West Bengal Health Service Act, 1990 (West Bengal Act VII of 1990). The Statement of Objects and Reasons reads as follows:
The existing West Bengal Health Service consists of about 8,000 (eight thousand) Medical Officers. Because of its huge size, the efficiency of the sense 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 meaning of the Teaching posts, specially in the dearth disciplines, and also quality of of medical teaching and hospital care. Normally, Medical Officers do not like to join such posts from the unified Cadre of the West Bengal Health Service.
Therefore, it was proposed that the existing health service should be bifurcated. A separate service called West Bengal Education Service should be created for the medical teachers only. The said service shall comprise of 1400 teaching posts. The service is to be compulsorily non-practising with the expectation that the standard of medical teaching and care to the patients in our medical colleges and hospitals including other teaching hospitals will be improved. There will be no dearth of teaching in most of the disciplines within a near future.
A Public Health-cum-Administration Unit within the limits of West Bengal Health Service has been proposed. The administration unit will consist of about 500 Medical Officers who will be entirely in-charge of administration as AdministratOrs. It is envisaged that with a training and experience such group of Medical Officers would prove themselves as good administrators in the proposed unit which also will be entirely non-practising.
The said West Bengal Health Service cadre excepting the proposed Public health-cum-administration Unit will, as a result, consist of Medical Officers who will be involved in patients care only. It was in this background that the impugned Act came to be passed.
Section 2 is the definition Section.
Section 4 states that a person appointed to the West Bengal Medical Education Service shall not be transferred to West Bengal health service. Likewise, a person appointed to a post in the Health Service may be transferred to a post in Public Health-cum-Administration Unit as a operate unit. However, the State reserves the right to transfer any person from one post to another. Section 12 lays down the option to be exercised. In the unified service, if a person held a teaching post, he may exercise an option either for West Bengal Medical Education Service or West Bengal Health Service. Upon exercise of such option, he is deemed to be appointed to ‘he post to which he is deemed to have exercised his option.
u/s 6, the State Government is empowered to declare any under-graduate or post-graduate from medical college or other teaching institution together with the hospital (if attached) to be a non-practising institution. Upon such declaration, the right to indulge in private practice will cease.
This is subject to three Provisos:
(a) A person holding a non-teaching post may exercise an option for practice or non-practice. Such option is to be exercised:
(1a) By a person holding non-teaching post;
(1b) Such option could be exercised within a period of 90 days from the date of coming into force of this Act or within the extended period;
(ii) Where the person exercises an option for non-practice, he is allowed six months time to wind up his practice.
(iii) If the option is not so exercised, he can be transferred to any other hospital on such terms and conditions for practice.
Sections 7 and 8 talk of cadres in Education Service and Health Service respectively. The Health Service is to include a separate cadre for Public Health-cum-Administration Unit. The former consists of teaching posts while the latter consists of non-teaching posts.
Section 9 makes clear that the posts included in the cadre of West Bengal Education Service shall be non-practising. As a compensatory measure for deprivation of practice, a non-practising allowance is provided.
Section 10 applies the same formula of non-practice to Public Health-cum-Administration which, as stated above, is separate unit of Health Service. Here again, a non-practising allowance is provided.
Section 11 preserves the right of those appointed to a post in the cadre of West Bengal Health Service. In that, he will continue on such post as he occupied in the former West Bengal Health Service. This, of course, will not apply to a person posted in the Public Health-cum-Administration Unit.
Section 12 as has already been noted deals with the exercise of option. The said Section is subject to five provisos. They require to be carefully seen.
First proviso does not cause much difficulty. It says if a person appointed or deemed to have been appointed to a teaching post in the basic level in the Education Service if he is not selected for promotion or recruitment as a lecturer, he is liable to be transferred to a non-teaching post. The period within which he has to qualify for promotion or such recruitment is five years from the date of appointment to the teaching post.
The second Proviso lays down where a person opts for West Bengal Medical Education on such appointment to the teaching post, he has to perform his duties in hospital in addition to his duties as teacher of the discipline.
The third Proviso deals with a person holding a post connected with Public Health or Administration in the former West Bengal Health Service. He may exercise an option either to the West Bengal Health Service or the the Public Health-cum-Administration. This is qualified by the fourth proviso which states that the persons holding posts connected with Public Health or Administration in the former West Bengal Health Service who did not exercise any option shall be deemed to have exercised option for West Bengal Health Service where practice is permissibly.
The last of the provisos states that if the persons holding administrative post in the former West Bengal Health Service who did not exercise any option shall be deemed to have exercised the option either for West Bengal Health Service or for Public Health-cum-Administration respectively.
Section 13 fills up the newly created West Bengal Health Service in phases by transfer of such of those persons holding the teaching posts but who had not opted for Education Service.
Section 14 talks of recruitment to all teaching posts through Service Commission. The Proviso deals with fixation of quota. Sub-section (2A) of this Section which came to be introduced (by amending Section West Bengal Act XIII of 1990) states that a person who is not required to exercise option shall be appointed to a teaching post in the basic level or to a post of lecturer or to any other teaching post in the Education Service. Section 16 fixes the age of retirement of those in the Education Service at 60 years with a possibility of re-employment until the age of 65 years. The only other Section which remains to be seen is Section 20 which says that the Act shall have overriding effects.
By a Notification dated 25.5.1990, West Bengal Medical Education Service Cadre and Age of Retirement Rules 1990 were framed.
On 13.5.1990, the West Bengal Medical Education Service Pay and Allowance Rules 1990 came to be framed.
On 3.3.1993, the West Bengal Health Service Rules were framed, on which date the Rules came into force. Rule 3 emphasises that the Health Service shall consist of a separate unit known as Public Health-cum-Ad-ministration Unit. This is in accordance with Section 10. Rule 5 in cataloguing as to the members of the West Bengal Health Service specifies the following five categories of persons:
(i) All members of the former West Bengal Health Service who have not joined the West Bengal Medical Education Service:
(ii) Persons who hold teaching posts in the former West Bengal Health Service who have not joined Medical Education Service but who have opted to join Health Service (this option is to be exercised within 30 days from 3.3.1993);
(iii) Persons who hold posts connected with different health or Administration in the former West Bengal Health Service and who have opted for Health Service or the cadre of Public Health-cum-Administration (here again the option is to be exercised within 30 days from 3.3.1993);
(iv) Those falling under Clauses (ii) and (iii) who had not exercised the option for the West Bengal health Service and who are deemed to have exercised as option for the West Bengal Health Service or for the cadre for Public Health-cum-Administration by a deeming clause.
(v) All persons newly recruited through Service Commission.
Rule 6 talks of eligibility of a person to be appointed to a post in public Health-cum-Administration Unit provided the option is exercised as stated above. Here again, the emphasis that all posts in Public Health-cum-Administration are to be non-practising. This again is not in accordance with Section 10.
Rule 7 talks of the grades in West Bengal Health Service:
(i) Medical Officers;
The qualifications for declaration as a Specialist are:
(a) a post-graduate degree, and
(b) at least 5 years as Medical Officer
(a) a diploma and
(b) at least 8 years experience as Medical Officer.
54. In the latter case, declaration as a Specialist will be only in dearth discipline as mentioned in the said Rule.
A Specialist cannot be posted in any of the Health centers, Rural Hospital or Teaching hospital as mentioned in items (a), (b) of (f) Schedule II.
Rule 8 is positive in its terms. It states that persons posted in rural health centers, rural hospitals and teaching hospitals shall be engage in private practice. In contradistinction, Rule 9 says that such of those belonging to West Bengal Health Service and who hold posts in (i) all specialised hospital for treatment of T.B., Leprosy and Mental and infectious diseases; (2) all State General Hospitals and State Hospitals situated in the District of Bengal; and (3) all State General Hospitals and State Hospitals in the Districts and City of Calcutta, would be entitled to practice provided the option is exercised in this regard. Here again, the qualification of private practice is not conferred as of right but only a privilege since notwithstanding the option the doctor may be transferred to a post where private practice is not permitted. However, the privilege of private practice could be withdrawn by the Government if it is desirable in public interest. This is confirmed in Rule 10.
Rule 11 states the consequences should a doctor opt for private practice like a deduction of 50 per cent of salary, denial of house rent allowance etc.