, therefore, been proposed that the existing Health Service should be bifurcated and a separate service called West Bengal Medical Education Service should be created for the medical teachers only. The said service shall comprise of about 1,400 one thousand four hundred) teaching posts. The service should be made compulsorily non-practicing with the expectation that the standard of medical teaching and care to the patients in different Medical Colleges and Hospitals including other teaching hospitals will be improved and there will be no dearth of teacher in most of the disciplines within a near future. 3. It has also been proposed that there should be a Public Health cum Administration Unit within the food of the West Bengal Health Service. The Administration Unit will consist of about 500 (five hundred) Medical Officers who will solely be Administrators. It is envisaged that with training and experience, such group of Medical Officers would prove themselves as good Administrators in the proposed unit which will be entirely non-practising. The existing West Bengal Health Service Cadre, excepting 'be proposed Public Health cum Administration Unit, will, therefore, be consisting of the Medical Officers who will be involved in patients care only." 9. It is envisaged that with training and experience, such group of Medical Officers would prove themselves as good Administrators in the proposed unit which will be entirely non-practising. The existing West Bengal Health Service Cadre, excepting 'be proposed Public Health cum Administration Unit, will, therefore, be consisting of the Medical Officers who will be involved in patients care only." 9. It will be seen from the above that the former West Bengal Health Service is stated in the objects to be bifurcated. Section 3 seems to say that this bifurcation would result in the medic.) service and the new Health Service (with its non-practising Administrative Unit) From all this it may seem that the former unified service will wholly disappear. That is not so at all. The former service has been argued by the State to be still very much in existence. The case of the State is that the former service is expressly saved by s. 19 and that there is nothing in the Ace which either expressly or impliedly abolishes the former service. Thus the former service holders will continue as such unless there is any change called for by the Act or the notification issued thereunder. This argument assumes importance, because the second wing of the bifurcated service has not yet even been constituted under s.3. 10. This brings us to the cross-objections of the State. In the Court below, the writs were dismissed largely, but not wholly. It was held that the State should constitute the services fully under s.3 and publish all relevant notifications within 31.8.91 the time to exercise option under s. 12 was extended and the doctors to retire by July 93 were directed not to be disturbed in any way. The relevant portion of the order is set out in para 221 below. The State has argued that this was a usurpation by Court of legislative functions. By our interim order we directed that the deadline of 31.891 set by the Court below will not be applicable and that the persons entitled to exercise option under s. 12 and the option rules framed thereunder need not exercise their option until our decision is reached in these appeals. 11. This is sufficient background for introduction of the main points raised. In brackets after formulation of the points I have indicated the paragraph numbers where they are dealt with in the judgement. 11. This is sufficient background for introduction of the main points raised. In brackets after formulation of the points I have indicated the paragraph numbers where they are dealt with in the judgement. The points were : (a) The right to private practice is fundamental under Article 19 (1) (g) and the restriction imposed thereon transgressed the permissible limits of 19 (6). (13). (b) The above right being conferred unrestrictedly by s. 27 of the Indian Medical Council Act, a central legislation, the curtailment thereof by a State Act is void for (1) repugnancy under Article 254, or (ii) general conflict with a Central Act. (14) (c) The Act suffers from the vice of excessive delegation of unguided power, in that practically everything starting from constitution of service to appointment or service terms is left to the State, (15) (d) The Act suffers from uncertainty and thus arbitrariness like, in s. 12 an option is being asked to be exercised without making the option known. Thus Article 14 is offended. Also s. 14 (2A) forces 6600 doctors to become teachers without right to private practice whether they are willing or not. (16) (e) The criterion of holding or having held, a teaching post is not an intelligible classification, because, e g., the bolding of such a post was purely a matter of previous appointments at the unilateral choice by the State without any exercisable control by the members of the unified cadre and even a person who held a teaching post for a day in the long distant past would have an option, which the large majority (say 6600 out of 8000) would not have. (17) (f) The condition of non-practice bore no reasonable nexus with the objects of ameliorating medical education or patient care, became, if non-teaching doctors can be allowed to have private practice consistently with their government job duties of patient care, so can the teaching doctors; or, if one can practice privately after discharge of service duties, stopping the same serves no object and that this is of importance because there are no materials of any proceedings against doctors for neglect of service duties caused by their private practice. Moreover, it is by practising widely and privately that one gains the experience of being a better teacher, so private practice has the opposite effect of being good and desirable in reality for even government doctors (18, 19) (g) The Act seeks to overreach the interim order of 1982 and is thus a bad use of legislative power. (20) (h) The Act is a Colourable exercise 'of legislative power because there were already 1000 teaching posts on non-practising terms, so that the whole exercise is intended only for 400 teaching posts; that in these 400 posts there are m1ny present incumbents who do not have post-graduate degrees as required by the Indian Medical Council, so that the Act, by giving option to these for permanent absorption as teachers, is paving the way to derecognition of the teaching institutions of West Bengal by the Council. (21) (i) The long continuance of 65 relaxation as to practice made it obligatory on the legislature to review the situation, and sit in consultation with all likely to be affected, fake the views of the general body of doctors before taking the drastic step of prohibiting practice for all teachers and in all the top institutions. (21) 12.1 Before proceeding to a pointwise discussion it is necessary to get some basics right. It is sound law that a legislation is rather to be upheld than struck down, for the will of the elected legislature must not be lightly cast aside, Thus, if the Act is unnecessarily cumbersome, or lacks a direct short or simple approach, it may nonetheless be good law. Here, for example, the 1400 teachers might conceivably have been selected along With --some 500 administrator doctors by a process of slicing from the cadre rather than a bifurcation of the cadre, with attention directed to both the bifurcated puts. But that is untouchable legislative will. Inelegance in legislation does not render it unconstitutional. 12.2.1. Secondly, legislation by Assembly, though subject to the Constitution and especially its third part yet, the testing of such legislation on the anvil of, say Article 14, takes a radically different form than the testing of any subordinate legislation, executive act or quasi judicial decision. For an Act to be unconstitutional for breach of Article 14. 12.2.1. Secondly, legislation by Assembly, though subject to the Constitution and especially its third part yet, the testing of such legislation on the anvil of, say Article 14, takes a radically different form than the testing of any subordinate legislation, executive act or quasi judicial decision. For an Act to be unconstitutional for breach of Article 14. it must either contain the creating of different classes with different legal incidents without an intelligible differential existing between the two classes; or, such differentiation must be demonstrable as having no nexus with the object or purpose of the Act. These are the twin tests for primary legislation. 12.2.2. But the test of arbitrariness for any state action below primary legislation is a much harder test. Suppose by subordinate legislation two classes are created with intelligible differentiating criteria. That is not an end of the matter. If there are other competing criteria in the field, those cannot be ignored in the case of subordinate legislation. Or else the subordinate legislation will be bad for non-consideration of relevant matter and unreasonableness of such exclusion from consideration. For primary legislation, the Court need merely understand the division to be at all a sensible one but for subordinate legislation even if such division is intelligible, it has still got to be reasonable in the total view of the field. But the reasonableness of legislative policy of division is not tested like that; provided an intelligible policy is seen to exist, the primary legislation passes the first of the twin tests; the comprehensive reasonableness of such -policy cannot be questioned as the Case of delegated legislation. 12.2. 3. Next take the reasonable nexus. The differentiation is to be seen as having some reasonable connexion with the object of the Act. Suppose there are a host of other possible differentials having a reasonable connexion with the object of the Act. It is irrelevant. By legislative policy the legislature is entitled to choose anyone or more of such reasonably connected differentials and simply ignore the rest. Subordinate legislation has no such privilege of protected policy decision. The policy decision of subordinate legislating authority cannot generally ignore relevant and important matters altogether. 12 3. The burden of demonstrating the unconstitutionality is on the challenger. By legislative policy the legislature is entitled to choose anyone or more of such reasonably connected differentials and simply ignore the rest. Subordinate legislation has no such privilege of protected policy decision. The policy decision of subordinate legislating authority cannot generally ignore relevant and important matters altogether. 12 3. The burden of demonstrating the unconstitutionality is on the challenger. Such burden may shift once an unintelligible classification is shown as in Nakara's case ( AIR 1983 SC 130 ), but otherwise as demonstrated in the three cases relied on by Mr. Ghosh, (See appendix 7 (b) below) the onus is on the petitioner. That is clear. If that were not so. no petition challenging the constitutionality of any Act on however flimsy 8 ground could be summarily dismissed without calling upon the state to demonstrate the constitutionality of the Act. 13.1. No doubt the right to follow a medical profession is a fundamental right. Anybody has a fundamental right to become, and earn his livelihood as, a doctor. Does the Act come down upon this right unreasonably? In my opinion it does not First, there in nothing in the Act imposing any restriction generally on all doctors in the state, either qualified fully or in the process of qualification. Anybody is free not to take up the medical education service and thus retain his right of unrestricted practice, In this view, the Act does not encroach upon 19(1)(g) at all and the consideration of 19(6) becomes unnecessary. 13.2. Secondly, even for those who take up the medical education service, the curtailment of private practice occurs as no more than a service incident. Even if they break the rule, it is but a service offence and. at the worst they may lose the service and, conceivably, have to pay damages for breach of contract. But they can, though at a cost, engage in private practice practically at will. Contrast this situation with the situation of the tribunal, in the case of where practice of all advocates was/were forbidden See Srinivasa's Case, para 14.7 below. That is a situation where no advocate can enter the arena, do what they will. But they can, though at a cost, engage in private practice practically at will. Contrast this situation with the situation of the tribunal, in the case of where practice of all advocates was/were forbidden See Srinivasa's Case, para 14.7 below. That is a situation where no advocate can enter the arena, do what they will. Now in such a situation it might well be argued that since a right to practise as an advocate includes in it a right to practise before any and every tribunal, subject of course to anyspecia1 regulating rules of the particular tribunal that there might be, a total curtailment of a right to practise before a particular tribunal, is, protanto, a curtailment of the freedom to practise as an advocate. 13.3. Thirdly, if it can even be somehow held that the service condition of non-practice infringes a fundamental right, yet such infringement is in my opinion saved by the reasonableness of the restriction in public interest. If teacher doctors (or whole time administrators, if and when these are constituted in and along with the separate and of the new Health service) are asked not to dissipate any of their energy in private practice, then the object therefor is no doubt public good. For it is the poorer section of the public that they will generally serve at these big government run medical institutions. Nor can the reasonableness of these restrictions be doubted. Nobody can really do two jobs. None of us can have two jobs, or two professions, or, indeed, a job and a profession. Indeed, the normal rule for mankind is one man, one livelihood, one job, with maybe exceptions in certain extraordinary cases. The government medical jobs are full time. I do not think that they can be any thin but only nominally full time if private practice also goes on full swing, unless (i) the doctors have superhuman energy or (ii) the inflow of patients at government hospitals is at very Iowan ebb, Nobody seriously can believe that any of these two is the case. I do not think that they can be any thin but only nominally full time if private practice also goes on full swing, unless (i) the doctors have superhuman energy or (ii) the inflow of patients at government hospitals is at very Iowan ebb, Nobody seriously can believe that any of these two is the case. Without meaning any harm to anybody, I for my part find it surprising that so many government doctors in State, not particularly outstanding at present either by way of individual prosperity or good general healthy conditions, should, consistently with their full time patient care duties, have found for so long and so wide a spectrum, time and organization for continuance of parallel private practice. 14.1 The Indian Medical Council Act of 1956 has prescribed in s. 15(1) (b) that none but the doctors as per qualifications set out in the Act shall practice in India and in s. 27th. It such qualified doctors shall have right to practise in India. It is argued that the State Act of 1990 contains provisions as to non practice which are repugnant to the Central legislation and therefore these repugnant provisions must be declared to be invalid to the extent of repugnancy. Such repugnancy has been argued to be both within the terms of Article 254, as well as (and this I, novel argument indeed, irrespective of its merits) on central terms even if not en-compassable within the ambit of Article 254 as judicially interpreted. 14. 2 I need not overburden this judgment by setting out Article 254 which is handy to every lawyer. But I do Deed to say a few words about repugnancy in general Repugnancy by today is a term of art. It does not mean simple logical contradiction. Rare indeed is the instance where a Central Act enjoins a citizen to do a certain thing and a State Act forbids the doing of that very thing. The concept of repugnancy Was not evolved of such a cut and dried conflict the simplest way I can put it is this, that repugnancy means a lack of possible co-existence. Again, 'possible' co-existence does not refer to logically possible co-existence, but to a legally possible co-existence. Let me demonstrate. 14.3. The concept of repugnancy Was not evolved of such a cut and dried conflict the simplest way I can put it is this, that repugnancy means a lack of possible co-existence. Again, 'possible' co-existence does not refer to logically possible co-existence, but to a legally possible co-existence. Let me demonstrate. 14.3. An example was given in an old Calcutta case (G P. Stewart v. B. K. Roy, AIR 1939 Cal 628) quoted in Sharma’s case, AIR 1990 SC 2072 at 2091, where the example was of this type e.g. Central Act forbidding the taking of more than 10 gallons, and a State Act forbidding the taking of more than 5. Logically, obedience to both is possible, if repugnancy here. But it is a situation where repugnancy would be indeed very likely to result. 14.4. When repugnancy is to be inferred has been the subject matter of discussion of various Supreme Court cases. Sufficient unto our purpose would be to set out the tests formulated in an Australian book referred to in the Supreme Court decision in the case of Deep Chand v. State of U. P. reported in AIR 1959 SC 648 at p. 665 the Australian formulation, as appearing at page 665 at para 29, left column, is as follows : - (1) There may be Inconsistency in the actual terms of the competing statues : (2) Though there may be no direct conflict, a State law may be inoperative because the Common wealth law, or the award of the Common wealth Court, Is intended to be a complete exhaustive code and Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter." The Supreme Court's own formulation at the same page, on the right column is as follows : "Repugnancy between two statutes may thus be ascertained on the basis of the following three principles : (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field." 14 5. In cases .where the logical co-existence of the two laws is possible the most important test of repugnancy would be whether the Central Act was intended to occupy the whole field. By 'field' is meant the substantial subject matter of legislation If, for example, the Central legislation is on an entry in list III, and the State legislation is on entries wholly in list II, the question of repugnancy can never arise, unless the laws cannot logically co-exist. The decision of the judicial committee pronounced by Lord Wright in the case of Megh Raj v. Allah Rakha reported in AIR 1947 SC 72 is an authority for the former part of this proposition. I have felt compelled to venture to add a proviso to the said proposition, because if the laws are logically exclusive of each other there is-a repugnancy, and there neither is, nor can be any view contrary to this, because in case of two laws (assuming that both are within legislative competence) directing a citizen to do two different mutually exclusive things, the Courts must give him a guidance as to what be should do and what be should not. 14 6.1. I must hasten to add that the above sort of logical repugnancy that I have hypothetically assumed will not be soluble by application of Article 254 only, in the present state of the law. It is now settled Jaw that under Article 254, only that is repugnancy, which has resulted from legislation by both the Central and the Stale on an entry in the concurrent list. See the case of S. Krishna v. Hoechest Pharmaceuticals, reported in AIR 1957 SC 297 and AIR 1983 SC 1019 , respectively at p. 300 para 4 right column, and at p. 1040 para 68 right column respectively. 1462. In the recent case of Sharma reported in AIR 1998 SC 2072, the Supreme Court has even gone to so far as to indicate that for an Article 254 repugnancy to result, there must not only be Central and State legislation both on the concurrent list, but that both them must be on the same entry in the concurrent list (See paras 10 and 30 especially the end of the latter at p 2086, left Column). It is important to bear in mind that not all questions as to repugnancy that can occur to an inquiring individual have yet been authoritatively and finally answered. In repugnancy cases, therefore, unless one h1ppens to be in the most authoritative position where the law Can be set down for all in India, one should content oneself by answering only the exact question which arises. 14 7. Thus, repugnancy under Article 254 is a pure list III situation. The case of H.S.Srinivasa, ( AIR 1987 SC 1518 ) decided by Justice Chinnappa Reddy following his Lordship's own judgment as a High Court Judge in the case of laswant Kaur (AIR 1977 Punj and Haryana 221), is an instance of a list III versus list I situation. The entries are I/77, I/78 and III/26. It would be impossible to categorize such a situation as an Article 254 situation There is no way but to read the case as an instance of a State Act giving way to a Central Act on a principle of repugnancy similar to that contained In Article 254, though not actually contained therein. I am unable to accept the argument in this regard advanced by Mr D. Ghosh that the case is an instance of declaration of the State Law to be void for want of initial competence. It is an extra-Article 254 repugnancy resulting from a logical contradiction. It is not a case on Art. 246 incompetence. Why I say that there is a logical contradiction. I have already touched upon in paragraph 132 above. To repeat the Central Act allows Advocates to practise in all tribunals; the State Act forbids such practice in a tribunal for all advocates, not for some, not on a condition but flatly; a logical enlargement of this contradiction results in a possible State Act forbidding all advocates from practising in all tribunals and this logical enlargement also shows in a magnified way why the two provisions are logically contradictory. 14 8. In our case, the first point to clear is that there is no logical contradiction as between the State Act and the Central Act. 14 8. In our case, the first point to clear is that there is no logical contradiction as between the State Act and the Central Act. It is not that all State resident Doctors are forbidden from practising in any action; even in the notified Government institutions where teacher Doctors will be on non-practising terms, even there the teacher Doctors will practice medicine; though not for individual fees to be received by them, but for a monthly salary to be received from the State for all patients during the month. Theoretically, therefore, it is possible for any patient in the State to come under the case of a 'restricted practice' teaching doctor, if such patient chooses to take an admission to a 'restricted practice' State institution. The practice of medicine is thus in no way restricted. Only a choice of patients and restriction on money .receipt is imposed. Such choice of patients, e.g., only those who will come into private hospitals, is often imposed even by 'free' private doctors. Therefore, the twenty seventh section of the Indian Medical Council Act Can wholly logically co-exist with the entirety of the impugned Act, and the notifications thereunder. No principle of repugnancy apart from Article 254 is therefore in issue. 149. Now for the repugnancy under Article 254. Here, not only logical repugnancy' but also field repugnancy bas to be paid attention to. The Medical Council Act has been argued by both sides before us to be a Central Legislation under the Concurrent List, entry 26 relating to the medical profession and education. The impugned State Act has been contended by the State to be a legislation under the State List, entry 35, relating to public services. If that be so, or even if the Act be a legislation under the said State entry as well as another-entry in list II, entry 6 (Public health), even then, the Act would be wholly within list II fields (enough if it is so in pith and substance) and accordingly, there being no absolute logical' contradiction, the question of repugnancy would net arise. Though the doctrine of pith and substance was originally evolved for determining the validity of legislation on the basis of Constitutional vires, yet the doctrine today is also a tool in repugnancy situations, in that, in non contradictory situations concerning a Central law and a State law, if the State law is found by the application of the doctrine of pith and substance to be wholly a list II legislation, then, on the basis of decided authorities, the question of Article 254 repugnancy will not arise. (Megh Rats case above at para 14.5 ; also somewhat in Zaverbhai, AIR 1954 SC 752 at para 8; and in U. P. Bar Council, AIR 1973 SC 231 at para 15.p. 238) 14.10. The doctors have argued that the Act is at least a legislation in pith and substance upon the medical profession also. Their ultimate case is that the Act is in pith arid substance at least a legislation upon two entries, one in the State list entry (no. 35) and another in the concurrent list (no. 26). In my opinion there is nothing in the Constitution, the general Constitutional law or any of the decided binding authorities, which states that a legislation in pith. and substance can relate to one entry and one entry alone. It is possible and permissible for both the Union and the State to embark upon the field of truly composite legislation, so that both Parliament and Legislature may draw' upon their delineated fields of power, even in pith and substances, in numbers more than, and from different lists, in the same enactment. 14 11. It is also my opinion that when the Central Act prescribed conditions prohibiting practice as a doctor of all save those qualified in accordance with the Medical Council Act, and permitted practice throughout India to those qualified, it intended to occupy the whole field in respect thereof. It would be quite repugnant for a State to legislate either that, though some people are not qualified as doctors in accordance with the Central Act they would still be permitted to practise if they satisfied certain special State conditions, or, on the other hand, that doctors, even though qualified under the Central guidelines, would still not be allowed to practise in the State, unless they satisfied certain other special suite conditions also. As an example of the latter, take a hypothetical case that a particular State provides thin doctors would not be allowed to practise there unless they first underwent a course in rural medicine by, living in one of the prescribed Dr. Sukumar Mukherjee v. State of W. B. (A.N. Ray, J.) 361 village for six months. It would be clearly repugnant. Thus, the ultimate decision on the point of repugnancy rests upon the single issue whether the Act is wholly in list If or not; that is whether in pith and substance it is a list II enachement. 14 12. I think it is, and I also think that this case is a magnificent example demonstrating both the power and practical wisdom of the pith and substance rule, in its indirect application for resolution of a question of repugnancy. Practically, if the State is thinking of public services and incidentally affects some doctors, it does not really matter to the general body of doctors in the State qua doctors. That is the pith and substance rule applied to repugnancy in common sense terms. Does the Act seek to affect, and affect, public servant.? Or, does the Act seek to affect 'and affect doctors generally ? Which is the truer way of looking at things? Or is it that the Act seeks to a affect and affects both public servants and doctors generally? If these are the questions, then an examination of the Act loaves no manner of doubt that the Act is truly rather (in pith and substance) an Act to regulate the public medical service in the State rather than to regulate all doctors in the State Details follow. 14 13.1 The Act, in the opening words, at least purports to be for the• purpose and objects of legislating for the West Bengal Medical Service, and not for doctors or medical education. The third section is about Constitution of the two main services, one of which is the medical education service. In the whole Act, however, nothing is to be found about medical education, but only about who are to be the impacters of such education, their terms of service, etc. There is no occupied field under the III/26 entry of medical education whereupon the Act has even in any manner been argued to entrench. In the whole Act, however, nothing is to be found about medical education, but only about who are to be the impacters of such education, their terms of service, etc. There is no occupied field under the III/26 entry of medical education whereupon the Act has even in any manner been argued to entrench. It will be noticed that the principal argument regarding non-practice is no' about medical education, but about medical profession. 14 13.2. The fourth section prohibits inter service transfers and the fifth allows joinder of appointments Tae sixth is tat: important section permitting separation of the (at least once prestigious) institutions for exclusive service by the teacher doctors of the medical education service wing of the health service. The seventh section is about the service conditions of the teaching wing and restricts these s.6 institutions from service by the non-teaching doctors, whose right to private practice is not being touched by the Act. 14 13.3. The seventh and eighth sections are about the service conditions to be prescribed for the posts in the teaching and non-teaching wings of the health service. The ninth and the tenth sections lay down about non-practising terms of teaching and public health-cum-administering posts, with provisions' for non-practising allowance being made expressly permissible. The sixteenth section lays down the age of retirement for teacher doctors and gives them a special service benefit for being in service up to the age of sixty five, if retained up to that age by the State this possible benefit itself bas not been the subject of much attack, though it bas been used in the context of the article 14 arguments. 14.13.4. The eleventh section provides for the transience from the former service to the non-teaching and practising wing of the new service. The twelfth section, which bas been the subject matter of much analysis during arguments, basically gives an option to the teachers to join the non-practising teaching wing of the new service, or go to practising non-teaching wing, in the latter case also forfeiting the chance of entry ever into the s. 6 notified institutions. Sections 13 and 14 deal with transfer from teaching post, and recruitment to teaching posts (very roughly speaking; it will be remembered that we are now running through the Act 10 see if it does anything about doctors in general) 14.13.5. Sections 13 and 14 deal with transfer from teaching post, and recruitment to teaching posts (very roughly speaking; it will be remembered that we are now running through the Act 10 see if it does anything about doctors in general) 14.13.5. It is not necessary to mention much about the rest of this 23 section Act, save for s. 19. This balance part of the Act is concerned with pay scales, seniority, saving of some (about two dozen) tenures of teaching posts by persons not belonging to the former government health service, the power to make rules by the State Government, the power to remove difficulties etc. 'The nineteenth section is an important one, for, by it hang about 6600 non-teaching 'practising doctors. It bas been the argument of the State, which we shall have to consider both in the context of/ excessive -delegation and in the context of article 14, that, by this s 19, the former health service is preserved, in tact and that the present Act, and the notifications issued thereunder until now, have only the effect of carving out the medical education service from out of it. Until the new practising wing of the health service is constituted, with its Non-practising administrative wing, the posts and tenures of the old health service doctors, remain as they are, with the important exception of any posts in the s. 6 notified institutions, which can no longer be held on practising terms. 14 13 6. Where in all this, I ask, is any general provision as to 'the medical profession? Neither the medical profession in general nor any medical education policies (save the policy of bettering it) arc before (he eyes of the Legislature, What the Act intends to dos to put into practical working some of the policy decisions as to the alteration of public service conditions with a view to alteration of the standards of the benefits of these public services to be conferred on the public. Thus, die Act being wholly on a State entry (or two) there is no repugnancy, we having already found that there is no logical contradiction involved. . 15 1. Next comes the question of excessive delegation. Thus, die Act being wholly on a State entry (or two) there is no repugnancy, we having already found that there is no logical contradiction involved. . 15 1. Next comes the question of excessive delegation. That is a principle which forbids the delegation of essential legislative function since such function is reserved by the Constitution for the primary legislative body only The principle on the other hand, which permits delegated legislation, is the Dr. Sukumar Mukberjee v. State of W.B. (A.N. Ray, J.) 36.3 principle that, the powers of the primary legislative bodies are unfettered, save for Constitutional checks. In each case of delegation of law making power, therefore, a question of judicial assessment arises, as to whether the primary legislative body has substantially abandoned its powers in some essential respect to some other body or whether it bas given only such powers of subordinate legislation, which can, in no manner be •called a divesting of the essential powers of the legislature, but is to operate only in a limited way, such limits being already set down or indicated in the primary legislation itself. 15 2. It is to be noted that under Article 162 of the Constitution the executive power of the State extends to all the branches of its legislative power also. Thus, until laws are (or were) made, the executive, by executive decisions, would have to fill the gaps in law, The article however makes it clear that such State executive power is subject to the executive power of the Union in concurrent entry matters. What is more important for our present discussion on excessive delegation is that, subject to the provisions of the Constitution i.e. say until laws are made by the State in that behalf, the State executive is wholly free to operate in the legislative field by means of executive decisions. However, once, the State legislature does take' up legislation in hand, it cannot seek to continue the previously obtaining executive licence under any legislative Act, because then it might well suffer from excessive delegation. Thus once legislation is undertaken, it must set down sufficient limits and guidelines for the executive, and upon such setting down of limits and guidelines, needlees to say (as article 162 does not) the executive licence beyond such limits and guidelines shall utterly cease. 15.3 1. The above is the general executive power, terminated by legislation. Thus once legislation is undertaken, it must set down sufficient limits and guidelines for the executive, and upon such setting down of limits and guidelines, needlees to say (as article 162 does not) the executive licence beyond such limits and guidelines shall utterly cease. 15.3 1. The above is the general executive power, terminated by legislation. In service matters, such power is practically, and substantially, different and much more extensive. State Services form a separate part of the Constitution, and under Article 309, contained in that part, (i) It is expressly stated (unlike in Article 162) that until 'legislation, rules may be made by the Governor for regulating recruitment and service conditions for State Public Services; (ii) It is also expressly stated that such regulating rules shall continue until provision is made in that behalf "......by or under an Act." Now, to my mind this sets up a scheme for executive power or delegated legislation on a scale grander than in the case of other legislative entries in general. The words "......by or under an Act" envisage, in my opinion, a constitutional permission to delegate the service regulation matter; of course, such delegation need not necessarily be to the Governor, but in case such delegation is to the Governor, or the State itself, it would need indeed an extremely large abandonment of powers by the legislature to service' matters before it can be' said that there has been an unconstitutiooally excessive delegation. 15.3.2. I am unable to accept the argument of Mr. Dipankar Gupta that under Article 309 proviso, the words 'by or under' really mean only 'by' and that the proviso contemplates that if a service regulating Act is made, it will not leave any large unlimited powers to the executive wing of the State, for further regulating the service under the powers preserved In the Act. For supporting his argument Mr. Gupta referred to several Articles where the words 'by or under' occur in the Constitution-he mentioned articles 76(2), 125(2), 140, 142(1), 149, 165(2), 166(3), 171(3) (b) (c) and (4), 191(I)(e): 326 and 329(b); I do not think that in any of these articles the words 'or under' are redundantly used. For supporting his argument Mr. Gupta referred to several Articles where the words 'by or under' occur in the Constitution-he mentioned articles 76(2), 125(2), 140, 142(1), 149, 165(2), 166(3), 171(3) (b) (c) and (4), 191(I)(e): 326 and 329(b); I do not think that in any of these articles the words 'or under' are redundantly used. In my opinion the words 'or under' are not redundantly used in Article 309 proviso either-the words refer to the possibility of executive regulation of service matters even under a 'service Act' and no limitations are placed expressly in the proviso on the width or breadth of such possibility. 15.3.3. On the executive power of the State on operate to the legislative field not inconsistently with legislation, especially in service matters, see Dorjee's case, AIR 1991 SC 1933 , esp. para 15 at p. 1937. 154 1. I am aware that what I am saying amounts to this, that in service matter so the test of excessive delegation is far stricter than in general, where the delegation is to the State (at whose suggestion the Governor, following a more' than three hundred year old British tradition acts). I am fortified in my view by the large mass of service law which has grown up in independent India, and by which today, constitution of new services, amalgamation of old services, division of existing services into more than one, recruitment, promotion, seniority, pay, transfer retirement are all possible to be regulated by pure executive orders and notifications. Rarely does one come across a legislative field where primery legislation and executive orders are so intertwined and living together happily. Look at the present medical service under West Bengal Government; there was no legislation on this filed for the forty three' years since independence. The service did go on in spite of that ; and even now some of the doctors want the legislation out of the way so that the continuing rules may further continue. 154.2. Several cases were relied 'upon by Mr. Somoath Chatterjee in regard to the state power for control of state services, even when no primary legislation is being resorted to It is executive power or power under Article 309 proviso that is quite sufficient for such control. Legislation is possible but is most often not resorted to, as the quicker and easier methods are equally well available in law. Mr. Legislation is possible but is most often not resorted to, as the quicker and easier methods are equally well available in law. Mr. Cha1frrjee relied upon the case of the State of Punjab v, Joginder Singh reported in AIR 1963 SC 913 . He relied on headnote (C) to show that constitution of two services was 8 possible category of state executive power. What is said in that case about equal work equal pay however, was not relied upon by Mr. Chatterjee in this context, and also does not concern us in this context. 15.4.3. The case of Ramesh Prasad Singh' reported in AIR 1978 SC 327 was relied upon by Mr. Chatterjee to illustrate executive power in the matter of framing government service rules; it was specially emphasized from this case that constitution of service need not necessary have to be preceded by rules for recruitment etc. being framed previously the process of rule making may take a long time and that should not hold up any administrative need that may require an immediate creation of service or posts. 15 4. 4. Mr. Chatrerjee next relied upon paragraphs 17 to 19 at page 742 in the case of Arun Kumar Roy reported in AIR 1986 SC 737 . He said on this authority that the governmental power under Article 309 for making service rules is wide and unfettered, and especially unfettered by any contract with which the government, service may have originated. Naturally in this regard both Mr Chatterjee, as well Justice Khalid in his lordship's judgment, made reference to Roshan Lal AIR 1967 SC 1887. Regarding excessive delegation to the government of power to regulate medical service, the followiog two sentences from Justice Khalid's judgment are illuminating :(at para 17, p. 742) : "the powers of the Government under Art. 309 to make rules, to regulate the service conditions of its employees. are very wide and unfettered. These powers can be utilised unilaterally without the consent of the employees concerned." How can there be excessive delegation of power to the Government if It already bas in that regard powers which are very wide and unfettered? 154.5. The case of K.S. Vora reported in AIR 1987 SC 2348 was also relied upon to show the 'State's rule making powers regarding service seniority. If such rules are bona fide made, those cannot form the subject matter for any grievance. 154.5. The case of K.S. Vora reported in AIR 1987 SC 2348 was also relied upon to show the 'State's rule making powers regarding service seniority. If such rules are bona fide made, those cannot form the subject matter for any grievance. 15 5. To our pointed question to Mr. Ghosh as to whether there is anything in the Act which could not also be achieved by an executive order or notification, the answer was that each of these purposes could be so -achieved. Mr. Somnath Chatterjee at one stage clearly said that this being a large scale attempted reform measure the Government wanted the extra protection of an Act, which a mere executive order can never afford. I have, near the beginning of this judgment indicated how in some matters such additional protection can be had against a Constitutional action. 15.6 It is therefore a difficult matter indeed to establish the vice of excessive delegation In enactments relating to service matters. Let us take for example s.12. Suppose a teacher opts for the education service. He will have to be appointed to a teaching post. Which post will It be? will it be a post far Inferior to his present rank, say a professor, to that of a reader? These questions were sought to demonstrate the lack of guidelines and the possibility of exercise of unlimited power in ways which might be 'unreasonable and even capricious. I think this argument misses point. The point is about excessive delegation. Is it an essential legislative function of a State legislature to lay down appointments to specific service posts? The answer, obviously is no. Not only is it not an essential legislative function, but it might on the other hand be safely stated that appointments to posts, whether newly created or already existing, are predominantly executive acts. Indeed, that is not to say that these executive appointments are not subject to a challenge in an individual writ, either by the appointee or by a disappointed prospective appointee. So indeed can appointments under the Act be also challenged for abuse of power, or unreasonableness, or any of the other categories of challenge if the occasion so arises. But that does not mean that the power of appointment conferred by the Act is bad ab initio. So indeed can appointments under the Act be also challenged for abuse of power, or unreasonableness, or any of the other categories of challenge if the occasion so arises. But that does not mean that the power of appointment conferred by the Act is bad ab initio. It only means that the power, though validly conferred, is possible of improper use; it would be difficult to find a power which is not thus subject to the possibility of improper use. If powers were to be declared as invalid for the mere possibility of improper use then even the primary legislative functions would have to be so declared, for, they are capable of use in purported defeasance of fundamental rights. 15 7. What I say about appointments would also hold good for s. 6 notifications of exclusive teaching cum hospital institutions, fixation of cadre and teachers' terms under ss. 7 and 8, as well as seniority fixation under s. 17A. What needs 10 be looked into in a slightly. greater detail is the combined operation of ss. 3 and 12 of the Act. 15 8. By the third section power is given to constitute' the two new contemplated services. It is possible, on the wording of the third section, to constitute only one service out of the two on a particular date and leave the other service unconstituted. Indeed, that exactly is what has been done. On the 25tb May 1990 several notifications were issued and one of them, bearing no. 1403, constituted the medical education Hence the other non-teaching service has not yet been constituted, nor naturally its wing of the public health cum administrative unit. The point is that by virtue of such non-constitution, the option exercisable under s. 12 becomes a different option in effect than it would have been, had the two services been constituted, and had the terms for the posts of both service been made known. It is quite true, that by reason of such non-constitution, the option under s. 12 is having to be exercised more in the dark than it otherwise need have been. 15.9. This aspect also raises an issue of unreasonableness and uncertainty in the article 14 arguments, but we are now examining only the power to constitute, or not to constitute, both the services under s. 3, from the standpoint of excessive delegation. 15.9. This aspect also raises an issue of unreasonableness and uncertainty in the article 14 arguments, but we are now examining only the power to constitute, or not to constitute, both the services under s. 3, from the standpoint of excessive delegation. It is not excessive delegation, because constitution or not of a service is not itself an essential legislative function. It can equally be a matter of an executive act. The legislature bas, in effect, left it to the executive discretion of the Slate either to carve out one service from out of the existing unified cadre by constituting only one service, or to effect the bifurcation by adopting the second mode of carving out two services from out of the old Very roughly speakil1g, it is like whether both the cupfuls of water will be taken out of the old glass and poured into two new separate glasses, or whether only one cupful will be taken out and poured into one new glass, leaving the other cupful where it was in the old glass Since service constitution can as well be an executive deed as it might be a legislative one; in my opinion there is not any excessive delegation of essential legislative function to be found in s. 3. 16 1 1. This brings us to the main point why the Act has been branded as uncertain and thus arbitrary and unreasonable, thus offending Article 14. Let us take the case of the' appellant Dr. Sukumar Mukherjee. has a good private practice and it is unlikely that he will give it up. He also has, at least until now, a professorship at one of the now s. 6 notified institutions. He would, let us say, like to opt for the new practising wing of the non-teaching health service (this, it must be remembered, is purely hypothetical, and assumed only for the purpose of testing the sections; in all likelihood, Dr. M ukherjee would, if the Act stands and he cannot continue teaching as a professor, simply resign from Government service bidding the Government good bye and good luck in one breath). Well since the health service bas not yet been constituted, he cannot opt for it. For the same reason, be cannot be deemed either to have exercised an option in favour of the yet unconstituted health service. 16 1 2. Well since the health service bas not yet been constituted, he cannot opt for it. For the same reason, be cannot be deemed either to have exercised an option in favour of the yet unconstituted health service. 16 1 2. Dr Mukherjee cannot, by reason of the last proviso to s. 12 of Act either, be deemed to have exercised an option in favour of the "new non-eaching health service, which is yet unconstituted and which may, at least theoretically remain unconstituted for ever. We were however told by the Government counsel more than once that the constitution of the new service and other possible notifications as to the terms of the new health service were in the stage of preparation" It is conceivable that all this is awaiting our judgment. That again is a choice of the authorities. By our interim order we bad clearly indicated that the directions of the learned judge In the Court below to the effect that notifications were compulsorily to be issued by 31.8.91 would not be operative till disposal of appeal: whatever we do in the appeal we cannot, after expiry of 31.8.91, again set the same old deadline. In fact we have decided for reasons given in greater detail in the subsequent section of the judgment, that the setting of deadline and the order to publish notifications within that date, amounted with respect, to an impressible order of mandamus with regard to a legislative function of the State, albeit delegated. 16 1.3. So Dr. Mukherjee remains in the old health service which has not yet been abolished, either expressly by the Act, or impliedly by the operation of the Act. If be does Dot resign, be will have to be posted in some post commensurate with his position, as far as possible. In either a comparatively insignificant non-teaching hospital in Calcutta or be posted outside Calcutta. Let us' face it that be cannot probably find any of this palatable, and let us also clarify that 'we in no way blame him for this and in no way wish to decry either his good name as a doctor, or any of the worldly blessings (including air conditioned chambers mentioned by the learned Judge in the Court below) that God in His wisdom may have chosen to shower upon him. Just as we• are the judges of Constitutionality, so equally are we l10t judges of the failures or successes of the Government in the matter of motivation at any useful section of the people for voluntary sacrifices for Public good. We are only concerned to see if the Act along with s. 19 preserves the former health service, so that the Act does not have the effect of rendering 6600 non-teaching doctors compulsorily jobless, at the choice of the State executive to constitute or not to constitute the non•teachil1g new health service under s. 3. 162.1. I am unable to accept the argument on behalf of the State that s. 19 expressly preserves the former health service. The section is a saving of the old rules only as framed under article 309 proviso and the words "applicable to the persons appointed to the former West Bengal Health Service are only descriptive of the rules under article 309, which words were necessary. because so many other rules might have been framed under Art, 309 (proviso) for other State Services than the medical service. 162.2. I have come to this conclusion that though the Act calls the old service with the unified cadre the 'former West Bengal Health Service'. 'yet the Act docs not actually render it the 'former' service and even if the new services are both constituted, the former service may well have to 'continue. it has been the State's argument that they want nobody to lose a job altogether by reason of any abolition of the service along with the posts, constituting the service The argument and the policy underneath the Same can be felt as working like an unexpressed idea behind the express 'words of the Act. 162.3. The definition of the former service given in s. 2(b) of the Act states that the former service is the one in existence immediately before the coming into force of the Act. There is DO express indication of that in s. 2(b) or anywhere else that after the coming into force of the Act the former service will no longer be in existence, Indeed. There is DO express indication of that in s. 2(b) or anywhere else that after the coming into force of the Act the former service will no longer be in existence, Indeed. the rules preserved by s. 19, save to the extent of their inconsistency with the Act, also contained provisions relating to the very constitution of the service, and not merely the service conditions, Thus, for example, in the 1958 rules, (which incidentally are not apparently rules framed under Art, 309 proviso, but are an executive set, of rules, deriving sustenance maybe, from Art 162 instead), under rule 2, His stated that the medical service shall be one unified cadre (see page 347 of the paper book in Dr. Mnkherjee's appeal). or course that rule gives way protanto as soon as the West Bengal Medical Education Service is carved out from there But by such carving out the unified service is utterly abolished, even though it does not remain either unified or exactly as it was. 1624.1. Even though the 1958 rules were not flamed under Art.309 proviso, yet it should be at least considered whether they survive the Act, Nobody argued on this point. Be that as it may, it should be seen whether these rules are preserved by the Act, because these rules form the very base of the former service, including the post delegations. 162.42. The 58 rules would no more be abolished by the Act than the entire service constituted by the rules, save by express provision or necessary implication. Even if s. 19 does not save the 58 rules (as they are not under 309), yet, in my opinion, there is nothing in the Act to constitute their repeal either, I am unable to hold that because s. 19, does not mention non-art, 309 rules, those would not only be not saved by s. 19, but would also perish by reason only of their non• mentioning in s. 19. 16 3 1. Having thus concluded that persons similarly situated to Dr. Mukherjee do not lose their job on the single constitution' of one service under s. 3, we come to the next step of considering if the act overs eps the constitutional limits of article 14 by being unreasonable and arbitrary in the matter of prescribing options under s. 12 without making the fields of choice clear. Mukherjee do not lose their job on the single constitution' of one service under s. 3, we come to the next step of considering if the act overs eps the constitutional limits of article 14 by being unreasonable and arbitrary in the matter of prescribing options under s. 12 without making the fields of choice clear. This is a separate viewpoint than the one of do-they lose-their-jobs. But first a few more facts. The options were to be exercised within 90 days of 25 5 90, when then the relevant notification No. 1406 was gazetted and thus came into force. The first interim order in the Court below was passed on 14.8.90 about 83 days having elapsed in between. Close upon 25.590 there came, on 30.590, notification No. 1503. prescribing the pay and allowances for the West Bengal Medical Education Service. I must confess that when we passed the interim order relieving the deadline of notifications publication' by 31.8.91 we rather pointlessly said that no options also need be exercised pending the appeal; the time for options exercise had 'long gone by. 16.3.2. The new non-teaching health, service rules, or conditions of service', as I have said, are not yet there, They were not there for the crucial ninety days either, which were largely allowed perhaps to lapse before undertaking the challenge in Court, That is not illegal strategy. What happened in those intervening days was that about. 900 (according to the State), alternatively about 1000 doctors (according• to Mr. Maitra) exercised their option in favour of the medical education• service. It was the pointed submission of the appellants that all these doctors, or at least an overwhelming majority of them, were already on non-practising terms even in the former health service. So all these eagerly took the option, their pay was increasing, their possible retirement age was increasing. We from the bench asked counsel for the State again and again as to how many doctors were already on non-practising terms among5t those who bad already exercised option is the prescribed 90 days. We are sorry to say that in spite of some sort of assurance, no answer came. We assume that the State was not readily willing to divulge the figures. A Constitutional action of this nature is above the level of too rigid an application of the principle of adverse inference. We are sorry to say that in spite of some sort of assurance, no answer came. We assume that the State was not readily willing to divulge the figures. A Constitutional action of this nature is above the level of too rigid an application of the principle of adverse inference. But we cannot but proceed on the basis that in these 90 days, there was no very great rush amongst the doctors on practising terms to opt for the education service, giving up their rights to private practice. 15 3 3. It was further made a point of, that since the State avowedly needed about 1400 doctor teachers only. and about a thousand were already on n In pracising terms, the Act was really being passed for replacement of these balance 400 posts in the key institutions which carried on teaching as well as patient care It is quite manifest that in this body of 400 posts there are some eminent incumbents like Dr Mukherjee or Dr. Saibal Gupta. The Government's policy is that they will run teaching and patient care by an exclusively non-practisil1g body of teacher doctors. This is a policy matter. Whether the Government can function with famous doctors with good practice or not as practising teachers in their key institutions is a matter not for the Court to decide. Will you keep a brilliant man whose personality is not easily controllable,, who perhaps does not always keep to the clock exactly to the minute, but who is a widely circulating doctor, for the benefit of students and- patients? Or would you rather keep a doctor who finds that giving up private practice, he would rather teach full time and do patient Case in the hospitals, bringing to the patients and students whatever his resources will permit, with regularity unflagging? It is a pure policy choice. The Government has chosen the second alternative deciding' the same to be the better according to it. If the decision Is not unconstitutional, It shall prevail before us Whether the future will show the decision to -have been good for the Institution, the students and the patients, is a question with which we do not feel in the least bothered. 16 3 4. If the decision Is not unconstitutional, It shall prevail before us Whether the future will show the decision to -have been good for the Institution, the students and the patients, is a question with which we do not feel in the least bothered. 16 3 4. Thinking that the problem of option exercise without the options being known needed some interference, the learned judge in the Court below ordered in the manner quoted in paragraph- 22.1 below. 16 3.5: It is the said passage that bas been the subject of cross-objections filed on behalf of the State. About the sustainability, with respect, of the orders made In the above passage, I shall discuss a little later. In the context of the article 14 enquiry, it is now necessary rather to examine the question of the absolute necessity of these orders than the justification of their contents. 16 3 6. The direction that the State respondents are to prescribe all the remaining rules and necessary notifications by 31.8 91 was the result of a feeling of a vacuum, which, according to the learned Judge needed to-be filled up. I have already said why I think there was no vacuum at any point on time, by reason of the former service and the former posts not being abolished altogether, or, indeed, at all. In the passage of the judgment in the Court below, the Act and the notifications were held to be constitutionally valid; along with such a decision,' the order to publish other notifications was also made. It maybe; argued that the decision of Constitutionality is not severable from the immediately following direction to publish the balance rules. Even if the same be argued, I am of the opinion that the decision On the constitutionality of the Act and the rules already published is perfectly sound even if no other single publication is 'forthcoming in the immediate future. There is no gap which needs necessarily to be filled up. 16.3.7. Mr. Dipankar Gupta appearing for Dr. Mukherjee gave up a list of comments that, according to him could be made on the wording of S.12. These are the comments ; The options offered and the consequences of default. '(a) Holding teaching posts Option: WEMES/WBES (Vide main sec.). Default: WBHS (Vide proviso 5) (b) Has held teaching posts Option: WEMES/WBHS. (Vide main see). Default: ? Mukherjee gave up a list of comments that, according to him could be made on the wording of S.12. These are the comments ; The options offered and the consequences of default. '(a) Holding teaching posts Option: WEMES/WBES (Vide main sec.). Default: WBHS (Vide proviso 5) (b) Has held teaching posts Option: WEMES/WBHS. (Vide main see). Default: ? (c) Holding PH or A- Option: WBHS/PHA Unit (Vide proviso 3). Default: WBHS(Vide proviso 4) (d) Holding administrative posts (opther than PH or PH or A ?) - Default: WBHS (Vide proviso 5) (e) "Who may not be required to exercise any option" No Option: WBMES (Vide sec 14 (2A). (f) No option to the bulk of the Non-teaching and non-administrative Medical Officers. 16.3.8 1. Regarding comment (a) my answer is that in default of exercise of option today; a teacher doctor would not go to the W.B.H.S. which is not yet constituted, but would remain in the former W.B.H S. 16.3.8.2. Regarding comment (b), had the W.B.H.S. been constituted within the 90 days, then and in that event, a person who was not holding a teaching post at the commencement of the Act, but bad only earlier held a teaching post, could not, under the last proviso of s. 12 have been deemed to have opted for the W.B. H S. In default of such a former teacher exercising option. he would (i) either, tinder s. 11 go over to the same post in the new W.B H S. in case a post to post identity existed for his post as between the former W.B.H S. and the new H.B.H S. : or, (ii) if he is in a non-teaching post in any of s. 6 notified institutions, he would have to be put in some other practising post in some other institution like in the case of Dr. Mukherjee himself. (iii) In case there is no post to post identity in the first alternative, the person would continue in the old post of the old W; B. H. S. which remains unabolished in spite of the Act. But since the new W. B. H. S. is not yet there, only alternatives similar to (ii) and alternative (iii) are of practical relevance today. 16.3 8.3. But since the new W. B. H. S. is not yet there, only alternatives similar to (ii) and alternative (iii) are of practical relevance today. 16.3 8.3. It is necessary to elaborate a little more on s. 11 for the purpose of demonstrating how the above three conclusions of mine find support from that section. The section contemplates a situation where a person in the former service holds a post which post bas been included to the cadre of the new W B. H S. The administrative non-practising wing is out of the present discussion. As soon as there is a post to post identity, s.11 achieves a transition of the person from the post in the old service to the same post in the new service, on the terms'-and conditions prevailmg at the commencement of the Act. In such a case I dare say, the old post under the old service would stand abolished by a necessary Implication. 16.3.8.4. It was commented that under s. 11 the terms of service with a posts to post identity would get frozen for ever. That was said to be unreasonably discriminatory. I do not read the word 'continue' in s. 11 as 'continue for ever afterwards'. The word continue must mean continue until such time as any lawful change is effected In the service conditions. To read the word otherwise as abrogating for ever afterwards whether the. power of the State or of the Governor to change under Constitutional powers the service conditions would, in my opinion, be an unreasonably emphasized interpretation of the word 'continue' or not warranted either by the express wording of the Act, or by its purpose (to which freezing of service terms for practising doctors cannot be relatable), or by simple common sense. 16.3.8.5. Regarding comments (c) and (d) it must be said that on a combined reading of the last three provisos to s. 12 it does appear that there is scope for a little exercise in interpretation. By the third Proviso. persons in posts connected with public health (ph) or administration (ad) can opt for the health service, which is practising, or the unit which is not; if they exercise no option they go to the health service under the fourth proviso. By the third Proviso. persons in posts connected with public health (ph) or administration (ad) can opt for the health service, which is practising, or the unit which is not; if they exercise no option they go to the health service under the fourth proviso. Under the fifth proviso they going to the ph-cum-ad unit in case of holders of administrative posts by reason of non-exercise of option makes it clear that incumbents of such administrative posts can opt out only by direct choice made for the practicing health service; they can opt for the ph-cum- ad unit under the third proviso, or they will be put there in any event under the fifth proviso, unless they have made an express direct choice for the health service under the third proviso But such ‘forced option’ persons must be incumbents of ‘purely’ administrative posts. What these ‘purely’ administrative posts are may fall for further interpretation in future in case of some particular individual or individuals. That such an occasion for further interpretation may arise is no ground for declaring the provision itself to be wholly unguided or arbitrary. Indeed, in one of the notifications issued on 25.5.90 (no 1405), so far as the teaching wing is concerned, some top posts of Directors and Principals have been designated as non-teaching administrative posts. As and when the occasion arises, some posts on this ph-cum-ad unit may also be so defined as administrative post relates to or is connected with administrative, but that not every post which relates to or is connected with administration is (largely or purely) an administrative post. It must also be pointed out these are all for the future, because the ph-cum-ad unit is not yet constituted. 16.3.8. 6. As to comment (e), we come to a most unsatisfactorily worded sub-section of the Act. This is s.14(2A). Under s. 12, non-teachers are neither required to exercise an option (leave out for the present the public health post and administrators) nor can they exercise any option. If 14(2A) is to be taken at its face value (and the sub-section, to make it worse, was inserted by way of an amendment in order to do away, the Bill said, with practical difficulties) than this sub-section alone makes nonsense of the whole Act. If 14(2A) is to be taken at its face value (and the sub-section, to make it worse, was inserted by way of an amendment in order to do away, the Bill said, with practical difficulties) than this sub-section alone makes nonsense of the whole Act. If the 600 non-optees are compulsorily to be taken into the non-practising medical education cadre then there will be thousands of teachers in surplus and the whole service will be converted into one large bunch (a few sour grapes may drop down in the shape of teachers option out) of teachers, m ade so willy nilly. We cannot permit such a thing. Either the sub-section goes (and I need not elaborate why) or we interpret ‘shall’ as ‘may’ thus permitting recruitment of teachers from the practicing wing. 163.8.7. Indeed, if there is such a recruitment, a practising doctor' may well be recruited to a non-practising teaching job and thus be faced with the mutually exclusive choice of either keeping his government job or his private practice. But it is not such a newly created alarming situation as might be imagined. Even under the 1965 relaxation rules, a doctor in 8 practising post could be put, as a matter of service incident, by transfer, into a non-practising post. Moreover, it will be remembered that the entire body of 'the' 65 relaxations were introduced as temporary and experimental measures, and could be withdrawn or dropped, thus' restoring the original 1958 position of the general non-practising condition. Thus 14 (2A) now permits what was also earlier possible. As such, I am of the opinion that by application of two rules of Interpretation (i) that Acts ~hall be interpreted by keeping in view the object intended to be achieved thereby; and (ii) that Act shall be so interpreted as rather to uphold the provisions than to strike them down) this sub-section 14(2A) should join the many other provisions, in the long legal history of statutory interpretation, where ‘shall’ has been interpreted as 'may', and thus be instrumental to an additional entry in the AIR footnotes. 16.3.8.8. 16.3.8.8. With comment (e) (see para 16.3.7) we also pass on incidentally to the main topic (e), see para II, which is whether the Criterion of holding or having held a teaching post is a constitutionally valid one, for creating an intelligibly different class which would be given the option (s. 12) to teach no Non-'practising terms. s. 9(1). in key institutions (s.6) and undertake exclusive patient care there (s.7 first proviso), with terms of teaching service to be prescribed (s. 7 first part) with possible non-practising allowance, s. 9(2). and service continuation up to 65 (s.16-and the terms have already been published on 25 5 90 (Notification No. 1405 and 1503). 17.1.1. Is the s. 12 criterion of holding or having held a teaching post a bad one as being unintelligible? It was attacked as unintelligible and as incapable of forming a reasonable basis of classification on three main counts. It was said that if a person happens to have held a teaching post for a day in the distant past, then that is not a reasonable or intelligible basis of distinction as between him and another person who bas not held such an appointment. In my opinion it is not legally permissible to test a class criterion for intelligibility by reference only to the borderline members of the class. Though many authorities were cited for many propositions, none was available directly for this one. However, when a classification is made, and the class substantially differs from the rest on the basis of the classification, if would be impermissible to hold that the entire classification suffers from unconstitutionality merely because of some borderline entrants into the class. All the relevant cited decisions call for an examination of the classificatory criterion as such and not an examination of how unintelligible the classificatory criterion might logically become in an individual case. 17.1.2. Secondly, about this distant-shore time-teacher no concrete case was cited. If a reasonably differentiated class is found in fact to contain members who are themselves reasonably broad instances of such reasonable differentiation, then it will not be proper to hold the differentiation, unintelligible by means of mental exercises seeing thereby how unreasonably that (otherwise reasonable) differentiation can be made to work in a world of conjecture. If a reasonably differentiated class is found in fact to contain members who are themselves reasonably broad instances of such reasonable differentiation, then it will not be proper to hold the differentiation, unintelligible by means of mental exercises seeing thereby how unreasonably that (otherwise reasonable) differentiation can be made to work in a world of conjecture. In the absence of any examples from the real world, we are unable to hold the criterion to be unintelligible and must proceed on the basis that the option fell to be exercised by teacher or by those who bad held teaching posts, not merely in name or not merely on paper, but in substance. 17 1.3. It was next argued that over the teaching appointments the doctors in general had no control The appointment was made by the State and an individual doctor could not compel a teaching appointment in his own favour. It was thus said that the offer to join the medical education service was unreasonably denied to those doctors, who, in the past, had not held any teaching appointments through circumstances entirely beyond their control. 171.4. There are no materials, nor was it any very serious a suggestion, that past appointments to teaching posts were made on any whims or fancy. There are no materials to show that any doctors were clamouring for appointments to teaching posts for ventilation of their didactic talents and that their importunities were being turned a deaf ear to. The fact is that some' teachers have held appointments as such. Continuation of them is by no means unreasonable. Even if the Act had not been passed, an individual doctor could not obtain a teaching appointment at will. On that basis the initial filling up of the teaching cadre by the teachers themselves is not an unreasonable measure. Moreover, the exclusion from the medical education service for a large majority of doctors is a must. That is because the Government needs only 1400 out of an 8000 strong cadre. Under these circumstances it is not unreasonable to ask the majority doctors to be content only with the possibility of appointment under 14(2A); that, as we have seen permits an appointment to a teaching post of a yet non-teacher. That is because the Government needs only 1400 out of an 8000 strong cadre. Under these circumstances it is not unreasonable to ask the majority doctors to be content only with the possibility of appointment under 14(2A); that, as we have seen permits an appointment to a teaching post of a yet non-teacher. However, such appointments may be effected only before the non-teachers get included in the new W.B.H.S because then the transgression from the new W.B.H.S. to the teaching W 8.M E.S will be forbidden under s. 4. 17.1.5. Section 14 contains provisions for recruitment to the W. B. M., B S. and there' is significant weightage attached there to rural service by doctors. There are also arras left to be prescribed. I have already, discussed why in service matters even large delegations arc more often not excessive than otherwise. It is therefore not the policy of the Government generally to fill up the teacher-doctor posts in the key Institutions by the present holders of the non-teaching practising post in the former unified cadre. This policy could, also be translated, into, action in individual cases, by removing or reposting all practising doctors from the now non-practising teacher doctor posts of the s. 6 notified institution. Such a large scale operation cannot be said to have been unreasonably undertaken by means of a legislative process rather than by means of a mass of individual orders. In short, the policy of deciding who will be teacher doctors is a policy matter not subject to scrutiny unless one can show the policy itself to be violative of Art 14, the policy of leaving out, the class of no~-teachers from even being offered options to become non-practising teacher doctors overnight not in my opinion a policy unconstitutionally discriminatory. 17.1.6. It was thirdly said that the Act has been passed only for about 400 doctors, some I top ones of whom like Dr. Mukherjee and Dr. Gupta are being excluded from teaching by the Act, and many other amongst whom comprise of unqualified appointees, whose appointments can be made regular by giving, them teaching posts under the Act, they having already held teaching posts, although irregularly and although without the requistite qualification. Mr. Mukherjee and Dr. Gupta are being excluded from teaching by the Act, and many other amongst whom comprise of unqualified appointees, whose appointments can be made regular by giving, them teaching posts under the Act, they having already held teaching posts, although irregularly and although without the requistite qualification. Mr. Nigam Kumar Chakraborty specially pressed this point relying on paragraphs 28 (f) and 28 (g) of the stay petition presented to the appeal court by the health association of it as a possible constitutional issue, because Mr. Chatterjee successfully resisted the attack on the allegations themselves. First Mr. Chatterjee said that these were after thoughts and never formed any part of the original writ petition. He did not dispute that a post graduate degree for a teaching post was a Medical Council requisite, but said that no appointment had been made in violation of any of the requisite norms. He emphasized the lack of any particulars as to who had been appointed in violation of norms in which post or when. He said that it was a serous matter to accuse a State of the making of appointments in medical institutions in violation of the norms of the Indian Medical Council Such a serous accusation cannot be taken note of unless the same is baked up with adequate (or, indeed, any) material particulars. I quite agree with Mr. Chatterjee in this regard. 18.1. Does the condition of non-practice bear no nexus with the object of Act ? To find this out, we must know what is the object of the Act. The best place to find the object is the Act itself ; this Act, or any other Act, will not state in its body what its object or purpose is, but the judges are not mere computes that they will read a whole Act without understanding anything about their object or purpose. The object of this Act, as can be seen from the Act itself, is to have some exclusive (we now know after notification no. 1404 dated 25.5.90 that these are thirteen in number) teaching cum hospital institutions, where only non-prectising teacher doctors will devote their wholetime (non-practising) energy for education and patient care. The object of this Act, as can be seen from the Act itself, is to have some exclusive (we now know after notification no. 1404 dated 25.5.90 that these are thirteen in number) teaching cum hospital institutions, where only non-prectising teacher doctors will devote their wholetime (non-practising) energy for education and patient care. Previously also 'the practising doctors were whole time employees; they were to do their private practice after discharging duties as a whole time employee ; the Act seeks to remove the possibility of the conflicting pulls of the job on the one hand and private practice on the other. The idea is to have these institutions on the type, say, of the All India Institute of Medical Sciences in Delhi, which, along with some other medical institutions say in Pune and Chandigarh ale wholly non-practising. 18 2. The argument was that 6600 doctors for non-teaching patient care were being left on practising terms. If patient care and a wholetime government job for that purpose did not call for a ban on private practice, surely a teaching cum-patient, care job would not call for such a ban ? For substantiation of this argument the statement of objects and reason was referred to, That, no doubt, is a legitimate source also for ascertainment of the purpose of the Act, at least by the law of the present day. The entire surrounding circumstances were also referred to. That again, on the authority of the C B Boarding case reported' in AT R 1970 SC 2042 at the end of paragraph 8 at page 2048, (cited however by Mr. Ghosh in the context of repugnancy, when he also rightly pointed out that headnote (A) in the report contains a serious error in the present regard), is another legitimate place to look for the object of the Act in. The point was emphasized-was it because of the practising liberty of the 400 doctors only in the posts in question that everything in the medical service was in shambles ? The point was emphasized-was it because of the practising liberty of the 400 doctors only in the posts in question that everything in the medical service was in shambles ? was pointed out that two -institutions, being the School of Tropical Medicine and the Institute of Post Graduate Medical Education and 'Research were already non-practising institutions and that there was a absolutely no evidence, not even a claim by the Government in the statement of objects, that the educational standard in these institutions (or patient care for that matter) was any better than in the practising institutions. 18 3. These arguments all miss the point. The point is not whether the condition of non-practice will in practice be certain to achieve the purpose of the Act (say, one such purpose is betterment of teaching standard), but the point is whether there is a connection a reasonable nexus, between the condition of non-practice imposed on the class of teacher doctors and the betterment of teaching standards Nobody can deny that there is such a connection. There cannot but be some conflicting claims on a single person's mind, time and energy if that single person is both to be a private practitioner as well as a 'wholetime' teacher doctor at a notified government institution. There are materials to show that such a nexus has been accepted as existing by knowledgeable bodies. First of all, if non-practice will not tend to better results, why should the 1958 rules originally go in for such a restriction under the able guidance of Dr..B.C. Roy? Nobody denies that, If there is a nexus between better possibility of teaching and non-practice, there might well also be a nexus of some character as between a better possibility of patient care and non-practice That is neither here nor there. No law compels the legislature to pass ameliorating enactments in every instance a nexus can be found between a good object and, say, a restriction upon an intelligible class. If a public interest litigation is commenced for imposition of conditions of non-practice upon doctors serving the practising institutions. in the interest of patients in these institutions claiming that they have a right to equal treatment and thus a right to as good an attention of government doctors as will be available to parrents in non-practising teaching cum-hospital institutions. If a public interest litigation is commenced for imposition of conditions of non-practice upon doctors serving the practising institutions. in the interest of patients in these institutions claiming that they have a right to equal treatment and thus a right to as good an attention of government doctors as will be available to parrents in non-practising teaching cum-hospital institutions. then this point about the 6600 doctors continuing to be on practising terms may be in issue, But here the separate intelligible class of teacher doctors in key institutions like the Medical College can well alone be put on non-practising terms, because they perform the twin function of teaching and patient care, thus calling for an even greater demand on their time and energy than those engaged only in patient care. Even if this is disputed for the sake of argument, it is still true that the government has a right to choose priorities and thus call for non-practice as for teaching doctors only, having the object of improved teaching in view alone, at least for the time being. The other important way of supporting this classification is that the teaching Institutions are the big ones in the State with hospitals attached, so that the condition of non-practice imposed on teacher doctors also works is practice as an imposition of non-practising terms on those doctors who will be looking after the twin activities of these large key Institutions. 18 4. A little elaboration of this above idea is called for, With due respect to all concerned, I do not think that this view point has received all the attention it deserves, The classification of teachers with non-practice restrictions is an isolated view of the matter. It is important to realize that the class that is being created is not a class of mere teachers, though the entry criterion is the holding of the teaching post (s. 12). Under Ss. 6 and 7 of the Act these teachers will look after patients to the exclusion of all other government doctors in the 13 notified institutions including the Medical College, These main government hospital colleges are the centres of medical treatment. The• separated non-practising class is separated and made non-practhing for the object (arguably) of the overall total uplift of these dual institution. 18 5. The• separated non-practising class is separated and made non-practhing for the object (arguably) of the overall total uplift of these dual institution. 18 5. A word or two must be said about the twin test of classification by intel1igible differentiation, and the existence of a reasonable nexus thereof with the object of the Act sought to be achieved. When two classes are created, or more. the intelligible differentials existing amongst them are not sufficient or good ill law if those are only intelligible in the sense of those being comprehensible with facility. It is not logical understanding that is in issue, but a legal permissibility for such classification. Take the case of Nakara ( AIR 1983 SC 130 ). It is quite easy and clear to follow the two distinctive classes created by the differentiating borderline date of retirement. In the ordinary meaning of the term, the Nakara classification has an intelligible differential, because the separation of the two classes is quite understandable to any ordinary mind. But the Supreme Court held the differential by way of the cut off date to be impermissible in law, meaning thereby that the classification is unintelligible to the legally trained mind. Thus, it is much better (said with all due hesitation in view of the long and wide authoritative user) to say that the classification shall be valid only if the differentials used for classification are constitutionally acceptable. Such constitutionally acceptable differentials for classification are those that do not violate amongst others, the articles 14 criterion of equality. If those who are equal in the eye of law are sought to be classified separately, then the differentials used for classification will not be Constitutionally acceptable. That is why the dividing date in Nakara, which sought to mike equals unequal by the attempted datewise classification, was round 'to be a constitutionally unacceptable differential. I have intentionally used the term 'Constitutionally unacceptable' instead of the term 'legally unacceptable' because when we are dealil1g the vires of an Act, the Act can lose in competition only- as against the Constitution, and not against any other law of lesser power. 18 6. Next comes the question of nexus Again what I say is said with due hesitation in view of the aforesaid wide user. It is perhaps a little infelicitous to search for a nexus between the classification and the object of legislation. 18 6. Next comes the question of nexus Again what I say is said with due hesitation in view of the aforesaid wide user. It is perhaps a little infelicitous to search for a nexus between the classification and the object of legislation. the nexus should rather be sought as between the class rights or class liabilities or class privileges created by the impugned legislation, and the object of it. In Nakara again, the object of amelioration of retrial emoluments had a clear nexus with the increase of pension rates. So this test 'Nakara' passed. Why the legislation failed in that case was became such nexus existed only with a pint of the whole, sought to be divided without Constitutionally acceptable differentials. 187. A situation where the classification has been made on the basis of Constitutionally acceptable differentials, and yet some class right or class privilege has been sought to be attached to or imposed upon one of the two validly differentiated classes, and the said attachment or imposition has been found to bear no reasoning nexus with the object of the law (whether primary or delegated) - this situation, so to speak this 'nexus invalidity• situation is far rare to come across in practice than the situations of discriminatory classification, i e. 'classification-invalidity'. One striking illustration of the 'nexus-invalidity' is the Air India case of Nargesh Meerza AIR 1981 SC 1829 ) and one particular part of that case can be profitably examined in this contest. 18.8. In that case. amongst other things. a regulation relating to termination of service upon pregnancy was held to be a bad imposition upon air hostesses. Marriage after four years' was permitted by the service regulations, but not pregnancy. The judgment contains a tour-de-force in paragraph 80 (p 1850) where such a prohibition upon pregnancy on pain of loss of service has been described as an open insult to Indian womanhood. Now, nobody in that case could ever have thought of arguing that a classification between a pregnant woman and another who is not pregnant was nor on the basis of acceptable and constitutionally permissible differentials. The examination related to the reasonableness of the imposition of the class liability for forfeiture of service imposed upon the class of pregnant air hostesses. That imposition failed to clear the article 14 test. The examination related to the reasonableness of the imposition of the class liability for forfeiture of service imposed upon the class of pregnant air hostesses. That imposition failed to clear the article 14 test. It was pointed out amongst other reasons that a maternity leave would serve the purpose. Thus, termination of service do not bear a reasonable nexus with the object of retention of efficiency of service-that is how, with respect, I venture to read and classify this part of the case. For the nexus to clear the article 14 test, the imposition must not suffer from an overmuch unreasonable restriction, for then the nexus snaps ; if there is a nexus between a lesser sufficient restriction and the object, then the same nexus will not necessarily exist between a larger and unnecessary restriction and the same object if the object also were correspondingly larger or intenser, then the larger or more harsh restriction might have cleared the nexus test. 18.9. On the above reformulation of the ‘classification-invalidity’ and the ‘nexus-invalidity’, we might say that the argument (e) mentioned in paragraph 11 (eleven) hereof relates to ‘classification invalidity’, whereas argument (f) mentioned in the same said paragraph 11 of this judgment refers to nexus-invalidity. It will be recalled that we are concerned now with argument (e) and that we have already cleared the ‘class-invalidity’ hurdle on the two broad points that, first, the teaching post though there may be demonstrated by concrete instances to have any practical reality) ; and, secondly, that the requirement of teacher-doctors being limited to only 1400 (and it has been nobody’s case that this requirement itself has been unreasonably criterion had to be existing, if the purpose of bifurcation itself is not to be branded as unconstitutional (which, indeed is the argument of nexus-invalidity, to be dealt with in paragraph 19). 18.10. A third broad point, in one sense a negative point, was also raised in criticism of the teaching post criterion. It was said that in choosing the prospective teacher doctors, no heed was paid to experience, expertise or professional qualifications. The dry legal way of refuting this arguments is to say that we are here concerned with testing the constitutionality of the differentials prescribed under the Act, and we having nothing to do with finding out whether some other differentials would also be constitutional. The dry legal way of refuting this arguments is to say that we are here concerned with testing the constitutionality of the differentials prescribed under the Act, and we having nothing to do with finding out whether some other differentials would also be constitutional. The practical and living refutation of this arguments on the other hand, would be, that, the Act does indeed give the option to come into the Non-practising teaching service to the very best. Dr. Sukumar Mukherjee and Dr, Saibal Gupta do hold teaching post and did have the option, which they did no exercise in the 90 days that elapsed after 25.5.90. We were not told which doctor, even one, deserving by inherent merit to became a teacher doctor, has been left out, it would take some searching. as such potential merit could not have been manifested in the most likely probabilities, the said potential doctor, by definition, not ever having held, or bolding, a teaching post in West Bengal. No, it is not for teaching that the clamour has been raised, but for being put to a choice between Lord Krishna and the good name. 19.1. Is the class imposition of non-practice then unable to clear the nexus-validity test? Is it too much of an imposition like in the Nargesh Meerza case? Could it be well done without? Does the inherent structure of the Act itself show that the imposition was uncalled for ? Is the history, and are the documents on the subject of non-practice, so equivocal as to make the call for a total ban an unreasonable exercise of legislative power? Would the object of the Act be served with lesser impositions? Is the ban on private practice to have the opposite effect of lowering teaching standards (this, indeed, would be a very stark Case of unreasonableness, amounting to a negative nexus)? These questions must be answered. 19.2. what is the history of non-practice? Our attention is to be fixed in this regard to the span of years ranging between 1958 and 1990, i.e, between the promulgation of the first service rules effecting a unification of the entire cadre of the West Bengal Health Service and the passing of the impugned Act. 19.2.1. The 1958 rules are at page 347 in Dr Mukherjee's paper book. Rule 7 makes all posts non-practising, with certain exceptions. 19.2.1. The 1958 rules are at page 347 in Dr Mukherjee's paper book. Rule 7 makes all posts non-practising, with certain exceptions. So, in 1958, non-practice of Medical Officers was the rule, private practice of government medical officers was an exception. What could be the reason of the making of such Brule unless it bad a practical and reasonable nexus with better quality service? Though arguments were long and detailed before us, nobody suggested anything else, or any alternative object, with which the prohibition was thought to have any nexus in 1958. 192.2. In 1959 certain• other rules (page 356) were framed, this time unlike in 1958, by express exercise of the power under the proviso to article 309. The rules related to service conditions, the point of non-practice was left untouched. 19.2.3. In 1965, powers vested in the Governor under rules 27 and 19 of the 58 and 59' rules respectively were exercised in view of the recommendations of an Expert Committee in 1962. The Government order of 65 (so called) (page 361) recited that the decision contained' therein were made 'temporarily until further orders'. Then in order (a), presumably 1 (a), all posts were relaxed into private practice permission, with specified exceptions. Thus, the rule that prohibition from private practice would be the general order was, at least temporarily, totally altered, and the rule became that permission of private practice would be the general order. The 65 order took care to state that (order 7) the relaxation was 'sanctioned temporarily as an departmental measure'. 19.2.4. Order No. 6 of the 65 order contained the following provision : 6. The Governor has been pleased to direct that the provisions of this order shall not be applicable to the medical officers who are governed by the old term; and condition of service including the benefit of private practice as were in existence on the 31st December, 1957 i.e., the day prior to the date of promulgation of the West Bengal Health Service (Cadre, Pay and Allowance) Rules 1958, This shall not, however, confer upon these officers any claim for appointment, on practising terms, to any of the posts which have been made lion-practising under this order. Nor shall this be construed as any indication that they will cease to be liable to be transferred to any post In the cadre in the exigencies of public service. Nor shall this be construed as any indication that they will cease to be liable to be transferred to any post In the cadre in the exigencies of public service. It should also be made clear to the officers governed by the new terms and conditions of service promulgated under the West Bengal Health Service (Cadre, Pay and Allowance) Rules, 1958, or the West Bengal Health Service (Pay, Allowance Promotion of Non-gazetted Medical Officers) Rules, 1959, that by exercising option for private practice under the provisions of the order, they will not acquire any claim for appointment to practicing post only in future and that they shall continue to be liable to be transferred to any post in the cadre, practicing or non-practising, in the exigencies of public service as at present. So, even if the 1965 order were to continue in force even today, and even If the 1990 Act had not been passed, by reason of a transfer in posting merely, a doctor enjoying the right to a private practice in the previous post, could case to enjoy it in the transferee post. The right of private practice, or rather the temporary permission granted for private practice, could therefore not only be withdrawn en masse (more about this in the next topic of the continuing ad interim order) but could also cease to become applicable to individual cases, by reason of a suitable (or unsuitable, depending on the view point) transfer. 19.2.5. The above position of transferability to a non-practising post even under the 65 Order can also be seen from Annexure II thereof, which contains the proforma in which the concerned opting doctor was to indicate to the Accountant General, West Bengal, if he was opting for the permission to private practice, as in that event certain service monetary curtailments would follow. For example, a special selection Grade pay could never be drawn consistently with private practice; moreover, even from the basic pay to be received, 15% would have to be recredited to the Government. 19 2.6. In 1973, the Medical Council of India published recommendations for minimum standard requirement for a medical college for 100 admissions annually. The document is at page 316 in Dr. Mukherjee's paper book at page 325 is reproduced part II thereof, which contains the following condition No 2 : 2. 19 2.6. In 1973, the Medical Council of India published recommendations for minimum standard requirement for a medical college for 100 admissions annually. The document is at page 316 in Dr. Mukherjee's paper book at page 325 is reproduced part II thereof, which contains the following condition No 2 : 2. The teaching staff of all departments of a medical college shall be whole time and. non-practising In institutions where part-time/hony, teachers are employed in 'clinical departments, they should be replaced by whole-time teachers by 1985. In the meantime, such part-time/hony. teachers will only be recognised as teachers provided they put in not less than 4 hours clinical and teaching duties per day in one teaching institution. These recommendations cover the minimum requirements of under graduate medical education. Additional teaching staff will be required in institutions where post-graduate education is also imparted. Additional teaching staff will also be required where the work load involved In patient care/clinical laboratory work/field work is heavy or of a specialised nature. If there is no factual nexus between better teaching and non-practice of teachers, why should the Medical Council go in for it? Also noteworthy is the recognition of pressure on teaching time when patient care of a heavy or specialised type is involved. If the teacher doctors of the new W B.M.E.S. are to be exclusively (s. 7 first proviso) involved in the patient care of the notified (s. 6) institutions, then for the teaching hospitals, the aspect of. Non-practice assumes an important and understandable role. 19.2.7. The year 1982 saw the ineffectual attempt by the Government to withdraw the relation as to private practice granted seventeen years earlier. The next year, that is in 1983, the Central Ministry of Health and Family Welfare published a national health policy (Dr. Mukherjee's appeal at page 232). Paragraphs 7 and 10 thereof were placed by Mr. Gupta Paragraph 10 states the desirability of 'phasing out' the system of private practice of government doctors. It is only a bureaucratic euphemism for stopping private practice. The point of appropriate compensatory nonpractising allowance is also mentioned in paragraph 10. If the class imposition of non-practice for government doctors in general (teachers or no) is thus not unnecessary, there can surely be no lack of Constitutional nexus as between Don-practice of teacher-doctors and the object of better government medical service. 19.2.8 Though referred to by Mr. The point of appropriate compensatory nonpractising allowance is also mentioned in paragraph 10. If the class imposition of non-practice for government doctors in general (teachers or no) is thus not unnecessary, there can surely be no lack of Constitutional nexus as between Don-practice of teacher-doctors and the object of better government medical service. 19.2.8 Though referred to by Mr. Gupta, I do not find the statistical report of 1990 for the years 1987 and 1988 of the department of obstetrics, gynaecology and family welfare to be of much relevance (p. 216 of Dr. Mukherjee's paper book), unless it be to show that under the pre-Act system then obtaining, a large number of cases of different types were also treated and looked after. There is no dispute on that score. 19.2.9. As the learned Judge in the Court below has also clarified to his Lordship's judgment, a certain 'second report' of the subject committee on medical education was presented on the 23rd of March 1990, which, though on the face, of a date later than either the promulgation of the relevant ordinance (7.2.90) or the introduction of the bill in the Assembly. (15.3.90), must not be taken to be reflecting the views and assessments, on which base or ground, the legislation was constructed the report (Pp.242. 271 of Dr. Mukherjee's paper book) is an extensive one, occupying the said pages in quite close print. -On the composition of the committee, of total 'strength twenty three, the writ petitioner commented during argument, that only five were doctors and the rest politicians; the reply of Mr. Ghosh was that out of the twenty three, only five were doctors. 19.2 10. Mr. Gupta made several comments on the report. He said that only a very small put of the big report bad anything to do with the question of non-practice by teacher doctors. The bulk of the report is concerned with the type of medical attention needed. i e., the need for attending to broad and rough rural medical needs' for the many; rather than to the individualized and sophisticated urban needs; the report is concerned with such things as fallen standards and lack of discipline. It is only at one place (p. 250) that the report mentions about the non-existence of a separate teaching cadre. i e., the need for attending to broad and rough rural medical needs' for the many; rather than to the individualized and sophisticated urban needs; the report is concerned with such things as fallen standards and lack of discipline. It is only at one place (p. 250) that the report mentions about the non-existence of a separate teaching cadre. It goes on to say that suggestions for improvement in teaching did not come from the teaching community, The Committee is stated to have taken the evidence of the presidents and secretaries of the students' unions, and it is only in this short paragraph that direct allegation is found as against the system of private practice of doctors being instrumental to falling teaching standards That paragraph is as follows : The Committee took' evidence of the Presidents and Secretaries of the students unions of all the medical colleges. All of them agreed about the pitiable situation of medical education. Their main complaint was that the teachers' were mostly busy in their private practice and least concerned about the training of the students. They failed to answer why they are not' organising movement so that the teachers seriously undertake their assignment of, teaching the students They were perhaps apprehensive that if they take a move they might be victimised during the examination. The students organisations never discussed the need of National Medical Education Policy. This was also apparent that in the students organisations whatever movements they had undertaken was only to ensure a greater number of success in the examination and not to improve upon the standard of the medical education and make it purposeful for their future life. 19.2.11. Presidents and Secretaries of student unions may be the spokesmen for the student community for certain matters, but they are not necessarily also either the most brilliant of students or the most appropriate persons for guiding the course of teaching policies. I am unable to accept the views of union leaders as ipso facto sound on matters of pure academics. Bur I am not the legislature. Nor is the legislature to proceed on this single paragraph of the report. Nor are the policy decisions of the legislature to be struck down because I do not think first boys do not become union officers. The Courts are not judges of policy but only of Constitutionality. Mr. Bur I am not the legislature. Nor is the legislature to proceed on this single paragraph of the report. Nor are the policy decisions of the legislature to be struck down because I do not think first boys do not become union officers. The Courts are not judges of policy but only of Constitutionality. Mr. Chatterjee in this regard appropriately relied upon the case of State of Maharashtra v. Lok Shikshan Sanstha, reported in AIR 1973 SC 588 I am not to decide the policy as to whether the feelings of Union leader students are to be adopted in academic decisions, or the feelings of those who obtain the best marks. Nexus is all that I can look for, not the perfect nexus not the nexus that I personally would like to find, only the nexus that I am judicially entitled to look for. That nexus exists, even In the statements of the presidents and secretaries. 193. The 1965 relaxations for private practice contained, however, the checks that the government doctor eognging in private practice would still remain a wholetime Government servant ; he would therefore have to be available for government duties whenever necessary, and be would not undertake his private practice within the precincts of the hospital, or In any manner so to as interfere with his responsibilities as a government doctor. On this footing, the argument ran, the further complete ban of private practice was an overimpmition, an unreasonable restriction beyond the scope of any requisite restriction that could have any nexus with the object of bettering either teaching of patient care. As a support of this argument, it was pointed out that no materials were forthcoming showing any indiscipline of any doctors, any breach of the above rules regulating private practice, neither on an individual level, nor on any large scale level by many. It is true that we cannot assume any neglect of government duties by any doctors holding government service. Proof of such neglect, at least in a Court of law, must come in the shape of tangible and reliable evidence. General feelings general 'hunches' general accusation, general references to common public experience are usually quit inadequate for this purpose. It is true that we cannot assume any neglect of government duties by any doctors holding government service. Proof of such neglect, at least in a Court of law, must come in the shape of tangible and reliable evidence. General feelings general 'hunches' general accusation, general references to common public experience are usually quit inadequate for this purpose. But, just as the individual doctor is immune front attack in a Court of law regarding any allegations of his breach of government service duty, so is the act of legislation immune also from attack In a Court of law unless any Constitutional lapse is made out; the unreasonableness of assuming any nexus between ban of private practice and raising of teaching or p1tient care standards must be demonstrable, and must be demonstrable to the degree of unconstitutionality. Such unreasonableness as is Constitutionally for bidden cannot be demonstrated by any mere logical or theoretical inferences, nice distinctions, or fine balances; it must have some element of the shockiI1g, or of the assured, or of the adoption of a constitutionally forbidden principle. Even in the context of. doctors not being proceeded against of doctors devoting themselves to duty full time without any dereliction (as must be assumed), even then, I do not find in the imposition of non• practice for the teacher doctors anything shocking, anything of the absurd, or anything flatly opposed to any fundamental Constitutional principle. 19.4. Again It was said that there is no evidence that in already non-practising institutions (like the Tropical School of Medicine, or the Institute of Post Gradate Education and Research) the teaching standard was any the higher than in the until now practicing Institutions, especially on the clinical disciplines. It was said that teachers become better teachers by gaining experience in wide private practice. It was said that Dr. Saibal Gupta, a super specialist and an M.Ch. could not have gained his experience only from government service ; for one thing, government institution simply do not possess the many sophisticated equipments, from the constant use of which, Dr. Gupta’s expertise is derived. Dr. Gupta can teach better simply because he knows what others don’s. As I say, all these arguments may be very good in a cabinet meeting ; but in Court of law something more is needed. Gupta’s expertise is derived. Dr. Gupta can teach better simply because he knows what others don’s. As I say, all these arguments may be very good in a cabinet meeting ; but in Court of law something more is needed. Something to hit one on the head with, and no escape – that sort of a point must come up before the Judiciary shall feel called upon to interfere with the Legislature. Even one such stark point is enough ; in the case however, we have many points but none stark enough for success on the issue of unconstitutionality. 195. It was also said that if a ban of private practice is not caned for in the case of doctors engaged in patient care, why should it be at all necessary in the case of doctors entrusted with teaching and patient care? Mr. Chatterjee, in my opinion appropriately, commented that if all doctors want a ban, he would recommend it as per their request to the minister concerned Again. the government is to legislate choosing its own policies. If its policy for the present is to create a cadre for special service to students and patients in the largest of the government medical institutions, the courts have no right to ask the question why the government is not also 'doing the same thing for the lesser urban institutions as well as for the rural institutions. 20 1. Then we come to the 1982 interim order. The order was passed by a single bench of this Court on 4.10.1982. and by that Order a memorandum and a notification both dated 8th June, 1982 were rendered ineffective. The copies of these two documents are annexed 'at pages 133 and 135 of Dr. Saibal Gupta's paper book and at pages 84 and 85 (part) of Dr Mukherjee's paper book The: memorandum is an exercise of power by the Governor vested in him inter alia by rules 27 and 19 of the 1958 and the 1959 rules respectively; the notification of 8682 was issued by the Governor straightway under the Article 309 proviso. - By the memorandum the 1965 government order containing the relaxation regarding private 'practice was rescinded, By the notification, running to a few pages. a separation of teaching stream was made, with non-practising status and with specific pay scales as indicated in the notification. 20 2. - By the memorandum the 1965 government order containing the relaxation regarding private 'practice was rescinded, By the notification, running to a few pages. a separation of teaching stream was made, with non-practising status and with specific pay scales as indicated in the notification. 20 2. We were not taken through the 1982 notification by any party in any great detail, but a bare look at it is sufficient to indicate that the same scheme as is the inspiration for the 1990 Act was also the inspiration for the 82 memorandum and notification Mr. Maitra for the Health Association relied upon two cases in this context. The first is the Good Year Case, reported in 1990 (2) SCC 71 , and reliance was placed upon paragraphs 44, 45 and 46 at page 99 of the report The s. 24 (3) of the particular Haryana Act under consideration is quoted there and the quotation shows that the State legislature expressed that the provisions of the Act would prevail notwithstanding any judgment of any Court to the contrary. Justice Sabyasachi Mukherji pointed out that as the substantive provision of law had been left uncharaged, the impugned Act purports to give a direction to ignore the judgment delivered on the yet unchanged substantive provision, Such overruling of judgments is beyond the 'competence of the State legislature. 20 3. In this case, the 1990 Act does not overrule the interim Order of Justice Basu. A substantive Act has been passed in 1990 and the stayed memorandum and notification of 1982 are being given a go bye. If two authorities have power to do the same thing, and the action of one of the authorities has been, for some reason or the other, stayed, then the power of the other authority to take the same action over again is not necessarily taken away. The 309 proviso power exercised by the Governor in 1982 has been stayed; the interim order subsists, the writ is pending and there never was any appeal. Now the State legislature has passed an Act for, let us assume, substantially the same purpose. There is no direction therein to disobey the order of T. K. Basu, J. The Act stands on Its own feet. Now the State legislature has passed an Act for, let us assume, substantially the same purpose. There is no direction therein to disobey the order of T. K. Basu, J. The Act stands on Its own feet. The Act can no doubt be examined for its constitutionality, as we have already sought to examine it, but there is nothing in the Act which seeks to revive the 1982 memorandum or notification as such; those two are accepted as gone, and that is why the legislature bas resorted to its co-extensive power to regulate government medical service conditions. See also the case in Appendix V below, in paragraphs 39 (a) and 39 (b). 20.4. The order case relied upon by Mr. Maiera in this context is that of Gulshan Kallu, reported in AIR 1981 SC 1668 . Headnote (A) was placed (or emphasizing that the State should set the standard for compliance with Orders of Court. I am unable to detect any violation of any order of Court by the legislature. Nobody bas gone so far as to urge that because of the interim order of 4.10.82, that state legislature was incompetent to legislate on the same matter for preservation of the basic structure of the Constitutional set up. It would, to my mind, with all due respect to everybody' concerned, be making a mountain, if not of a molehill, at least then, of a very loosely heaped mound of earth. 21.1. In so far as the arguments contained in paragraphs 11 (h) and 11 (i) are concerned, it must be borne in mind that an Act cannot be challenged unless it is outside the legislative competence, or is violative of the express- Constitutional provisions, or is repugnant to superior law already existing, or is contrary to the implied basic structure of the Constitution. It is not possible to strike down an Act for 'colourable exercise of legislative power, unless such exercise has also violated the Constitution, say, the equality Article. Having already examined the Constitutionality of the Act, there remains no further residuary sphere of examination under the bead, say, of colourable exercise of power. 21.2. Again, on facts too, if the Act has been passed in the main, for control of 400 posts in the main medical college hospitals of the State, there is nothing wrong with that. Having already examined the Constitutionality of the Act, there remains no further residuary sphere of examination under the bead, say, of colourable exercise of power. 21.2. Again, on facts too, if the Act has been passed in the main, for control of 400 posts in the main medical college hospitals of the State, there is nothing wrong with that. That the Act has been made unnecessarily big looking in ambit is no reason for striking it down. The grievance made by Mr. Nigam Kumar Chakraborty that unqualified persons have been given teaching posts, and the Act is made to entrench these undeserving government favourites is not an allegation to be found in the main writ petition of the Health Association for whom Mr. Chakraborty appeared as junior to Mr. Maitra. The allegation is made only in the stay petition in the Appeal Court, in sub• paragraphs 28 (f) and 28 (g) (petition verified by an affidavit of Phoni Bbusan Mandai dated 9th August, 1991). There are no particulars for these strong allegations. Mr. Somnath Chatterjee for the State justly took exception to these unfounded attacks against the State. He rightly said that appointing unqualified teachers is a serious allegation against the State and it cannot be made only in the air. Not one name even is to be found anywhere in the allegations. 21 3. The Act is therefore good, so are all the notifications issued thereunder. Non-consultation with the general body of doctors is no ground for invalidation of the Act. Even where a mere service committee, which is an inferior body than the legislature itself, is to consider the suitability of persons for permanent appointment in a newly constituted service, the principles of natural justice have no application (see the case of S S. Moghe v. Union of India, AIR 1981 SC 1495 at paragraph 34 at pages 1511 and 1512); thus, before concluding about the suitability of persons with teaching experience for filling the new medical education service, the legislature was not bound, upon any principle of law, to hear any individual doctor or any specified group of doctors. The legislature is competent to pass an Act relating to doctors, even after consultation only with theosophical experts if such is the cabinet choice, and the Act will not be bad therefor, provided the express provisions of the Act can stand consistently with the Constitution. 22.1. The legislature is competent to pass an Act relating to doctors, even after consultation only with theosophical experts if such is the cabinet choice, and the Act will not be bad therefor, provided the express provisions of the Act can stand consistently with the Constitution. 22.1. Certain directions were given in the Court below, which are cross-objected to by the State. The portion of the judgment in this regard is as follows: Now let me come to a vital issue of those doctors who are in the Government service and allowed private practice but at the same time they are at the verge of superannuation. Their case must be taken on sympathetic consideration not as a policy matter but on humanitarian ground and they must be allowed some concessions in the new set up. If, at the fag cod of their Career they are abruptly thrown out of service suddenly it will be a jolt for them and disrupt their programme of rehabilitation after retirement. There who are younger in age and have several years to go for retirement they of course can manage and arrange their future programme but it will be quite difficult for the old guards to be abruptly off the service. In this connection some concessions must be provided to those who are going to be superannuated in near future. Here a cut' off year must be given for the ends of justice to the old guards who are to retire on or before 31st July,1993 and their service and private practice should not in any way be disturbed till, the date of superannuation as mentioned hereinbefore. I also want to point out the two Interim Orders I made on 23rd August, 1990 and 5th September, 1990 whereby I directed 200 and 400 doctors, respectively, to hold office on ad hoc basis under the West Bengal State Health Service Act, 1990 and on condition that their absorptions and/or, appointment would by the result of the writ applications requires direction as to how they will be dealt with. In view of the discussion made hereinbefore, I hold that the West Bengal State Health Service Act, 1990 with all the Rules made thereunder are valid, lawful and intra vires the Constitution of India. I further hold that the Act is in conformity with Arts. In view of the discussion made hereinbefore, I hold that the West Bengal State Health Service Act, 1990 with all the Rules made thereunder are valid, lawful and intra vires the Constitution of India. I further hold that the Act is in conformity with Arts. 14 and 19 of the Constitution, and within the legislative competence of the State Legislature and is not hit by Art. 254 of the Constitution. I direct the State-respondents to prescribe all the remaining Rules and necessary Notifications and publish the same in the Gazette at the earliest and not later than 31st August, 1991. From the date of publication In the Gazette of all Rules and Notifications, 15 (fifteen) clear days' time shall be given to exercise option to the doctors which shall be notified by the respondents through Gazette as well as by public notification in at least two English and two Bengali newspapers of largest circulation published from Calcutta. After the last date of the option is over the Government of West Bengal shall implement the West Bengal State Health Service Act, 1990 and shall take into consideration all the options exercised at a time together. Those doctors who have already exercised options and come within the purview of Interim Orders of 23rd August, 1990 and 5th September 1990 shall also be treated along with the rest of the doctors and fresh absorptions should be made because they were bolding office subject to the result of the writ applications. I further direct that those doctors who are allowed private practice and who are to be superannuated on or before 31st July, 1993 shall not be disturbed from their position until their retirement and shall draw all the retiring benefits in accordance to their conditions of service. All the writ applications are dismissed with the aforesaid directions upon the State-respondents. There will be no order as to costs. The Court thanks the eminent Counsels for their assistance and help during 29 days of hearing. Let xerox copy of the judgment be made available- to the parties on usual undertaking and upon compliance of necessary formalities. After the judgment is delivered, the learned Counsels appearing for the petitioners pray for stay or the judgment for two weeks. The Court thanks the eminent Counsels for their assistance and help during 29 days of hearing. Let xerox copy of the judgment be made available- to the parties on usual undertaking and upon compliance of necessary formalities. After the judgment is delivered, the learned Counsels appearing for the petitioners pray for stay or the judgment for two weeks. In view of my Order the Act In question shall be implemented by the Government of West Bengal after 15 clear days notice for option to the doctors which shall be published in the Gazette us well as four Newspapers as indicated in the, Order. The learned Counsels want two weeks stay of the order whereas by my Order they get 15 days' time before which no implementation of the Act is possible. As such I do not find any reason to give the stay order. The prayer is accordingly refused. 22 2. With the greatest of respect to the learned Judge in the Court below. the direction for not disturbing doctors who are to retire by 31st July' 1993. is somewhat arbitrary and a sort of judicial legislation. I am unable to let this stand. There is also no reason why an 'old guard' should 'be -abruptly off the service, unless be is in some post in a s.6 notified teaching hospital institution and values both his private practice and his posting in a prestigious institution (like Dr. Sukumar Mukherjee; may be, who is a well known private practitioner as well as the professor and head of the department of medicine in the tradition heaped Medical College, Calcutta), so that be would rather give up service than either his private practice, or his prestigious posting. No 'humanitarian ground is easily discernible for preserving of service of such doctors with un-give-up-able private practice. 22.3. I have already discussed the effect of non-constitution of the new West Bengal Health Service and the continuation of doctors under current condition without them going into the newly constituted teaching stream. On this basis the direction given by the learned Judge in the Court below that "all the remaining rules and necessary Notifications" be published "not later than 31st August, 1991" is not, with respect, so necessary as appeared to the learned Judge. On this basis the direction given by the learned Judge in the Court below that "all the remaining rules and necessary Notifications" be published "not later than 31st August, 1991" is not, with respect, so necessary as appeared to the learned Judge. Moreover, in my opinion, a mandamus for undertaking a delegated legislative function within a date fixed by a Court of law, with respect, cannot be issued. It is not permissible judicially to interfere with legislative freedom as it is not permissible for the legislature to interfere with judicial freedom. It was open to the learned Judge to strike down any rules or absorptions in posts as unreasonable in the circumstances (which I have held was not the case), but directing completion of legislative activity, on the judicial assessment that it is not as complete as it should have been, and thus to save what was felt to be incomplete rule making, is, to my mind, with respect, an impermissible procedure in a constitutional action. 22 4. On 23rd August and 5th September, 1990, by interim orders made in the Court below, roughly the following were ordered ; i) Earlier interim orders (14.8.90) restraining appointment of doctors who had already exercised' non-practising teaching option, and restraining disturbance of practising doctors from holding teaching posts, were continued; (ii) Without prejudice,' the time to exercise option was extended till 11.9.90 (the time to exercise had expired after a lapse of 90 days from 25.5.90. on 22.8.90); (iii) the absorption and appointment of 200 option exercising doctors already made were directed to abide by the result of the writ; . (iv) The absorption and appointment of 400 option exercising doctors under process were restrained from further progress, but they were allowed to hold office ad-hoc, .subject to the result of the writ. 22.5. The above restraints, some what relied upon even in the final judgment in the Court below, must all go now. All absorption, appointment and exercise of option made must be treated as valid and good and action must be taken on that basis. Sufficient time for exercise of option has been available to any doctor wishing to exercise it, The State must fix seniority amongst the concerned doctors In accordance with law, as it , must make appointments in the medical education Cadre in accordance' with law. Sufficient time for exercise of option has been available to any doctor wishing to exercise it, The State must fix seniority amongst the concerned doctors In accordance with law, as it , must make appointments in the medical education Cadre in accordance' with law. It is beyond the scope of the present inquiry to lay down derails about such hypothetical Cases, as for instance, where an otherwise senior: doctor sends in a non-practising teaching .option some days later than a junior doctor. Such cases have to be resolved after disputes, if any, have actually arisen. 23. In the result, the appeals fail and the cross-objections succeed. All the writs are dismissed-there will be no orders whatsoever thereon. Thirty seven doctors applied to be made parties to the appeals on the basis of the advertisement of Dr. Mukherjee's matter in the Statesman of 4.9.90. Apart from the arguments noted above none others were keen to be heard, though we bad made it clear.... that anybody with any point to make was free to do so. The State has said that there is (naturally) no vindictiveness on its part and the doctors were entitled to test their rights; such being the (fair) attitude, no order as to costs. 24. It remains only to 'give by way of appendices the other cases referred to by Counsel during argument, and short notes as to in what manner those were relied on and their relevance to the present case. Appendix I, being the other cases relied on by Mr. Maitra. 1. (a) In the case of K. T. Shastri ( AIR 1990 SC 598 ) the retirement of Shastri at 58 was held to be discriminatory and bad, because a higher retirement age of 60 had been made available to one wing of a trifurcated service, which was originally unified. The three new services had the same service conditions and the services of employees were interchangeable. Thus it was held that in the context of parallel services, there was discrimination by not also giving the benefit of the higher age of retirement to Shastri. l.(b) In our Case, if the option to be a teacher is to be given to all, then the number of required teachers (1400) will fall far short of the possible optees (8000). l.(b) In our Case, if the option to be a teacher is to be given to all, then the number of required teachers (1400) will fall far short of the possible optees (8000). Thus the choice or option given as a class right to teachers alone has a nexus with the practicability of the object sought to be achieved by the Act. There future teachers being non-practising, they can well have compensatory benefits like higher pay or higher retirement age; the new (future) teaching service and the practising non-teaching service are not truly parallel. 2. (a) Paras 10 and 11 of Mallikarjuna Rao"s case ( AIR 1990 SC 1251 ) were relied upon. It is said there that the High Court examines the constitutionality of legislative and executive use of power. It is not to sit in appeal or advice. 2. (b) No dispute, no distinction 3. (a) The case of P. K. Roy ( AIR 1968 SC 850 ) was relied upon, especially para 9, for saying that the Act should have been preceded by a scheme of equation of posts, for fixing seniority etc and that representation in this regard should have been called for. 3. (b) Rules of natural justice do not apply to legislative procedures, nor Is such primary legislative process subject to scrutiny regarding the reasonableness of the preliminary steps taken, as in the case of exercise of delegated powers, like, as the one in the case cited for drawing up of gradation lists. 4. (a) The case of N. P. Verma ( 1989 Vol. I Supp. SCC 748) was also relied upon to submit that in case of integration of service it was the concern of the Court to see that proper equation of posts is made, so that the fitment of person to post is made in accordance with functional similarity and co-equal responsibility. 4. (b) The case does not help in deciding the validity of Act or rules but would be relevant when the Act is being implemented and the optees are given different appropriate teaching posts (largely under s. 12 powers), or the non-optees are given the best appropriate posts in non-teaching institutions, commemorate with their functional standards and responsibility. 5. (a) The case of R M. Ramual (1989 Vol. 5. (a) The case of R M. Ramual (1989 Vol. 1 SCC 285) was referred to again regarding seniority fixation, the just principles to be followed in that regard, and the power of the Court to examine the same. Paragraph 6 the report was relied upon to show the factors that may be relevant in determining the appropriate person to post equation. 5. (b) As I have said about Verma's case; (see 4 (a) and 4 (b) above) seniority fixation comes after the Act and the rules. If a present non-teacher, in a now teaching institution (s. 6), happens to come into the education service otherwise than by way of option, (e.g., s. 14 (2A) or even• by way of option for having held a teaching post in the past, then the fixation of his seniority with respect to others is a matter of implementation of the new scheme. We cannot invalidate the Act because there may be nice possibilities of seniority fixation disputes. Moreover, largely speaking. privately practising doctors would have to go out of teaching institutions altogether. making the task of seniority fixation rather easy: whether the task of maintaining teaching standards will also become easier is a question for the policy makers, not for us. 6, (a) Royoppa (AIR 1974 SC 55) was relied upon for the proposition that pay alone is not the determining factor for equating two posts. 6, (b) True, but if practising teachers with less pay give up practice, their posting in the teaching service will not necessarily be made according to their lesser pay and not according to their present teaching post holding. Practising doctors were not entitled to special selection grade pay, but the State has not suggested, nor is there anything in the Act or the rules to suggest, that a doctor with non-practising special selection, grade is bound to be posted higher than a hitherto practising teaching doctor who chooses (are there any ?) to give up private practice to come into the teaching stream. 7. (a) The case of B. Prabhakar Rao (1985 Supp. SCC 432) was relied upon for the purpose of calling upon the State to bring forth adequate materials for establishing the constitutionality of the Act, on the twin test of reasonableness of classification and nexus with object. 7. (b) Sufficient material has come forth and these I have referred to already. (a) The case of B. Prabhakar Rao (1985 Supp. SCC 432) was relied upon for the purpose of calling upon the State to bring forth adequate materials for establishing the constitutionality of the Act, on the twin test of reasonableness of classification and nexus with object. 7. (b) Sufficient material has come forth and these I have referred to already. The twin tests I have also dealt with. Regarding the onus upon the party assailing for establishing the unconstitutionality of an Act, it is best to give here the reference of one seven judge and three five judge benches of the highest court of the land, which were relied upon by Mr. Dipankar Ghosh for counteracting the observations in Nakara ( AIR 1983 SC 130 at para 16 at page 135). Mr. Ghosh's references are, Pathumma's case (71) AIR 1978 SC 771 at para 6 at page 775 (presumption in favour of constitutionality of a statute onus to prove its invalidity lies on the party which assails); Dalmia's, case AIR 1958 SC 538 at p. 547, right column, bottom; Pema Chibar; AIR 1966 SC 442 and Jalan Trading, AIR 1967 SC 691. Also Karunanidhi, AIR 1979 SC 898 , para 24, p. 907 was referred to. 8. (a) The Delhi Transport case ( AIR 1991 SC 101 ) was relied upon for submitting that the vice of excessive delegation remains a vice even though high authorities ale involved in the task of subordinate legislation; and that guidelines and predictable norms are always preferred. Note the slightly contrasting view in 57 (a). 8, (b) I have already discussed the special situation in government service matters and that the process of service regulation is not necessarily an essential legislative function. It may also be legislative, but Article 309 proviso is enough for all practical purposes, though the exercise of power thereunder is less 'safe' from judicial supervision than primary legislation. Also the Act in the above view, lays down sufficient guidelines; the rest is to be worked out by the executive, after rules have been made now under the Act instead of directly under Article 309 proviso, by the Governor. 9(a) Paragraph 57 of the case of Triloki Nath Khosa was relied upon (1974 Vol. I SCC 19 at page 42) to attack the possible sub-classification of the administrative unit of the new health service, as and when the same is constituted. 9(a) Paragraph 57 of the case of Triloki Nath Khosa was relied upon (1974 Vol. I SCC 19 at page 42) to attack the possible sub-classification of the administrative unit of the new health service, as and when the same is constituted. (see also 47). 9 (b) A general proposition about 'micro-distinction' or about overdoing classifications is of no help. The sub-classification of the administrative unit, as and when made, has not been shown to suffer from any constitutional infirmity; not all sub-classes are bad in law and an administrative wing coulped with public health duties is clearly distinguhhable frern general patient care in hospitals. 10.(s) Patwardhan's case ( AIR 1977 SC 2051 ) was relied upon for the purpose of drawing a parallel between seniority being dependent in Patwardhan's case on the fortuitous circumstance of confirmation (para 48 at page 2067), and the option to the teaching cadre being available here on the fortuitous (so submitted) circumstance of as doctor having held a teaching post. 10.(b) In para 39 Justice Chandrachud said that confirmation is one of the inglorious uncertainties of Government Service. It was laid down as a matter of Indian Government Service law that confirmation cannot effect seniority The holding of a teaching post is not fortuitous at all. Unless the contrary is shown, there is no way but to assume that only those doctors willing and able to teach have been appointed as teachers. Even if there are numerous other doctors eager to teach and supremely competent for that purpose, yet the State cannot be forced to accept more teachers than needed (1400) We have not been shown any instance of any doctor clamouring for a teaching post or complaining about wastage of his idle teaching talents. There is nothing fortuitous about the past teaching appointments-the ones who did not get 'it never' raised a fuss about it, the ones who got it, got it on a government assessment; there is no element of the toss of the coin discernible. 11.(a) Arun Kumar Chatterjee's case (1985; Vol. 2 SCC 451) was relied upon (esp. para 12) to emphasize that loss of seniority to a Government servant with loss of chance of promotion and more pay is a serious matter. 11.(b) Of course, it is, but I see no illegal loss of seniority yet of any particular doctor: I have discussed the in 4(b), 5(b), 6(b). 2 SCC 451) was relied upon (esp. para 12) to emphasize that loss of seniority to a Government servant with loss of chance of promotion and more pay is a serious matter. 11.(b) Of course, it is, but I see no illegal loss of seniority yet of any particular doctor: I have discussed the in 4(b), 5(b), 6(b). 12.(a) The case of Sitaram Sugar Co. ( AIR 1990 SC 1277 ) was relied upon and reference made to paras 48 and 51 thereof, in the latter of which a quotation from Justice Sabyasachi Mukherjee's judgment in the Renusagar case ( AIR 1988 SC 1737 ) also appears. These authorities are no doubt good for the proposition that the exercise of power whether legislative or administrative, must not suffer from manifest error or arbitrariness. 12. (b) But these relate to delegated legislative power. Primary legislation can be set aside for breach of Article 14, but the standpoint of examination in such case is not error apparent; arbitquiness in the case of primary legislation must be present either in the classification or in the nexus, or else, allegations of arbitrariness in the general content of primary legislation will not be entertained. We have seen how the grant of teaching option to the hitherto teachers only has passed this limited test of arbitrariness. Were it done by way of a subordinate legislation, we would have to test for the general arbitrariness of content also, i.e., whether it was reasonable in the circumstances, considered generally, to grant teaching options to teachers only, or did it have elements of arbitrariness sprinkled on it. 12. (c) It is to be noted that the subordinate legislation', being the notifications under the Act, have not been separately attacked for error apparent or arbitrariness. For example, nobody said that the grant of 90 days time for exercising options was unreasonably short (or long). 13. (a) Paragraph 11 of I. T v. Mahindra ( AIR 1984 SC 1182 ) was shown, and the quoted passage from Professor de Smith. 13. (b) The reference relates to judicial review of administrative or executive action. It has no direct application to Act. No body can expect Professor de Smith in England to be writing anything which can help in the matter of striking down Acts of 'he Supreme legislative body. 13. (b) The reference relates to judicial review of administrative or executive action. It has no direct application to Act. No body can expect Professor de Smith in England to be writing anything which can help in the matter of striking down Acts of 'he Supreme legislative body. If I remember anything of Professor Maitland's Constitutional History (it reads like a Chase novel), only two things the British Parliament cannot do - it cannot by an Act letter its own legislative power in future and it cannot stop one in the position of the old freeholder from contesting for a seat in Parliament. We In India know of many other thif1gs that cannot be done in relation to any of the three lists. 14. (a) The case of Ram Prasad v. Slate of Bihar ( AIR 1953 SC 215 ) shows the operation of Article 14, where two lessees were singled out and denied by an Act the opportunity of having their rights decided in a Court of law. Their transaction was declared by the Act to be a nullity and contrary to law. That the legislature is not to do, but the Court. 14. (b) The case illustrates unreasonable singling out, unreasonable classification, In our case I have failed to see any singling out of individuals, any attempt to brand particular doctors; the legislation in made in a general way, as is proper. 15. (a) The case of S. B. Mathur ( AIR 1988 SC 2073 ) was relied upon regarding equal-status posts. It would be unjust to treat posts alike if there is substantial difference in pay scales, or status in service of responsibilities to be shouldered. 15. (b) I have said that the question of post equation will not arise till the stage comes when the doctors retainil1g private practice, and thus ousted from s.6 teaching hospital institutions, fall to be posted outside, Then the best equation has to found out. It cannot be that institutions which need for the public good to be made non-practising (that is what the State feels and we do not find the feeling to be unconstitutionally high pitched), cannot be so made, because doctors will not have a prefect equation of posts outside. A post equation is not superior to primary legislative authority. 15. It cannot be that institutions which need for the public good to be made non-practising (that is what the State feels and we do not find the feeling to be unconstitutionally high pitched), cannot be so made, because doctors will not have a prefect equation of posts outside. A post equation is not superior to primary legislative authority. 15. (c) Also, the treatment of equal posts in an equal manner has not been transgressed in the Act. Practically all teaching hospital posts have become non-practising by reason of the s. 6 notification regarding the 13 main institutions. 16. (a) The Tuta Iron Case ( AIR 1972 SC 1917 ) was relied upon (para 11 at p 1922) for emphasizing the• impermissibility of excessive delegation. 16 (b) have held that in government service regulation the 'widest possible delegation is permissible as, under the Constitution, the legislature and the executive (acting through the Governor), both operate on the 'same filed. In fact, pure service Acts are rather rare. We usually deal with only' Governor's notification, or executive orders. Similarly, the case of Horak Chand v. Union of India ( AIR 1970 SC 1453 passage relied on at page 1465) which also deals with excessive, delegation, loses importance in a part XIV matter like the present. The Delhi Municipality case (7 judge, 11R1968 SC 1232) was also referred to in this regard (excessive delegation), but in view of what is already said I do not have anything to add regarding this high authority any further. 17. (a) Roop Chand's Case ( AIR 1989 SC 307 ) was relied upon and the passage at p. 312 cited. The case concerns adoption of the C.P.W.D. recruitment rules by the Delhi Development Authority. The passage cited contains the proposition that though it is constitutionally permissible in rule making processes to recognize pre-existing inequality, yet it is not permissible to generate or aggravate inequality, or blow up or magnify unsubstantial or microscopic differences. 17. (b) The teaching post holding criterion is real, pre-existing and substantial. Its recognition is the Inspiration for constitution of the teaching cadre. If the issue of non• practice (which is separate from the classification amongst teachers and non-teachers) is left out, then no grievance is forthcoming from' any particular doctors who want to be teachers but cannot be because of some other impediment in the Act than non-practice. 18. Its recognition is the Inspiration for constitution of the teaching cadre. If the issue of non• practice (which is separate from the classification amongst teachers and non-teachers) is left out, then no grievance is forthcoming from' any particular doctors who want to be teachers but cannot be because of some other impediment in the Act than non-practice. 18. (a) 'In the case of N Abdul Basheer (1989 Vol. 2 Supp. SCC 344) graduates and non-graduates once promoted as Excise Inspectors had no separately special responsibilities. Thus the difference in promotion ratio between graduate and non-graduate preventive officers was held to be violative of Article 14. 18. (b) The teaching cadre is not a promotional cadre at all. Doctors are to opt for it if they have been teachers and have also decided to give up private practice. In that case they will have a higher retirement age and' higher pay. With respect, I do not see much relevance in the citation, or in the next cited case of M. P. Singh (1987 Vol. 1 SCC 592) which is rather an equal work equal pay case. 19 (a) Jaisinghani's case ( AIR 1967 SC 1427 ) was relied upon and headnote (C) was placed to assert that unguided discretion is contrary to the rule of law, and that powers vested must be such as are exercisable• only within predictible limits. It was' said that posting to the teaching cadre under s. 12 had no guidelines' anybody could be posted anywhere ; that inter se seniority was left to executive prescription under s. 17A without any guideline ; that under s. 19A to pay turvy promotions could be made. It was asked rhetorically whether it was permissible therefore to post a professor as a reader or vice Versa. 19. (b) In service matters, posting, seniority fixation etc. are done usually by executive orders or State made rules such posting and service incidents cannot be made or determined whimsically or arbitrarily. Even without the: 90 Act, service would continue under executive discretion. The Act does nothing more than leave to the State and the executive what was already left to it, with only the principal changes of making big institutions non-teaching and staffing them with non• practising teachers. If within the framework of the Act posting or seniority fixation is still made arbitrarily or whimsically, redress can be had by a constitutional writ. If within the framework of the Act posting or seniority fixation is still made arbitrarily or whimsically, redress can be had by a constitutional writ. The Act neither seeks to, nor can. abrogate the constitutional safeguards regarding state service incidents. 19. (c) The next citation of Baleshwar Das's case ( AIR 1981 SC 41 ) is most opposite in this context. It was ruled there that while rules regulating service are within the executive power of the State, or its legislative power under the 309 proviso, even so, such rules have' to be reasonable, fair and not grossly unjust (para 20), Thus any seniority prescription under s, 17 A, even if made by general rules, will be subject to checks. No other circumscription of power is necessary or feasible. 20.(a) Olga Tellis' case ( AIR 1986 SC 180 ) was referred for saying that apart from the question of legislative competency proper adoption of procedure is also important. 20.(b) T see no procedural unfairness anywhere in this legislation nor the possibility of the same a, any necessary result of this legislation. 21. (a) Relying on the case of Kashmir University v Mohd Yasin ( AIR 1974 SC 238 ) it was said once an Act has been present regarding appointments, the Act has to he followed, and appointments de hors the Act would be subversive thereof. Thus it was said,- the large body of the residuary non-teaching doctors, who have been left hanging in the air (so the argument, went) will have no-appointments at all. 21.(b) When dealing with S.11, I have said that nobody has been left hanging in the air. The old service goes on, till there are absorptions in the new non-teaching service, as and when constituted (if at all) upon a post to post equation - This post to Post equation, needless to say, has nothing to do with the person to post equation which calls for application of principles already discussed. 22 (a) At the very end of his arguments Mr, Maitra only touches upon the repugnancy issue but left it to be argued more fully by Mr. Siddhartha Sankar Ray However, Mr. Mjitra did refer to the case of Mr. karunanidhi ( AIR 1979 SC 898 ) and referred to the four tests of repugnancy laid down therein. 22. 22 (a) At the very end of his arguments Mr, Maitra only touches upon the repugnancy issue but left it to be argued more fully by Mr. Siddhartha Sankar Ray However, Mr. Mjitra did refer to the case of Mr. karunanidhi ( AIR 1979 SC 898 ) and referred to the four tests of repugnancy laid down therein. 22. (b) By the third of the tests, (see head not A or para 8) a substantially State list legislation goes out of the repugnancy test. I have already held that the legislation is basically on a State entry, or may be, two State entries 23.(a) The last case cited by Mr. Maitra A.M. Mathur's case AIR 1990 SC 1737 ) was for saying that the comments of the learned Judge in, the Court below about government doctors taking very little interest with their students and patients in the medical colleges and hospitals, and their utilising the medical colleges for the purpose of their commercial benefit and publicity were wholly' uncalled 'for Relying on that judgment it was said that no derogatory remark should have been' passed un1ess it was absolutely necessary. 23 (b) In the passage appearing al pages 243 and 244 of the Health Association paper book, the learned judge in the Court below, with respect, perhaps was little carried away by feelings. There are no allegations against the doctors save of a very general nature. There are no particulars, just as there are no particulars of the allegations about government nepotism in the matter of making of teaching appointments We must, under the circumstances, proceed on the basis that the doctors are reasonably good medical servant, and the government is a reasonably good employer. It is on that basis that I have endeavoured, to the best of my ability, to find reasonableness in the imposition of non-practising restrictions upon the teaching cadre in the best government institutions. 24 (a) Narendra Kumar's case ( AIR 1960 SC 430 ) was cited to emphasize the greater need for a stricter (crutiny) where an Article 19 restriction reaches the degree of total prohibition. (see also 31). 24 (b) I have scrutinized as deeply as I can and as carefully as possible for me. The ban on private practice is in no way unreasonable. Two factors have primarily Influenced my judgment. First, nobody can sail as well with two feet in two boats. (see also 31). 24 (b) I have scrutinized as deeply as I can and as carefully as possible for me. The ban on private practice is in no way unreasonable. Two factors have primarily Influenced my judgment. First, nobody can sail as well with two feet in two boats. How can you teach as well and treat hospital patients as well if you are a circulating private doctor? Secondly, the imposition of ban is not going to hurt anybody's purse much, only his prestige. The private practice and the money remain, only the prestigious professorship goes. That must go, if the government thinks it to be for public good. ,. 25. (a) The Street Hawker's case (Sadan Singh AIR 1989 SC 1988 ) was cited and page, 1999, was relied upon to submit that anything done for the purpose of earning a living comes within Article 19(1)(g). . 25 (b) Quite so. 26. (a) Ajoy Hasla's case ( AIR 1981 SC 487 ) was relied upon at paragraph 16 for expounding the scope of Article 14. 26. (b) T have attempted to follow the principles. Appendix 111 being the other cases relied upon by Mr. Dipankar Prasad, Gupta. 27.(a) K.A. Abbas' case ( AIR 1971 SC 481 ) was relied upon for the proposition that a vague law is to be struck down because it creates a possibility of unguided application. Paragraph 48 was relied upon where it is said that if a law is not construable in accordance with the intention of the legislature, but the persons applying it are in a boundless sea of uncertainty, then the law must be held to offend the Constitution if that law prima facie takes away a guaranteed freedom. 27.(b) I have endeavoured to examine the Act in the main body of the judgment and in substance, I have found the Act to be quite clearly intelligible. The non-practising teachers are separated into the nonpractising institutions and the rest are left, as they are, save for the above change, but might well be later absorbed into the new health service, as and when formed. I have already gone into some other details. 28(a) Jaisinghani's case (see 19(a) and 19(b) above) was also relied on by Mr. Gupta and paragraph 14 placed. 29. (a) Nakara's case, para 16 was relied upon to submit that the Slate must establish Constitutionality. I have already gone into some other details. 28(a) Jaisinghani's case (see 19(a) and 19(b) above) was also relied on by Mr. Gupta and paragraph 14 placed. 29. (a) Nakara's case, para 16 was relied upon to submit that the Slate must establish Constitutionality. The authorities in this regard are given in 7(b) above. 30. (a) The five judge decision in the case Chintamanrao with ( AIR 1951 SC 118 ) was relied upon to emphasize that under An. 19(6) the restriction must not be excessive. 30, (b) I have endeavoured to examine the reasonableness of the restriction both under article 19 as well as under article 14 while examining nexus. 31. (a) The case of Narendra Kumar, ( AIR 1960 SC 430 ) was relied upon at page 18, last portion, for submitting that in cases of total prohibition special care has to be taken by the Court to test reasonableness (see also 24). 31. (b) I have held that there is no absolute ban on practice of any doctor compulsorily imposed under all conditions; thus 1 have concluded that nobody's fundamental right has really been affected Alternatively, I have tested the ban for reasonableness and passed it. 31.1. (a) In reply, Mr. Gupta cited two new cases, the first or which is Ram Jawaya's case ( AIR 1955 SC 549 ). It was cited regarding Article 162 and it was said that even under that Article, by pure executive action a cadre could be constituted; thus. Article 309 proviso does not do anything extra. Accordingly, there is no extra excessive delegation permissible to the State in service matters. 31 1. (b) Just because service regulation is possible under Art 162, it cannot be said that the Constitutional reservation Under Art 309 for service matters, does not clothe the State with greater legislative powers in that regard It should be noticed that under Article 162 executive action is permitted in the legislative field but they will remain executive directions only. Under Article 309 proviso, however, formulation of 'rules' by the Governor shall be clear law making under the Constitution. 31. 2. (a) The second is the Habeas Corpus case AIR 1976, SC 1207 at 1378. Under Article 309 proviso, however, formulation of 'rules' by the Governor shall be clear law making under the Constitution. 31. 2. (a) The second is the Habeas Corpus case AIR 1976, SC 1207 at 1378. It was relied on, in the context of repugnancy to say that the many observations of the Supreme Court must be read after a proper correlation and not in any isolated way divorced from the context. 31. 2. (b) No dispute. One is glad to be able to say so at all in reference to this case, where the Supreme Court bad to consider about wartime legal measures even though the contrary was not at war. Appendix IV being the other cases relied upon by Mr. Siddhartha Sankar Roy. 32. (a) Mr. Ray also relied upon Royappa (see 6 above) to suggest that the twin test for testing the Constitutionality of an Act bas now given way' to a broader test of general reasonableness. 32. (b) I am unable. with respect, to agree. Reasonableness may govern all State action (see para 85 of Royappa) but that State action is not legislative activity of the primary order; no doubt Article 14 governs legislative activity too, but legislative unreasonableness must take the stark shape of failing in one of the twin tests; after all, Royoppa was a case challenging a mere posting in a newly created post-an Act of the Legislature cannot be tested similarly as an individual's posting order. I do not think that the cases of Maneka Gandhi ( AIR 1978 SC 597 ), International Airport Authority (AIR 1979 SC 16J8) and Ajay Hasia ( AIR 1981 SC 487 , esp. para 16 at 498) make any difference to what I have said; no doubt, as said in Ajay Hasia, the doctrine of classification is not the entirety of Article 14-tbat is true, but that does not mean that even in the field of testing the validity of primary legislation Article 14 will take some form other than that formed by the twin tests. We must remember that issuance of a passport, the giving of a hotel contract or the admission of a student are not in the same category of State function as the activity of primary legislation. 33. (a) Farooqui's case ( AIR 1972 SC 1738 ). We must remember that issuance of a passport, the giving of a hotel contract or the admission of a student are not in the same category of State function as the activity of primary legislation. 33. (a) Farooqui's case ( AIR 1972 SC 1738 ). was relied upon at paragraphs 18 and 19 of the report, and the passage from Tika Ramji ( AIR 1956 SC 676 ) quoted in para 18 was placed, for supporting the submission that the question, whether the Article 254 repugnancy will also operate when Parliament enacts upon list I or under the residuary Article 248, is still open. 33. (b) I have held in paras 146.1 and 146.2 that in view of other Supreme Court decisions, the question is not open for a division bench like ours. Also, here the central legislation is list III according to all, so that the issue does not really arise. 34 (a) The third proposition at the foot of the right column of page 902 was relied upon from Kurunanidhi's case ( AIR 1979 SC 898 ) and it was said that the proposition assumes a possible repugnancy situation as between a list II law and a list I law, and that the State law is saved because of the absence of any occupation at all by Parliament in the list I entry. 34. (b) I do not think that the third proposition is about repugnancy at all; it is about State competence, and the direct application of the pith and substance rule. For the indirect application of the pith and substance rule to save repugnancy, see para 14.12 above. 35.(a) 'In an attempt to show the inadequacy of the formulations in Deep Chand's case, (see para 14.4), the case of Ukha Kolhe was relied upon (All (1963 SC 1531) at paragraph 20 to say that Article 254 repugnancy might Dot result even in a case where obedience to the one law entails disobedience to the other. 35.(b) It should be seen that the Bombay Act in' question had received Presidential assent, so that the point was rather the extent to which the Code of Criminal Procedure would give way, than whether there existed a repugnancy situation at all. 35.(b) It should be seen that the Bombay Act in' question had received Presidential assent, so that the point was rather the extent to which the Code of Criminal Procedure would give way, than whether there existed a repugnancy situation at all. 35.(c) Indeed, in Tulloch's case ( AIR 1964 SC 1284 ) it has been said at paragraph 15 that repugnancy may result from the mere presence of conflicting legislation, and a comparison of the conflicting provisions even may not always be necessary. 36 (a) The Kannan Devan Hills case ( AIR 1972 SC 2301 ) was relied upon to make the point that, if a List II entry legislation cannot create a repugnancy -situation with a List I entry legislation, then why did their Lordships in this case examine the conflict sit nation at all at paragraphs 40, 45 and 47 with a view to saying that there is no real conflict, when their Lordships could simply have stated that the conflict, if any, need not be examined because it is a situation where 1/52 is pitted against II/18 and III/42, and thus it is not at all a repugnancy situation which must be III versus III? 36 (b) It is not open to assume that because the Court does not adopt a course, according to the opinion of the Court, that course could not have been legally adopted. Something more than a mere non-adoption is necessary to indicate the mind of the Court. There arc often alternative routes available to the same conclusion. 37. (a) As a further comment upon the Deepchand formulation (see paras 144 and 35 (a) above) the case of Delhi Municipality,. Shiv Shankar ( AIR 1971 SC 815 ) was relied upon. That was a case of legislation on two list III entries (see p. 821, para 9 of the report). It was said that consistent operation of the two Acts (Essential Commodities and Food Adulteration) was impossible, because prosecution under both, though saved by double jeopardy, were yet two different (repugnant) processes. Different prison sentences of 3 years and 7 years were mentioned. It was said that mere occupation of the same field is thus not a repugnancy criterion at all. 37. Different prison sentences of 3 years and 7 years were mentioned. It was said that mere occupation of the same field is thus not a repugnancy criterion at all. 37. (b) In my opinion the case is illustrative of the now formulated idea (see para 14.6.2 above) that for repugnancy to arise, the two conflicting legislations must not only be on list III, but also on the same entry in list III. See, for example, the last two sentences at paragraph 9 of the report at page 821. The case thus does not support the contention made as stated in the last sentence of para 37 (a) above. 38 (a) The Case of Bar Council U. P. ( AIR 1973 SC 231 ) was relied upon at para 15 (p. 238) for the notice taken there of Farooqui's case and the observation that Article 254 was applied though the Concurrent list legislations were not in issue. 38 (b) The same paragraph clarifies that generally no question of repugnancy under Article 254 can arise unless both legislations are upon the Concurrent list, and that in Farooqui, Article 254 as applicable to Jammu and Kashmir was considered, the language of which is different. Appendix V, being the cases relied upon by Mr. D. Ghosh and Mr. Somnath Chatterjee. 39. (a) The case of I. N. Saksena ( AIR 1976 SC 2250 ) was relied upon for showing the plenary powers of Legislation under or in respect of 11/41, which are larger than those under Art. 309. 39 (b) The case shows also that the State Legislature can pass a validating Act making legal retirement which had been held illegal by an earlier Supreme Court decision. It was held that the earlier Order of retirement, though held to be illegal bad not created 3n indefeasible right in favour of the employee, so that the enactments did not directly seek to overrule any decision of a Court of law. In our case also, the 1982 interim Order did not create any indefeasible right and the legislature did not touch the Order directly. See paras 69.20 and 22 of the report. 40(a) The case in AIR 1982 Allahabad 439 (Y.P. Singh v. State) was relied upon to show a learned third judge's opinion, that of Justice T.S. Misra, after a division bench decision, regarding the possible reasons for imposing 'non-practice' upon government doctors. 40. See paras 69.20 and 22 of the report. 40(a) The case in AIR 1982 Allahabad 439 (Y.P. Singh v. State) was relied upon to show a learned third judge's opinion, that of Justice T.S. Misra, after a division bench decision, regarding the possible reasons for imposing 'non-practice' upon government doctors. 40. (b) the only day when Mr. Ashoke Kumar Sen appeared this case was being cited; he said immediately after the citation that a special leave and a stay were granted in respect of the judgment and that thereafter the U. P. Government bad withdrawn the non-practising restriction, so that now, U. P., in that sense, is a 'free' state. To our query to Mr. Chatterjee whether the decision is thus today only an academic landmark, he replied that it is still a judicial reality. 41.(a) Mr. Chatterjee relied on the case of Jamuna Prasad, reported in AIR 1954 SC 686 as an illustration of a reasonable restriction on the freedom of speech in relation to election campaign speeches of prospective Parliamentarians. 41.(b) The case has no direct application to our case. 42.(a) Sakhawant Ali's case ( AIR 1955 SC 166 at 170, para 11) and the case of P. Balakotaiah ( AIR 1958 SC 232 , para 3. p. 237 and para 17. p. 238) were relied upon for the propositions that there is neither a fundamental right to be a government servant, nor a fundamental right to be continued in State employment. 42. (b) That is so, and that is why the view that Article 19 has not been broken in this case at all is fortified. For were it otherwise, the two fundamental rights to practise freely as a doctor and the fundamental right to be a government teacher doctor, in some suitable post, would have become mutually exclusive by reason of the impugned Act for several does ors like, say, Dr. Mukherjee. See also para 44. 43. (a) The division bench judgment of the M P. High Court in the Bank of India Case 1979(2) Service Law Reporter 326 was placed at pp. 344 and 345, para 21 to illustrate the reasonableness of restriction against the taking up of any other employment in the case of Bank officers. 43.(b) H is a parallel situation. no doubt, at least in some\respects. 44. 344 and 345, para 21 to illustrate the reasonableness of restriction against the taking up of any other employment in the case of Bank officers. 43.(b) H is a parallel situation. no doubt, at least in some\respects. 44. (a) 1(he case of Fertilizer Corporation, AIR 1981 SC 344 was placed at p. 347 para 12 arid it was said that the holding of a particular post is not a fundamental right. 44. (a) Same comment as in 42 (b). 45. (a) Col. A. S. Sangwan's case was placed ( AIR 1981 SC 1545 ) to say that a change of policy' by the government is always permissible if the change is fair. 45. (b) The case also states that when such policy change is made the impression should not be given that there is any ulterior criterion or arbitrariness. The dropping' of the 1965 relaxations does not appear to me to be either Constitutionally unfair, or guided by any ulterior criterion (of, say, entrenching unqualified teachers alleged to have been appointed) or made arbitrarily without material and reasonable basis. 46. (a) The Sanchaita case ( AIR 1982 SC 949 ), in which also Mr. Chatterjee argued, was relied upon to submit that in construing a statute the rules may be looked into. Para 78 at p 977 was placed. 46 (b) The notifications framed under the 90 Act in our case do indeed crystallize the Act if; to a working shape. 47. (a) The five judge decision in the case of T N. Khosa ( AIR 1974 SC 1 ) was relied upon and passages from page. 9 and paragraphs 34 to 38 were placed. It was shown that it had been laid down that in adjudging legislative validity Courts cannot evaluate rival theories and decide upon a preference. it would be impermissible for the Courts to substitute their own judgment for that of the legislature, a decision as to discrimination is not to be reached on any theoretical basis ('a priori', as opposed, in the context, I venture to suggest, to ex post facto) but on facts. Nor should nice mathematical evaluation take the place for the substantial consideration of constitutional validity. (see also 9 (a) and (b) above.) 47. (b) For our purposes, it is a helpful case. In para 19 2 11 for example I have Jet the legislature's preference prevail, as I must, in law. Nor should nice mathematical evaluation take the place for the substantial consideration of constitutional validity. (see also 9 (a) and (b) above.) 47. (b) For our purposes, it is a helpful case. In para 19 2 11 for example I have Jet the legislature's preference prevail, as I must, in law. I have commented upon the absence of factual foundations in say, paras 17 1.2 and 18.10 I have also had to deal with certain submissions regarding the possible grey areas of the Act (see paras under 16.3) which submissions, in their nicety, do indeed sometimes resemble some simple mathematical puzzles. 48. (a) Mr. Ghosh cited the case of United Public Workers v. Mitchell (a decision of the Supreme Court of the United States, reported in 91 Law Ed at p 754), were the constitutionality of the forbiddal contained in the ‘Hatch’ Act as to participation of federal employees in political campaigns was examined. By a majority, the provision was held to be valid. The Editorial annotation at p. 787 was also referred to. A comment was made that the need for such regulations is to be judged by other branches of the Government than the judiciary -- the judges shall only judge for constitutionality (the First Amendment is about free expression.) 48. (b) The case is impressive, in that three million officers and employees in the executive branch of the Federal Government were effected. But otherwise, the case, being in essence a recognition of the modern democratic need for a permanent apolitical civil service, does not much help on the facts So far as the principles are concerned, those are true enough hi India as well. 49.(a) The case of C.S.C. v. Letter Carriers (37 Law Ed 2d.796) was also cited, where the same restriction as in Mitchell's case was again passed for Constitutionality. 49.(b) The decision is of 1973 some twenty seven years after Mitchell, which was called to be of a difference vintage by three dissenting judges (p.8l7). The position remained however that the Civil Service was to be, dissociated from politics. 50.(a) The case of Broadrick v. Oklahoma (37 Law Ed. 2d 830) is of similar import in that it rules upon a similar ban in an 'Oktaboma Act as was contained in the Hatch Act (see 48. 49 above). 50.(b) The Case related to the State Civil servants as the Hatch Act to the Federal. 50.(a) The case of Broadrick v. Oklahoma (37 Law Ed. 2d 830) is of similar import in that it rules upon a similar ban in an 'Oktaboma Act as was contained in the Hatch Act (see 48. 49 above). 50.(b) The Case related to the State Civil servants as the Hatch Act to the Federal. One point about these last three cases is that they deal with the freedom of expression, which according to the systems of Jaw under review, every man alive has at all limes. However, the freedom to engage in any trade does not crystallize in all possible forms for all at the same time but that the practical freedom exercised by one individual is not in respect of more than one (or, at best a few) of the possible callings. Thus one is choosing all the time, by practical necessity. I have my doubts whether the Article 19 freedom for each calling embraces within its scope the feeedom for each combination of callings too. It may well be that the choice of the one reasonably excludes the other in many cases. The point does not however squarely arise in our case as there is no fundamental right to be a governmental servant (see 42(a) and (b) above), so that one of two callings in Issue is not an Article 19 free choice' at all. 51.(a) M/s. Mukherjee & Co's case (AIR 1964 Ca1165) was relied upon at headnote (e) to show that the question of Presidential assent (thus, of repugnancy) does not arise if the legislation is upon an entry neither contained in the Union list nor contained in the Concurrent list. 52. (a) The Hindustan Aluminium case ( AIR 1979 SC 1459 ) was relied upon at paras 40, 41, 66 and 68 for showing the wide acceptance of the scheme of delegated legislation, and as to in what manner those can at all be challenged. Towards, roughly the same purpose, M/s. Bobu Ram ( AIR 1979 SC 1475 ) was relied upon at paragraph 14. 53.(b) K. Kunjabmu's case ( AIR 1980 SC 350 ) was relied upon for the headnote and at paragraph 12 to show the leaning of a court in favour of a welfare legislation. Towards, roughly the same purpose, M/s. Bobu Ram ( AIR 1979 SC 1475 ) was relied upon at paragraph 14. 53.(b) K. Kunjabmu's case ( AIR 1980 SC 350 ) was relied upon for the headnote and at paragraph 12 to show the leaning of a court in favour of a welfare legislation. 54 (a) A decision of the Punjab and Haryana High Court Har Narain v. Ram Lal, 1980(3) SLR 23, was relied upon at para 17 to show that grant of options is a common feature in service law and no fundamental right is necessarily violated thereby, even if the optor is later estopped from retracting the option. 54 (b) The case shows, to an extent, that, by putting a choice before the present teachers, either to continue permanently as such on non-practising terms, or to give up permanently the teaching post for retaining the right to private practice, no unconstitutional inequality is perpetrated. 55. (a) the case of M/s. Rubber House v. M/s. E.N. Industries ( AIR 1989 SC 1160 ) was relied upon as one instance of the many cases where the word 'shall' (as occurring in the Haryana Rent Control Rules of 1976) has been Interpreted to mean 'may'. 55.(b) The citation relates s. 14(2A) of our Act, discussed above in paras 163.8.6 and 16387. 56 (a) Again with reference to s. 14(2A) the well known case of Tulsiram Patel reported in AIR 1985 SC 1416 was cited, to urge; that the constitutionality of a section should be saved, if it can be saved by a reasonable interpretation. An interpretation that makes nonsense of the section should accordingly, if it is at all possible to do so, be discarded in favour of an interpretation that makes for some sensible meaning. 56. (b) Headnote (F) may be referred to in this regard. 57.(a) The case of Virendra v, State of the Punjab (five Judges) reported in AIR 1957 SC 896 was relied upon at para 12 at p. 901 to submit that if a power by delegated authority is vested in the State's own executive itself, even, that in itself is some safeguard that the delegated authority will not be improperly utilized. 57.(a) The case of Virendra v, State of the Punjab (five Judges) reported in AIR 1957 SC 896 was relied upon at para 12 at p. 901 to submit that if a power by delegated authority is vested in the State's own executive itself, even, that in itself is some safeguard that the delegated authority will not be improperly utilized. It was also said that if in the delegation, the policy .fan be spelt out with reasonable certainty, then the delegation of the discretion to effectuate that policy by means of necessary action under the delegated authority, is not an instance of excessive delegation (Note slight contrast in 8 (a) above). 57.(b) I have been unable to hold that the question of excessive delegation really ever arose in this case, the State (acting under the Governor's band) having power already vested in it, regarding the matters that have been left for its decision under the Act. 58. (a) The case of Western UP. Electric Power reported In AIR 1970 SC 21 was relied on for headnote (B) and at para 7 (p. 24). It was said on this authority that those who are dissimilar. In circumstances can be subjected to reasonably dissimilar legal incidents. Thus, if teacher-doctors are dissimilar to non-teacher doctors, the imposition of non practice on the former alone will clear the first test of equality. 58 (b) I have discussed this in para 17 above in the main judgment, and paras 17.1.2. and 17.1.4. may be specifically referred to in this regard. Appeals dismissed. Cross objections allowed.