POSTGRADUATE TRAINING PROGRAMME FOR MD IN PSYCHIATRY: MCI GUIDELINES

Medical Council of India

MCI GUIDELINES FOR COMPETENCY-BASED POSTGRADUATE TRAINING PROGRAMME FOR MD IN PSYCHIATRY

Preamble

The purpose of PG education is to create specialists who would provide high-quality health care and advance the cause of science through research & training.

A postgraduate specialist having undergone the required training should be able to recognize the health needs of the communit, should be competent to handle medical problems effectively and should be aware of the recent advances pertaining to his specialty. The post graduate student should acquire the basic skills in teaching of medical/para-medical students. She/he is also expected to know the principles of research methodology and modes of consulting library.

The purpose of this document is to provide teachers and learners illustrative guidelines to achieve defined outcomes through learning and assessment. This document was prepared by various subject-content specialists. The Reconciliation Board of the Academic Committee has attempted to render uniformity without compromise to purpose and content of the document. Compromise in purity of syntax has been made in order to preserve the purpose and content. This has necessitated retention of “domains of learning” under the heading “competencies”.

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Background of the Legal Profession in India

Lawyers have been in the vanguard of a country’s progress and have always zealously guarded human liberties and the rule of law.

The dawn of Legal Profession in India could be seen in the Indian High Courts Act, 1861 (commonly known as the Charter Act) which authorised establishment of the High Courts under the Letters Patent and those Letters Patent empowered the High Courts to make rules for enrolment of Advocates and attorneys who were also known as solicitors. In the early days three Acts, namely, the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926) relating to legal Practitioners were enacted. The importance of legal profession in the Judicial Administration while dispensing justice with the aid of those who could effectively present the case of a litigant, was designed to usher in bringing the rule of law. The legal profession was acknowledged as the noble profession as it catered to, and contributed to lay the firm foundations of a system that dispenses fair and impartial justice. The desire of common man to receive justice was taken care of by making provisions for the presentation of a case and its redressal through persons in whom trust was reposed.

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Directive of the European Parliament and of the Council on recognition of professional Qualifications

DIRECTIVE 2005/36/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 7 September 2005

on the recognition of professional qualifications

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 40, Article 47(1), the first and third sentences of Article 47(2), and Article 55 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)

Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member States, of obstacles to the free movement of persons and services is one of the objectives of the Community. For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications. In addition, Article 47(1) of the Treaty lays down that directives shall be issued for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.

(2)

Following the European Council of Lisbon on 23 and 24 March 2000, the Commission adopted a Communication on ‘An Internal Market Strategy for Services’, aimed in particular at making the free provision of services within the Community as simple as within an individual Member State. Further to the Communication from the Commission entitled ‘New European Labour Markets, Open to All, with Access to All’, the European Council of Stockholm on 23 and 24 March 2001 entrusted the Commission with presenting for the 2002 Spring European Council specific proposals for a more uniform, transparent and flexible regime of recognition of qualifications.

(3)

The guarantee conferred by this Directive on persons having acquired their professional qualifications in a Member State to have access to the same profession and pursue it in another Member State with the same rights as nationals is without prejudice to compliance by the migrant professional with any non-discriminatory conditions of pursuit which might be laid down by the latter Member State, provided that these are objectively justified and proportionate.

(4)

In order to facilitate the free provision of services, there should be specific rules aimed at extending the possibility of pursuing professional activities under the original professional title. In the case of information society services provided at a distance, the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (4), should also apply.

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PROFESSIONAL MISCONDUCT BY MEMBERS OF THE ACTUARY INSTITUTE OF INDIA

Misconduct by a Professional Person

(See section 31)

PART I

PROFESSIONAL MISCONDUCT IN RELATION TO MEMBERS OF THE INSTITUTE IN PRACTICE

An Actuary in practice shall be deemed to be guilty of professional misconduct, if he-

(1) allows any person to practice in his name as an actuary unless such person is also an actuary in practice and is in partnership with or employed by himself; or
(2) pays by way of remuneration to an employee, pays or allows or agrees to pay or allow, directly or indirectly, any share, commission or brokerage in the fees or profits of his professional business, to any person other than a member of the Institute or a partner or a retired partner or the legal representative of a deceased partner; or
(3) enters into partnership with any person other than an Actuary in practice or a person resident outside India who but for his residence abroad would be entitled to be admitted as a member under clause (c) of sub-section (1) of section 6 or whose qualifications are recognised by the Central Government or the Council for the purpose of permitting such partnership, provided the Actuary shares in the fees or profits of the business of the partnership both within and outside of India; or
(4) secures either through the services of a person who is not an employee of such Actuary or who is not qualified to be his partner or by means which are not open to an Actuary, any professional business; or
(5) accepts an assignment as Actuary previously held by another Actuary without first communicating with him in writing; or
(6) charges or offers to charge, accepts or offers to accept in respect of any professional employment fees which are based on a percentage of profit or which are contingent upon the findings or results of such employment, except as permitted under any regulation made under this Act; or
(7) engages in any business or occupation other than the profession of Actuaries unless permitted by the Council so to engage: Provided that nothing contained herein shall disentitle an Actuary from being a director of a company; or
(8) accepts a position as an actuary previously held by some other Actuary in practice in such conditions as to constitute undercutting; or
(9) allows a person not being a member of the Institute in practice, or a member not being his partner to sign on his behalf or on behalf of his firm, any valuation report or financial statement; or
(10) discloses information acquired in the course of his professional engagement to any person other than his client so engaging him, without the consent of such client, or otherwise than as required by any law for the time being in force; or
(11) certifies or submits in his name, or in the name of his firm, a valuation report or a financial statement unless the examination of such statement and the related records has been made by him or by a partner or an employee in his firm or by another Actuary in practice; or
(12) expresses his opinion or valuation reports or financial statements of any business or any enterprise in which he, his firm, or a partner in his firm has a substantial interest, unless he has disclosed the interest also in his report; or
(13) fails to disclose a material fact known to him in a valuation report or a financial statement, but disclosures of which is necessary to make the valuation report or the financial statement not misleading where he is concerned with such valuation report or the financial statement in a professional capacity; or
(14) fails to report a material misstatement known to him to appear in a valuation report or financial statement with which he is concerned in a professional capacity; or
(15) is grossly negligent in the conduct of his professional duties; or
(16) fails to obtain sufficient information to warrant the formation of an opinion in regard to any matter contained in any valuation report or financial statement prepared by him or on his behalf; or
(17) fails to invite attention to any material departure from the generally accepted procedure or professional work applicable to the circumstances, in any valuation report or financial statement prepared by him or on his behalf.

PART II

PROFESSIONAL MISCONDUCT IN RELATION TO THE MEMBERS OF THE INSTITUTE IN SERVICE

A member of the Institute (other than a member in practice) shall be deemed to be guilty of professional misconduct, if he being an employee of any company, firm or person,-

(1) pays or allows or agrees to pay directly or indirectly to any person any share in the emoluments of the employment undertaken by him; or
(2) accepts or agrees to accept any part of fees, profits or gains by way of commission or gratification; or
(3) discloses confidential information acquired in the course of his employment except as and when required by law or except as permitted by his employer.

PART III

PROFESSIONAL MISCONDUCT IN RELATION TO MEMBERS OF THE INSTITUTE GENERALLY

A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he-

(1) includes in any statement, return or form to be submitted to the Council any particulars knowing them to be false; or
(2) not being a fellow member of the Institute acts himself as a fellow member of the Institute; or
(3) does not supply the information called for or does not comply with the requirements asked for by the Council or any of its Committees; or
(4) contravenes any of the provisions of this Act or the regulations made thereunder or any guidelines issued by the Council under clause (i) of sub-section (2) of section 19; or
(5) is guilty of such other act or omission as may be specified by the Council.

PART IV

OTHER MISCONDUCT IN RELATION TO MEMBER OF THE INSTITUTE GENERALLY

A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if-

(A) (1) he is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term not exceeding six months;
(2) in the opinion of the Council, he brings disrepute to the profession or the Institute as result of his action whether or not related to his professional work;
(B) he is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term exceeding six months.
This clause to the Act seeks to define professional misconduct and categorises the misconduct into three parts such as professional misconduct in relation to (1) Members of the Institute in practice, (2) Members of the Institute in service and (3) Members of the Institute generally. (Notes on Clauses).


Actuaries Act, 2006

Role of lawyers in the administration of justice

A successful lawyer has always been held in high esteem not because he has succeeded in accumulating unlimited earnings but because of his knowledge wisdom and Court craft. His keen mind, brilliant intellect, indomitable labour and prophetic vision aid him to acquire a personality which inspires the new entrant and fosters respect amongst colleagues.

But those who go astray indulge in indiscipline and profess to preach vices to enhance their own breed. They do not rely on genuine talent, rather find it convenient to have the short cut through the ladder of a risky adventurer or tread the lawless path. This breed adopts the method of shouts and threats bereft of wisdom to extract submission from the sobre. They create an atmosphere of helplessness and browbeat the logical and the reasonable. They call it agitation and glorify it in the name of revolution. Their motto is to get at something, by disrespect and creating chaos. Many young lawyers today are wandering without rule or guidance in a wilderness as vast and intricate as the untamed forest. The training of a newcomer to the profession is too casual and too scanty.

Regulatory Measure 

An Advocate, who is an Officer of the Court, is bound to respect the Court and maintain its dignity, decorum and majesty is the thumb rule.

235. Control over subordinate courts

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

 This Article shows that the High Court has to exercise its administrative, judicial and disciplinary control over the members of the Judicial Service of the State. The word “control”, referred to in this Article, is used in a comprehensive sense to include general superintendence of the working of the sub-ordinate courts, disciplinary control over the Presiding Officers of the sub-ordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. “Control” would also include suspension of a manner of the Judicial Service for purposes of holding a disciplinary enquiry, transfer, confirmation and promotion.

The Art of advocacy

A lawyer is given the privilege of audience by the Court and as such he is an officer of the Court. We often speak of the rule of law as the most significant and distinguishing feature of a democratic State. The majesty of law depends not only on the efficiency, integrity, impartiality and independence of the judiciary; it also needs the assistance of a strong, competent, fearless and incorruptible Bar. it is the privilege of the Bar and indeed their duty to press their clients’ cases strenuously and to the best of their ability. A lawyer must, no doubt, give his very best to every cause that he pleads in Court. But in the discharge of his duties he is always expected to exercise his discretion in the selection of his points. The art of advocacy consists in making a proper selection of points to be pressed before the Court and in making such selection the lawyer is at full liberty to exercise his own discretion in the matter.

This aspect of the duties of the profession of advocacy postulates that however keenly a lawyer may fight his client’s cause, he cannot and should not identify himself too much with his client. Detachment and objectivity are indeed the basis of the strength of the Bar, and when a lawyer agrees to share in the profits of litigation, he can never retain due detachment and objectivity while advocating the cause. An agreement which makes the payment of lawyer’s fees conditional upon the success of the suit and which gives the lawyer an interest in the subject-matter of the suit itself would necessarily tend to undermine the status of the lawyer as a lawyer.

The art of sophisticated advocacy will not only sooth an adverse Judge but will also heavily aid the lawyer in proceeding with the case to the best advantage of the litigant whose interest is supreme. This supremacy of the object should however not overcome the mental faculties of a lawyer so as to malign the free-flow of justice. It also does not enhance the limits of the licence given to a lawyer so as to destroy his own privileges which he enjoys by virtue of being an officer of the Court. It is only when a lawyer transgresses such limits that the Court on such rare occasions has to rise to preserve the faith and confidence of the public at large while ensuring the rule of law and dispensation of justice. Public interest or litigants interest cannot be served by resorting to whole scale violence of public faith reposed in the judiciary. Lawyers do not enter into contracts with clients to give guaranteed results. They are only obliged to defend a cause which they think to be right in the eyes of law. But that should not in over zeal prompt one to wilfully misrepresent oneself more so where the cause is to secure justice.

They are the instruments who are supposed to assist the Court in finding out the truth. They are engines of interpretive ideas to infuse life into the dead letter of laws. They enliven hope of justice like an oasis in the desert. The Courts through their devoted labour deliver justice. Judges who have taken oath discharge their onerous duties through these ministers of justice.

 A lawyer’s pursuit should be what was professed by the great 19th Century American Statesman, William Lloyd Garrison, who while launching his new number “The Liberator” said, “I will be as harsh as truth and as uncompromising as Justice. I am in earnest–I will not equivocate–I will not excuse–I will not retreat a single inch–and I will be heard.”

The wisdom of the Courts are both sharpened and chiselled by the forensic arguments, representing deeper thoughts well dressed with logic, advanced by the lawyers. For students it is said that if they do not study well, they will miss school instead of vacations. If lawyers do not receive proper training, they will miss cases and clients. Improper behaviour and absence of courtesy might end up in what Lawyers detest most – loss of a Judge. A lawyer should be adept at expedients for avoiding any unpleasant predicament. He has to by dint of his profession, maintain dignified and respectable bearing in the Court. A lawyers conduct should reflect respectful obedience. Courtesy, consideration towards others and unselfishness are the sources of true politeness from which etiquette springs.

A person who chooses this vocation is not one who has been tossed into this world to be a sport of fortune ; one is supposed to train oneself, as the profession obliges service to the institution and service to the litigant whose interest is supreme to receive justice through the rule of law. The attire in roles of a lawyer is a respectable disguise. To hold on to such a respect would also require a disciplined character. The moment such a character is shed or given up, not only the attire but the person donning it loses respect. A lawyer should put all his genius into being heard by the Court, not for inviting hatred and contempt. The eloquence and speech of a lawyer should be direct and brilliant, but eminently self controlled and circumscribed by law. The logic and language should not be allowed to go tangent and should be rarely at fault, if not perfect. Speaking in a tongue which one does not altogether understand, should be avoided. It is not necessary to stoop to verbal vulgarity to receive attention. A corrupt reasoning of the mind becomes an instrument of dispute.

Fees always not matters 

In 1874 Couch C. J. and Jackson J. of the Calcutta High Court condemned an advocate for having entered into a contract which was contrary to public policy. By the contract in question the advocate had agreed to receive as his professional fees a certain share in the subject-matter of the suit.–‘In the matter of Moung Htoon Oung 21 WB 297 (Cal) (C).

The same view was expressed by a Full Bench of the Calcutta High Court in 1900 in — ‘In the matter of an Advocate 4 Cal LJ 259 (D). Chief Justice Maclean, who delivered the principal judgment of the Full Bench observed that it is professional misconduct for an advocate to agree with his client to accept as his fee a share of the property, fund or other matter in litigation for his services as advocate in such litigation upon the successful issue thereof.

In — ‘R, An Advocate, In re AIR 1939 Mad 772 (E) a Full Bench of the Madras High Court has held that for an advocate to enter into an agreement by which he was to accept for his fees a certain proportion of the subject-matter of the suit amounted to professional misconduct of which the Court would take serious notice. In this case there were two agreements which the advocate had made with his client. By the first agreement the advocate had undertaken the liability to maintain the client and carry on the litigation. But by the second he had merely agreed to receive for his fees a certain share in the proceeds of the litigation. His conduct was condemned not only in respect of the first agreement, but also in respect of the second. The Punjab High Court have expressed the same view in — ‘In the matter of a Pleader of the Chief Court of the Punjab 69 Pun Re 1904 (F) and — ‘Ganga Ram v. Devi Das 61 Pun Re 1907 (G).

The Standard

Declining standards in the art of advocacy causes serious concern to all the stake holders involved in the mechanism of dispensation of justice, including the lawyers and the litigants. If this adverse and agonising trend is not reversed, with a sense of urgency, it would lead to disastrous consequences. The members of the Bar should not forget to remember that they are officers of the Court and that they have a legal obligation to aid the courts of law in performing their functions, in a smooth and efficient manner. Further, it is the primary duty of the Bar to keep a constant vigil in upholding the dignity and the decorum of the judiciary by cherishing, nurturing, preserving and practising the age old traditions of this great institution, which are worthy of emulation.

A concerted effort has to be made to arrest the contagious illness before it becomes cancerous and attains dangerous and unmanageable proportions, like a bubonic plague. There should, probably, be an open public debate, involving all the stake holders, who may have a say in the system of dispensation of justice. Unless we set our house in order, we may fail to keep the promises we had made when we gave to ourselves the sacred document called the Constitution of India, containing more than a million dreams.

 In O.P. Sharma and Others Vs. High Court of Punjab and Haryana, the Supreme Court had reiterated the role of lawyers in the administration of justice. It had been held that a lawyer cannot be a mere mouthpiece of his client. He is under an obligation to uphold the rule of law and to ensure that the judicial system functions to its full potential. A lawyer should be dignified in his dealings with the Court, his fellow lawyers and the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. He should faithfully abide by the standards of professional conduct and etiquette, prescribed by the Bar Council of India. He has an important social duty to perform, as an officer of the Court.

In a recent decision, a Division Bench of this Court, in S. Padma and Another Vs. The Chief Justice, High Court of Madras, Chennai 600104, had held that an Advocate, who is an officer of the Court, is bound to respect the Court and to maintain its dignity, decorum and majesty.

In his book titled ‘Dynamic Lawyering’, Justice V.R. Krishna Iyer has stated that lawyers are social engineers and are hallowed partners in securing a world order, a cosmos without chaos and an international order where jurisprudence never dwindles into the vanishing point. The Bar should be at war with injustice, as an equal partner in the judicial process.

Unless the long-cherished traditions and conventions of this Court are jealously guarded, respected and followed to their last details, the process of dispensation of justice may be pushed to the brink of disaster. Courts are not expected to tolerate uncouth and unacceptable behaviour from the members of the Bar. This Court may be failing in its duty if it does not express a word of caution in such matters. Further, it may be mistaken to be a tacit sanction or a weakness shown in the performance of its primary duty of rendering justice, without fear or favour, ill-will or affection.

 Muted murmurs are heard from some segments of the society, reflecting their concern regarding the falling standards and the lack of professionalism amongst the members of the Bar, in general. Therefore, at this juncture, there is an emergent need for intense introspection before rigorous remedial measures are initiated to curb and to contain the malaise. Let the house be set in order before it becomes a loud chorus, and before it is too late to redeem the lost prestige of the noble profession. It is said that the Courts of law are the last resort of a common man on the streets. Let there be nothing done, by deeds or by words, to belie the high hopes the people of this nation have on this ‘last bastion’ of hope – the judiciary. Let there be a clear and definite resolve to revive and to restore the legal system to its old glory and to make it march forward in its quest for justice.

Scandalising the Court and the hostile criticism of Judges

The Hon’ble Apex Court in M.Y. Shareef and Another Vs. The Hon’ble Judges of The High Court of Nagpur and Others, as hereunder:

It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and that it is no duty of a counsel to his client to take any interest-in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.

(Emphasis supplied by us)

The Hon’ble Apex Court in the same decision also observed as hereunder:

We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients.

It is also relevant to refer the decision of the Hon’ble Supreme Court in S.K. Sundaram In Re. reported in 2001 (2) SCC 171 2000 (1) L.W. 26. In the said decision earlier decision of the Hon’ble Supreme Court in Dr. Dt C. Saxena V. Hon’ble the Chief Justice of India reported in 1966 Crl.L.J. 3274 was referred to, wherein, after holding the contemnor as guilty of criminal contempt, the Hon’ble Apex Court observed as hereunder :

Scandalizing the court, therefore, would mean hostile criticism of Judges as Judges or judiciary. Any personal attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a Judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice.

In the same decision, the Hon’ble Apex Court further observed as follows :

Dealing with the imputation that the then Chief Justice of India deliberately and willfully failed to perform his duties the three Bench Judge Bench further observed thus :

It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar propensity to undermine the authority of the Court or the judiciary as a whole; he crossed all boundaries of recklessness and indulged in wild accusations.

In yet another decision in Vishram Singh Raghubanshi Vs. State of U.P., , the Hon’ble Apex Court in paragraph 16 held as follows:

 The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. “Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the Judiciary”. A Lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the institution of judiciary. An advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable.

(Emphasis supplied by us)

In yet another decision O.P. Sharma and Others Vs. High Court of Punjab and Haryana, , the Hon’ble Apex Court held as follows :

The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation’s administration was to be governed by the rule of law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the court in the administration of justice. The Bench as well as the bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in no one’s interest. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of a judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary.

In the same decision, the Hon’ble Apex Court referred to an earlier decision in M/s. Chetak Construction Ltd. Vs. Om Prakash and Others, wherein it was held as hereunder :

Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to ‘terrorize’ or ‘intimidate’ Judges with a view to ‘secure’ orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.

The fine art of advocacy suffers mayhem when irreverent men indelicately brush with it.

In Jaswant Singh Vs. Virender Singh and others, AIR 1995 SC 520 observed:

“It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because a lawyer appears as a party in person he does not get a licence thereby to commit contempt of the court by intimidating the Judge or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of court by the use of objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.”

Once a lawyer always a lawyer

In Seldom v. Croom-Johnson [1932] 1 KB 759; 16 TC 740, a question arose on a barrister’s Income Tax assessment whether his becoming a King’s counsel from his being a junior barrister would amount to setting up a new possession, Rowlett J. referred to the distinction between the setting up of a new profession and setting up of a new business. He observed that both the junior barrister and the king’s counsel carry on the same profession and the assessee was still acting in the same way as before, practising the art of advocacy, even before he became the King’s counsel. This decision is an illustration of the nature of the legal profession. Come what may, the legal profession remains the same. Once a lawyer always a lawyer. With the assessee’s expulsion from the law firm one chapter in his career was closed. But then it was the beginning of the next one. Legal profession at all times has been considered to be a profession and it is not like a trade or a business. The expression “commercial” primarily deals with the trade and business whereas the art of advocacy is skilled art and one has to acquire it by dint of his skill and legal study.

legal profession does not fall in the category of a trade or business; it is a profession which can only be practised by those who possess necessary and requisite skill in the subject which distinguishes it from any trading or business activity. Lawyers are the clan on priests of the temple of justice enjoined with the duty of constantly guarding the ivory gates of truth and wisdom. They possess the key to the gates of this institution and show the way to the portals of this temple where the common man seeks justice. Lawyers chivalrous devotion to a cause–binds him indissolubly to the cause of truth–One has to rise above attachment and repulsion to be free from passion in thought, word and deed away from fear and vanity.

Chartered Accountant

The word “Chartered Accountant” has got it own significance and the discussion that was made at the time of adoption of the nomenclature by the Joint Committee, supports the case of the 1st respondent-Institute the value and the significance that is being attached to the designation “Chartered Accountant” for the members of the Institute for use of the letters ‘C.A.’ and ‘F.C.A.’ after their names. When such is the position, with such a history and background for the adoption of the designation “Chartered Accountant” can we say that the 1st petitioner-Institute is entitled to confer certificates on its members so as to enable them to use the designation. ‘C.F.A.’. There is jugglery of the letters. ‘F.C.A.’ means a Fellow of the Institute of Chartered Accountants’ and it has got a universal recognition.

Whereas, ‘C.F.A.’ means ‘Chartered Financial Analyst’ and it shows that by using the abbreviated letters ‘C.F.A.’ the members of the 1st petitioner-Institute want it to be believed really that they have something to do with the chartered accountancy. The attempt made by them appears to my mind, to be a surreptitious attempt to trench upon the position of the members of the 1st respondent-Institute, who by reason of their association with the Institute of Chartered Accountants are entitled to calf themselves as “Chartered Accountants” and Fellow of Institute of Chartered Accountants. There is every possibility of the persons dealing in the Accountancy profession to be misled by the designation ‘C.F.A.’ leave alone common people, since the persons trained by the 1st petitioner-Institute have to work in. some field or the other connected with the accounts and auditing or with the financial institutions.

The designation “Chartered Accountant” has won world-wide acclaim as the hall-mark of professional excellence and by long course of time the members of the 1st respondent-Institute acquired aright to use the designation ‘C.A.’ and ‘F.C.A.’ particularly in the background and history for the adoption of the said designation. The letters ‘C.F.A.’ are akin to the letters ‘C.A.’ and ‘F.C.A.’ and they will naturally cause confusion in the minds of the persons that are connected with the 1st respondent-Institute and the accountancy profession. Moreover, the petitioners in their affidavit state that ‘CFA’ is not the designation conferred by the 1st petitioner-Institute. The 1st petitioner-Institute is only a Society registered under the A.P. (Telangana Area) Public Societies Act, 1350 Fasli. It has neither recognised by the Government of India nor established under any Statute unlike the 1st respondent-Institute. The 1st petitioner-Institute never sought for the recognition of the Central Government. No authorised Institute or University would desire its own degrees and qualifications to be by-passed by qualifications or degrees granted by unauthorised or unrecognised bodies or institutions privately constituted. The contention of the petitioners that other Indian Universities are conferring Degrees MCA and DCA which stand for Master of Computer Applications and Diploma in Computer Applications has no relevance and the other contention that unless the letters ‘C and ‘A’ are in juxtaposition, they cannot stand for Chartered Accountant and once they are separated and some other letter is interposed as in the case of ‘C.F.A.’ there can never be any association with the profession of CAs is not tenable. When the 1st petitioner-Institute is not a recognised one, it cannot confer any degree or certificate under the style “Chartered Financial Analysts” and the recipients also cannot use the designation ‘C.F.A.’ at the end of their names.

 The mere fact that the Institute of Chartered Financial Analysts is a global institute and it has been adopted in some other countries does not mean that they can use the designation. The petitioners have not produced any document to show that the Institute of Chartered Financial Analysts of U.S.A. has been recognised by the Government of India or the 1st respondent-Institute. The idea in forming an Institute may be a good idea but as Plato said, all good ideas become good not because of their inherent worth but rather because of who takes them up. Assuming for a moment that the Financial Analysts could be made to see that certification by the 1st petitioner-Institute was not for personal aggrandisement but rather to give their work the mental discipline which requires to achieve professionalism, they need not have the suffix ‘C.F.A’ at the end of their names. Besides, there was no universal acceptance for the Certificate issued by the 1st petitioner-Institute unlike the 1st respondent-Institute. According to the petitioners, the Institute has made enormous strides over the several years of its existence in the field of financial analysis and there is absolutely no doubt that further considerable progress can and will be achieved. However, this Court is not called upon to use any map or compass to assess the achievement of that progress. It is significant to note that the 1st petitioner-Institute was registered in 1984 under the name of ‘Institute of Certified Financial Analysts’ and gradually it was changed by addition of the words “of India”. Subsequently, the word ‘certified’ was substituted by the word ‘Chartered’. Perhaps the petitioner-Institute wanted to bring its name close to the name of the 1st respondent-Institute. It may also be a reason for changing the name because the Joint Committee exhibited the use of ‘Certified Accountant’ and ‘Certified Auditor’ and this must have made the organisers of the 1st petitioner-Institute to change the same into ‘Chartered Institute’.


SOURCE : (1991) 1 ALT 87- ANDHRA PRADESH HIGH COURT-THE INSTITUTE OF CHARTERED FINANCIAL ANALYSTS OF INDIA AND OTHERS  Vs. THE COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA AND OTHERS -Decided on : 21-11-1990

No Government doctor can claim the right to private practice.

SUPREME COURT OF INDIA JUDGMENTS

SUKUMAR MUKHERJEE ORS.Vs. STATE OF WEST BENGAL AND ANOTHER – 27/07/1993

It was submitted on behalf of the petitioners that the field of public health is being served by these petitioners and if they are restrained from doing so, public will be deprived of their services which would not therefore, be in public interest. I do not find any merits in this contention. The petitioners do not give (service) after office hours without charging fees. Their fees cannot be paid by hungry, indigent persons. They are approached by those who can afford to pay them. So, the majority of these deprived persons are not going to get any benefit from them. They have to depend on the hospital and dispensaries set up by the Government for public benefit. The right of the petitioners to practise the profession of medicine cannot be said to have been violated by the impugned rules.

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : S. Mohan, J; P. B. Sawant, J )

SUKUMAR MUKHERJEE ORS. — Appellant

Vs.

STATE OF WEST BENGAL AND ANOTHER — Respondent

Civil Appeal No. 3394 of 1993

Decided on : 27-07-1993

Advocates Act, 1961 – Section 30
Constitution of India, 1950 – Article 14, Article 16, Article 19(1), Article 252, Article 254, Article 309
Indian Medical Council Act, 1956 – Section 18, Section 27
Karnataka Land Reforms Act, 1961 – Section 11, Section 48(8)
West Bengal Health Service Rules, 1993 – Rule 10, Rule 5, Rule 7, Rule 8
West Bengal State Health Service Act, 1990 – Section 10, Section 12, Section 13, Section 14(2A), Section 16, Section 2, Section 20, Section 3, Section 4(3), Section 5, Section 6, Section 7, Section 8, Section 9
Constitution of India, 1950 – Articles 14, 226 – West Bengal Health Services Rules, 1993, Rule, 5(1) and 5 (II)

Cases Referred

Dr. Y.P. Singh and Others, etc. Vs. State of U.P. and Others, AIR 1982 All 439
H.S. Srinivasa Raghavachar Vs. State of Karnataka and Others, AIR 1987 SC 1518 : (1987) 3 JT 26 : (1987) 1 SCALE 885 : (1987) 2 SCC 692 : (1987) 2 SCR 1189
Reserve Bank of India Vs. N.C. Paliwal and Others, AIR 1976 SC 2345 : (1976) 4 SCC 838 : (1977) 1 SCR 377 : (1976) 1 SLJ 569

ORDER

P.B. Sawant, J.

Leave granted in all the Special Leave Petitions.

1. This group of appeals is directed against the decision of the High Court dated 31st January, 1992 dismissing the appellants’ appeals against the verdict of the learned Single Judge in a group of writ petitions. Both the learned Single Judge and the Division Bench in appeal, by their decisions in question have upheld the validity of the West Bengal State Health Service Act, 1990 (the ‘Act’) which was challenged mainly on three grounds, viz.,

(a) that the State legislature did not have the competence to pass the Act and hence the Act was passed in violation of Article 252 of the Constitution.

(b) the Act imposes an unreasonable restriction on the fundamental right of the writ petitioners ot practise guaranteed by Article 19(1)(g) of the Constitution.

(c) the Act was arbitrary and unreasonably and, therefore, violative of Article 14 of the Constitution.

Hence these appeals.

2. In order to appreciate the contentions of the appellants in this Court, it is necessary to trace the history of the West Bengal Health Service and the events which have occurred till date which have a bearing on the said contentions.

Prior lo 1958, the Health Service of the State of West Bengal consisted of different cadres, viz., (i) West Bengal Higher Medical and Health Services (Gr.I); (ii) The West Bengal Higher Medical and Health Services (Gr. II); (iii) The West Bengal Medical and Health Services including its Rural Branch; (iv) Gazetted Posts of Medical Officers not included in any of the above cadres; (v) The West Bengal Junior Medical and Health Services including its Rural Branch; (vi) Post of Licentiate Medical Officers not specifically included in the cadre of the West Bengal Junior Medical and Health Services but carrying the time scale of pay of that Service. It does not appear that these different cadres were constituted by rules made under Article 309 of the Constitution.

It was in 1958 that the West Bengal Health Service (WBHS) was first constituted with a unified cadre of doctors under the West Bengal Health Service (Cadre, Pay and Allowance) Rules, 1958. These rules also do not appear to have been framed under Article 309 of the constitution. Under these Rules, the doctors were classified into three broad categories, viz., (a) those who were engaged primarily in teaching along with the duties at the hospital to which the teaching institutions were attached, (b) those engaged on the curative side and attached to various hospitals and medical centers throughout the State and who were not engaged in teaching, (c) those who were primarily involved in administrative work.

No doctor was allowed to practise privately, whatever the category to which he belonged. Thus, private practice for Government doctors belonging to the WBHS was totally prohibited.

However, in 1965, the Slate Government passed an order relaxing the rule prohibiting private practice and permitted private practice to doctor occupying some of the posts in the WBHS subject to certain conditions. Those who opted for private practice had to forego certain pecuniary benefits such as non-practising allowance. They were further to submit their option in a prescribed form declaring that they had no claim or right as such to private practice and were liable to be transferred to any post in which private practice was not permissible. This step of allowing restrictive private practice was taken as a temporary and experimental measure. It was made clear that the position would be reviewed in the future in the light of the experience gained. Pursuant to the relaxation of the rule prohibiting private practice, those doctors who opted for private practice gave signed declarations and undertakings that they would not thereby deem to have acquired any right to private practice or appointment only to posts where private practice was permitted and that they were liable to be transferred to any post in the WBHS whether practising or non-practising, if the exigencies of the service so required.

After an experience of about 25 years of the relaxation of the rule prohibiting private practice, the State Government came to the conclusion that the system was not operating satisfactorily, and in particular, the quality of medical education in the State had deteriorated considerably. The main reason for the deterioration in the standards of education was that the doctors who were holding teaching posts were indulging in private practice taking advantage of the relaxation of the Rules. As a result, they were found largely absent from the class-room and were also found neglecting their duties in the hospitals attached to the teaching institutions. With a view, therefore, to arrest the deteriorating standards of medical education in the State, and to improve the same, the State Government decided as a matter of policy to bifurcate the existing unified Service and to create a separate Service known as the West Bengal medical Education Service (WBMES) for doctors exclusively engaged in teaching who would be debarred from private practice. This policy of the State Government was also in accord with the views expressed by the Medical Council of India from time to lime and its resolution passed in 1973 which in terms stated that “the leaching staff of all departments of a medical college shall be whole-time and non-practicing”. The policy was also largely in conformity with the National Health Policy declared by the Government of India in 1983, which among other things, stated that it was desirable for the State Government to take steps to phase out the system of private practice by the medical personnel in Government service. The policy was, further, supported by a report of the Standing Committee of the West Bengal Legislative Assembly on Health which attributed the fall in the standard of medical education in the State, among other things, to the fact that the medical teachers in the State were devoting considerable part of their working time to their private practice. As a result, the present Act viz., the West Bengal State Health Service Act, 1990 was passed. Some amendments were later effected to the Act.

Under the Act, two separate services were proposed to be constituted, viz., West Bengal Medical Education Service (WBMES) and West Bengal Health Service (WBHS). Section 3 of the Act gave power to the State Government to constitute the said two Services at different times. Section 12 of the Act gave option to the doctors of the former WBHS, who were holding teaching posts, to opt for WBMES or WBHS. The Section also made it clear that if (hose holding teaching posts and administrative posts in the former WBHS did not exercise any option, they shall be deemed to have opted for WBHS and for its Public Health-cum-Ad-ministration Unit respectively. The WBHS was, however, not constituted at that time.

On and from 25.5.1990, WBMES was constituted u/s 3 of the Act. It gave 90 days’ time to the doctors holding teaching posts to exercise option either to continue to hold the teaching posts or to join WBHS. It appears that former WBHS comprised about 6,600 doctors who were not assigned teaching work as against about 1400 doctors who were assigned the teaching work, and about 500 doctors who were detailed for the public health-cum-administrative work.

Pursuant to the option given, about 1200 doctors exercised their options for WBMES. Out of the remaining 200 teacher-doctors, 5 teacher-doctors and the West Bengal Health Service Association filed the writ petitions in question which have given rise to the present appeals.

3. It appears that the judgment of the Division Bench appealed against has been implemented insofar as the teacher-doctors who exercised their option in favour of WBMES are concerned. During the pendency of the present proceedings, the State Government on 3rd March, 1993 constituted the new WBHS u/s 3 of the Act, and also framed on the same date, the West Bengal Health Service Rules, 1993 (the ‘Rules’) and the West Bengal Health Service (Pay and Allowances, Superannuation and Pension) Rules, 1993.

It may be mentioned here that the Special Leave Petitions from which the present appeals arise, were heard on an earlier occasion when neither the new West Bengal Health Service was constituted nor the Rules for the same were framed. It was to enable the respondent-State Government to constitute the new WBHS that the matter was adjourned then till 9th February, 1993. This was without prejudice to the contentions of both sides in the Special Leave Petitions. When the matter reached hearing on 6th April, 1993, it was adjourned to enable the appellants to challenge the Rules. Accordingly, before us, the appellants have advanced their arguments challenging the provisions both of the Act and the Rules.

4. The contentions advanced on behalf of the appellants were as follows:

(1) The Act is repugnant to the Indian Medical Council Act, 1961, in so far as it prohibits private practice by doctors and therefore void by reason of Article 254 of the Constitution.

(2) Section 9 of the Act is violative of Article 19(1)(g) of the Constitution, since it prohibits those occupying posts in WBMES from carrying on private practice.

(3) Section 9 of the Act is violative of Article 14 of the Constitution since by reason of Section 11 of the Act, a member of the former WBHS appointed to a post included in the cadre of new WBHS other than the post in the public health-cum-administration, shall continue in such post on the same terms and conditions as were in force immediately before the coming into force of the Act. So also, by virtue of Section 18, the holders of the contractual posts on the same terms and conditions of the Service. The classification made between the members of the WBMES and those of the new WBHS and the holders of the contractual posts so far as the private practice is concerned, is not a reasonable classification and has no rational nexus with the object sought to be achieved by the Act. Even if the classifications between the members of WBMES and WBHS is valid on the ground that the former are teachers whereas the latter are not, the classification made between the members of the WBMES and the holders of the contractual posts, is not valid inasmuch as both may be teachers.

(4) The Act is unconstitutional since it docs not protect the appellants’ status after the exercise of option to join WBHS. For the same reason Rule 7 of the Rules is also unconstitutional.

(5) Rules 8 and 1.0 of the Rules are ultra vires Section 6(2) of the Act since having exercised the option for the WBHS, the said Rules entitle the Government to post the appellants even on the posts in WBHS which are non-practising.

(6) The decision with regard to the posting of the appellants is mala fide as is demonstrated by the fact that the said posting orders were issued even before the expiry of 30 days from the coming into force of the Rules, though such notice is required by Rule 5(ii) of the Rules.

(7) The provision contained in Section 16 read with Rule 8 of the West Bengal Health Services (Pay & Allowances, Age of Superannuation and Pension) Rules, 1993 is discriminatory. The age of retirement for the members of WBHS is 58 years whereas that of the members of the WBMES is 60 years with option for re-employment upto 65 years.

(8) Section 4(3) of the Act is arbitrary and, therefore, unconstitutional since it confers an absolute power on the Government to transfer appellants to a post in public health-cum-administration which is non-practising.

(9) Under Rule 7(1) of the Rules all the former teacher-doctors who opt for WBHS are either called Medical-Officers or Specialists. As a result, a senior professor with say 20 years of experience and one who has just qualified to become a Specialist would both be designated as Specialists and will be treated on par. Further the nature of duty, work, functioning and status would also be the same. This amounts to demotion to the seniOrs.

(10) The Act is discriminatory inasmuch as it does not apply to (i) Honorary and Emeritus Professors (ii) Ex-Management teachers (iii) Teachers belonging to the Dentistry.

(11) Section 6(2) makes a distinction between the doctors who held teaching posts and those who held non-teaching posts in institutions which are to be declared under the said provision as non-practising institutions. Those who held teaching posts on terms and conditions of practice are not to be allowed to hold such posts on terms and conditions of practice the moment the teaching institutions are declared as non-practising institutions. However, those who held non-teaching posts in such institutions on conditions of practice are given an option of practice or non-practice without any change of post or designation. If they exercise option for non-practice, they are given six months’ time from the date of exercising the option for winding up practice and if they do not exercise any option or exercise option for practice, they are to be transferred to a post in any other hospital on terms and conditions of practice. On the other hand, teacher-doctors who opt for WBHS for the sake of practice are neither guaranteed by the Act nor by the Rules their right to practise inasmuch as by virtue of Rule 10(1) of the Rules they are liable to be transferred to a non-practising post and by virtue of Rule 10(2) their privilege to practise can be withdrawn at any point of time. Thus, it is contended, it is a discrimination between the holders of teaching and non-teaching posts in the erstwhile institutions, violative of Article 14.

(12) There is also a discrimination between the teacher-doctors and other doctors inasmuch as no equivalence of posts and designations is guaranteed to the former when they opt for the WBHS as is guaranteed to the others, viz., (a) the doctors who were in the Public Health-cum-Ad-ministration of the former WBHS vide Rule 6(3); (b) former teacher-doctors who opt for WBMES; (c) non-teaching doctOrs. The former teacher-doctors opting for WBHS are merely called either Medical Officers or Specialists.

Rule 7(2) of the Rules is arbitrary and violative of Articles 14 and 19(1)(g) and is also ultra vires the Act inasmuch as it actually demotes persons like Professors, Assistant Professors or Readers who opt for WBHS since they would all come within the category of Specialists. Under the Rules they will all get a minimum basic pay of Rs. 3700 since the special selection post carries the said basic minimum salary. Hence Rule 7(2) is clearly arbitrary.

(13) Rule 10 01 the Rules is ultra vires Section 6(2) of the Act inasmuch as the Rule takes away right to practise given by Rule 6(2).

(14) The option given to the doctors is illusory and is rendered nugatory inasmuch as a teacher-doctor who wants to practise and, therefore, opts for WBHS may be transferred to Public Health-cum-Administration Unit. u/s 4(3) of the Act, the posts in the said Unit are non-practising and once a doctor is transferred to the siad Unit, he can never be transferred back as there is no provision either under the Act or the Rules (o transfer such doctor back to any other Unit. In other words, such doctor loses his right to practice forever. This provision is likely to be utilised for victimisation.

(15) There is a contradiction between the 4th the 5th proviso of Section 12 and the two provisos being self-contradictory cannot co-exist. Under the 4th proviso a person holding post in the former Public Health-cum-Administration who did not exercise any option shall be deemed to have exercised option for WBHS where practice is permissible. However, under the 5th proviso, a person holding the administrative post in the former WBHS who did not exercise any option is deemed to have exercised option for Public Health-cum-Administration Unit which is a non-practising post vide Section 10 of the Act.

(16) Section 14(2A) makes no sense inasmuch as under the said Section, non-leaching doctors of the former WBHS who may not be required to exercise any option u/s 12 shall be appointed to a teaching post in the WBMES even if they do not have requisite teaching qualifications. Even factually there are 6100 such doctors whereas the teaching posts do not exceed 1400 in number. The provision is, therefore, self-defeating.

(17) Since improvement in the standard of teaching and patient-care is the object for making the WBMES as a non-practising service, the grant of right to practise to 6100 doctors belonging to WBHS defeats the said object. There is no evidence of the deterioration in the standards of teaching in the medical institutes of the Slate inasmuch as in the All India Medical Entrance Test conducted by the Medical Council of India, about 25 to 30% of the candidates belonging to the State were selected during the last 3 years.

(18) The Constitution of WBHS is bad also on account of the fact that the members of the said Service have no scope for promotion as they will be stagnated only as Specialists.

With the introduction of the unified cadre of WBHS in 1958, the designations “Civil Surgeon”, “Assistant Surgeon”, “Sub-Assistant Surgeon” etc, were abolished and all officers of the cadre were called Medical Officers and were designated according to the post held by them in their respective cadre. The hierarchy of the integrated cadre consisted of 3 grades: (i) Basic; (ii) Selection; (iii) Special Selection in the ascending order. The doctor appointed in the basic grade was called Medical Officer. The next promotional post to the Medical Officer was of selection grade, and on specialisation in a particular subject and acquisition of prescribed qualifications and experience, the Medical Officer was further promoted as Specialist and became entitled to additional pay of the Specialist.

A doctor became eligible to promotion in the teaching hierarchy only after acquiring post-graduate qualification in the concerned discipline. After working for 3 years as Basic Teacher, he became eligible for promotion to the post of a Lecturer and after 5 years of total teaching experience out of which at least 2 years as the Lecturer, the Lecturer was promoted to the post of an Assistant Professor. After 7 years of total teaching experience out of which 2 years had to be as an Assistant Professor, the Assistant Professor was elevated as a Reader and the Reader became eligible for promotion to the post of the Associate Professor after 9 years of total teaching experience out of which 2 years’ experience had to be as a Reader. The next post of promotion was that of the Professor which required 11 years of total teaching experience out of which 2 years’ experience had to be as an Associate Professor. The next promotions were that of the Principal and Director of Medical Education. The Specialist Medical Officers possessing recognised post-graduate qualifications in particular subjects, even though they had no past teaching experience, were also considered for appointment as Lecturers in the concerned disciplines provided they had served in the District, Sub-Division or any other State hospital as Specialist for at least 4 years.

Under the present Rules no equivalent posts for WBHS have been created. All members of WBHS (excluding those appointed to the posts in Public Health-cum-Administration Unit) are sought to be designated under Rule 7(1) of the Rules either as Medical Officers or as Specialists.

(19) u/s 12 of the Act while option has been provided to the doctors who had held teaching posts, no such option has been provided to those who did not hold the teaching post although they have either acquired the requisite post-graduate qualifications and had undertaken basic training and were qualified to be appointed as teachers and in particular to those who had also been empanelled for being promoted to the teaching hierarchy.

Whereas 80% of the members in Service were denied the right to join WBMES, a large number of doctors appointed to the post of “Basic Teachers” in non-clinical discipline and who do not possess the requisite eligibility qualification, viz., post-graduate degree in the relevant subject have been provided with option to join WBMES.

(20) The seniority of the members of WBMES has not been protected due to the introduction of “Pay to Post” rule and by the abolition of “Pay to Person” rule under the former WBHS, Under the former WBHS, the seniority of the doctor was protected due to the fact that the pay and seniority were attached to person wherever he moved and not to the post he happened to occupy at any period of time during his service. As a result of the introduction of the new rule in the cadre of WBMES, the senior doctors who opted for the WBMES were seriously prejudiced inasmuch as they were compelled to sacrifice their seniority and pay-scales earned through long years of service. The senior members of the former WBHS drawing higher pay-scales but possessing lower teaching posts are being placed in junior posts with lesser pay than that of their junior in service who were promoted to higher posts earlier but were drawing lesser pay in the former WBHS. The junior doctors have all of a sudden become eligible to be placed in the higher posts with higher pay than that of their seniOrs.

(21) The non Constitution of the WBHS prior to calling upon the doctors who held teaching posts to exercise their irrevocable one-time option without having any opportunity to weigh the pros and cons of both the services, was mala fide. The commission to constitute WBHS prior to requiring the teacher-doctors to exercise their option has led to the following result: (i) A large number of senior doctors by opting for the WBMES are now compelled to sacrifice their seniority and pay-scales earned through long years of service and junior doctors have all of a sudden become senior to them. No protection of pay and seniority has been provided for in the Act. (ii) The members of the former WBHS who could not or had not exercised option for WBMES are being posted in the junior posts which they had held at the threshold of their service-career on in the non-existent posts, (iii) Some doctors where not able to exercise their option because the promotions due to them to special selection grade and higher academic rank such as Professor, prior to the coming into force of the Act were not given to them and they had sought clarifications from the Government whether they would he given their said ranks in the WBMES. But no clarifications were forthcoming. They are entitled to a fresh opportunity for exercising the option to choose between WBMES and WBHS. (iv) In any case, all the doctors affected by the orders of transfer should be deemed to have been denied the opportunity to exercise their option, since they were asked to exercise the option before WBHS was constituted. All the said doctors should be given a fresh opportunity of exercising their option now that the WBHS has been constituted. (v) The seniority position and status of the members of the WBHS should be maintained. (vi) Those who held teaching posts in the former WBHS have been transferred to such non-teaching hospitals where they are placed to work under the control of their junior officers appointed as Superintendents of the said hospitals. (vii) Whereas under new WBHS, the hierarchy is created for Public Health-cum-administration Unit to protect seniority and status, no such hierarchy is created for the other members of WBHS. (viii) There is no provision for promotional opportunity in the new WBHS as there was in the former WBHS. (IX) By summary orders of transfers, the members of former Health Service are being sought to be transferred and reap-pointed to either feeder posts or non-existent posts under threats and humiliation. (x) A number of doctors appointed in the cadre of WBMES though senior were transferred to posts lower than of their juniors. (xi) Although the Act provides that persons not exercising option in the cadre of WBMES shall be deemed to have exercised option for the cadre of WBHS, some doctors who did not exercise option have been absorbed in the posts of WBMES by notification dated 6.9.1992. (xii) Although the Act specifically provides that no appointment in the cadre of WBMES shall be made except through Public Service Commission by number of orders, the respondents have appointed persons in the cadre of WBMES on their own and Specialist doctors of the WBHS have been transferred to District or Sub-Divisional hospitals and centers which do not have the required infrastructure to utilise their expertise.

5. As regards the first contention viz., that the Act is repugnant to Section 27 of the Indian Medical Council Act, 1956, the argument is that the Central Act is relatable to Entry 26 of the Concurrent List which reads as “legal, medical and other professions”. Insofar as the Act relates to the rights of the Medical Officers to practise, it is also relatable to the same Entry. Section 27 of the Indian Medical Council Act provides that every person who is enrolled as a medical practitioner on the Indian Medical Register shall be entitled, according to his qualifications, to practise in any part of this country, and to recover in due course of law in respect of such practice, any expenses, charges in respect of medicaments or other appliances or to any lees to which he may be entitled. Since the Act imposes on the members of the WBMES as well as some members of the WBHS restriction on their right to practise, it is repugnant to the Central Act and, therefore, void under Article 254(1) and (2) of the Constitution.

This argument ignores the basic objects of the two legislations which are distance. The object of the Central act is (a) to give representation to licentiate members of the medical profession, (b) to provide for the registration of the names of citizens of India who have obtained foreign medical qualifications, (c) to provide for the temporary recognition of medical qualifications granted by medical institutions in the countries outside India, (d) to provide for the formation of the committee of postgraduate medical education of the purpose of assisting the Medical Council of India to prescribe standards of post-graduate medical education for the guidance of universities and to advise universities in the matter of securing uniform standards for post-graduate medical education, and (e) to provide for the maintenance of an All India Register by the Medical Council of India.

It is in this context that provisions of Section 27 have been enacted, prescribing privileges of the persons who are enrolled in the Indian medical Register. That does not mean that those who give up the said privileges voluntarily, can continue to enjoy the same u/s 27 of the Act. Those who are enrolled on the Indian Medical Register are not compelled to seek service either private or public. However, once they seek employment, they have to abide by the terms and conditions of the employment. Section 27 does not prevent persons enrolled in the Indian Medical Register from seeking employment on such terms and conditions as they may choose to secure it nor does it prohibit agreements of service which entail giving up of the privileges mentioned in it.

In view of this position in law, it is really not necessary to go into the question whether both the Central and the present State Act occupy the same field of legislation or not. The same may, however, be dealt with here. The object of the Act is to create different Health Services and to regulate the conditions of service of the members of the said services with a view to improve their functioning, the utility. The Act does not regulate the rights and privileges of the members of the medical profession in general. The Act has obviously been enacted under entry 41 of the State List which empowers the State to constitute State Public Services and read with Article 309 of the Constitution, vests power in the State Government to lay down conditions of service of the members of the Services so constituted. Hence the subject of the two legislations, and the area occupied by them are different. That the Act incidentally restricts the privileges of those who join the services (sic) under it does not make it a legislation laying down or governing the privileges of all those who arc enrolled on the Indian Medical Register. There is thus no conflict between the provisions of the two and hence there is no repugnancy between the two under Article 254 of the Constitution.

The reliance placed in this connection, on H.S. Srinivasa Raghavachar Vs. State of Karnataka and Others, is equally misplaced. In that case, Sub-section (8) of Section 48 of the Karnataka Land Reforms Act, 1962 which prohibited legal practitioners from appearing in the proceedings before the Tribunals was held to he unconstitutional being repugnant to Section 30 of the Advocates Act, 1961, and to Section 14 of the India Bar Council Act. The legal practitioners appearing in the proceedings before the Tribunals under the Karnataka Land Reforms Act were not members of any service-private of public -and had no given up their right to practise in lieu of accepting the benefits of services. That obviously is not the case before us. The doctors in question have voluntarily become members of the State Health Service and have subjected themselves to its terms and conditions, one of the terms being that they will have no right to practise privately. This being the case, it is difficult to see how the decision in question is relevant to the facts of the present case.

6. As regards the second contention, viz., that Section 9 of the Act is violative of Article 19(1)(g) of the Constitution since it prohibits the members of the WBMES from practising privately, the contention has only to be stated to he rejected. In the first instance, the Act docs not prohibit private practice by medical practitioner as such. The Act is not enacted to regulate practice of the medical practitioners in general. It is only those medical practitioners who choose to become members of the Service constituted under the Act including the WBMES who are prohibited from practising privately. As has been pointed out earlier, since 1958 to 1965 no member of the former WBHS – whether he held the teaching or non-teaching post, was allowed to practise privately. It was only in 1965, by a memorandum dated 1.4.1965, that temporarily and as and by way of an experiment the relaxation was made and the members of the former WBHS were granted the privilege to practise subject to certain terms and conditions. It was then made clear that the relaxation shall not confer upon the Medical Officers any claim for appointment to any of the posts on practising terms. While making the said relaxation, it was also made clear that the position would be reviewed in future in the light of the experience gained. What is more, each member of the Service who opted for private practice had to give a signed declaration that he shall not acquire any claim for appointment only to practising post in future and that he shall continue to be liable to be transferred to any post in the cadre, practising or non-practising, in the exigencies of public service. This position continued till the end of 1989, when on the basis of the experience gained, the State Government came to the conclusion that the system was not working satisfactorily and in particular the quality of the medical education in the Slate has deteriorated considerably. That led to the present Act and the Rules.

What is further of importance to note is that the right to private practice is not given to the Government Medical Officers in most of the places since it conflicts with the duties of such officers as Government servants. Article 19(1)(g) confers on citizens right to practise any profession, or to carry on any occupation, trade or business for their individual benefit. It does not create an obligation to do so. It is for the citizen to exercise or not his said right. Further, the Article does not oblige a citizen to practise any particular occupation, business of trade. He is free to follow any occupation and on such terms and conditions as he chooses. It does not prevent him from accepting its discipline including such rights and obligations as flow from it. As in the present case, those who join the Government service with the full knowledge that they will have no right to practise the profession privately, agree to give up their right as private practitioners in consideration of the security, status and privilege as a Government servant. The Government service is also an occupation and those who choose it cannot complain of its discipline or insist upon pursuing it on their terms. Nobody compels them to join it if they want to practise their profession privately. They are free to leave it at any time. The restriction imposed by Section 9 is not on the freedom to practise the medical profession but on such practice while one continues to be the member of the State Service. Article 19(1)(g) does not give a citizen a right to carry on any profession irrespective of the fact that he has voluntarily accepted restrictions on his said right in consideration of other rights, as in the present case. In (he circumstances, it is not even necessary for the State to invoke the provisions of Clause (6) of Article 19(1)(g) which permits the State to impose reasonable restrictions on the exercise of the right in the interest of the general public. The present Act constitutes health services for the State. The State has a right to recruit officers to such services on such terms and conditions as it deems desirable to make the services beneficial to the members of the public. The restriction imposed on the members of such service that they shall not be entitled to private practice so long as they continue in the State Service is a reasonable restriction on the officers of the State being in the interest of the general public, as explained earlier. Those who join the Service are bound to abide by it, being a condition of service voluntarily sought by them.

What is more, Section 9(2) also makes provision to grant non-practising allowance to the members of the WBMES which is obviously in lieu of the right to private practice. This allowance is of course in addition to the salary, other allowances and perks and privileged including a higher superannuation age of 60 years and re-employment upto the age of 65 years. It is, therefore, difficult to understand the contention that Section 9 contravenes the fundamental right of the members of WBMES to practise their profession privately.

The contention further that the restriction is unreasonable because the members of the other service, viz., WBHS (excluding those attached to the Public Health-cum-Administration Unit) have been extended the right to practise is also unsustainable. In the first instance it is not correct to say that the members of the WBHS have been given a right to practise. On the other hand, the provisions of the Act as well as the Rules make it clear that what is extended to them is only a privilege to practise which may be withdrawn at any time. Further even this privilege is not extended to all posts and the members of the Service are transferable from the posts with the privilege to practise to the posts without such privilege. Secondly, the service conditions in the two Service differ. There is a hierarchy of posts in the WBMES, higher superannuation age with a right to re-employment, non-practising allowance etc. with advantages are not available to the members of the WBHS. Lastly, the purpose of the two services is different. While the WBMES is constituted for imparting medical education and incidentally to take health-care of the patients in the hospitals attached to the teaching institutions, the WBHS is constituted to make available the service in the Government hospitals to the members of the public. According to the present review of the situation and the considered opinion expressed by the expert bodies, private practice does interfere with the work of the teacher-doctors both in the class-room as well as in the hospital. There is, therefore, a need to stop the same in the interests of both the improvement of the standards of the medical education as well as the betterment of the health-care service in the teaching hospitals. The ban on private practice will make available to the teacher doctors the time required for reading and research which is absolutely essential for their main profession as teachers. For the members of the WBHS, the time for reading and research is not essential. Hence, there is nothing unreasonable in prohibiting practice for the members of the WBMES while not prohibiting it for the members of the WBHS.

7. The third contention which seeks to attack the provisions of Section 9 on the ground that it is violative of Article 14 of the Constitution is advanced thus. u/s 11 of the Act, a member of the former WBHS who is appointed to a post in the new WBHS, other than the post in the Public Health-cum-Administration Unit, shall continue in such post on the same terms and conditions as were in force immediately before the coming into force of the Act. So also, by virtue of Section 18, the holder of the contractual posts in the former WBHS, will continue to hold such posts on the same terms and conditions of service. The important term and condition of service of both is the right to practise privately. Hence the classification made between the members of the WBMES and those of the new WBHS and the contractual holders of posts so far as private practice-is concerned, is not a reasonable classification and has no rational nexus with the object sought to be achieved by the Act, viz., improvement of the quality of teaching as well as of the hospital care. The non-teaching doctors responsible for hospital care are also expected to be available on duty for 24 hours of the day. However they are permitted to carry on private practice. It is further urged that even if the classification between the members of WBMES and WBHS is valid on the ground that the former are teacher whereas the latter are not, the classification made between the member of WBMES and the holders of the contractual posts is not valid inasmuch as both may be teachers.

As pointed out earlier, the purposes of the two services and the duties and functions of their members are different. Hence, their service conditions also differ. The two services, therefore, cannot be compared. The ban on private practice is intimately connected with the nature of the duties the members of the WBMES are called upon to discharge. It is unnecessary to emphasise that the teacher-doctors if they are to be true their profession, must undertake studies and research and be upto date in their subjects. Medicine is one of the fast growing faculties and is making advances at an ever increasing pace. It is not difficult to appreciate that those who have their private practice to look after, find no time for studies and research and thus to be upto date in their subject. That was also the experience of the State Government who found that the teacher-doctor were concentrating on their private practice to the neglect of their duties as teachers. It is for this reason that it was felt necessary to constitute a separate cadre of teacher-doctors with separate service conditions. It is not, therefore, proper to compare the duties of the non-teacher-doctors who arc members of the WBHS with those of the member of the WBMES. It is true that the members of the WBHS are also supposed to be available for work 24 hours of the day. It is, however, common knowledge that the doctors have their duty shifts, and their services arc requisitioned outside their shift-hours only if they are found necessary. When their services are so requisitioned, they are bound to and do in fact attend to the call of duty whether they hold practising or non-practising posts. Secondly, since (hey do not have the duty of teaching, they are not required to devote their time to study and research as the teacher-doctors are, although every doctor whether teacher or non-teacher, is expected to remain reasonably abreast of the general developments in medical science. The non-teacher doctor when he practices privately outside his duty hours only carries on the same kind of work which he docs during his duty hours. He does not have to change the nature of his work. Hence when the privilege of practising privately is extended to him, when it need not be withheld from him, the work in the Government hospitals need not necessarily suffer. However, the Government has, under Rule 10(2) of the Rules, taken care, as stated above, to reserve to itself the power to withdraw even that privilege if the Government finds that on account of the facility given to practise privately, the work in the hospitals is affected. The privilege further is extended only to the select posts and not to all the posts in the WBHS. That also shows that the privilege is granted either where it is not likely to interfere with the regular work or where the medical service is not available to the people otherwise outside the duty-hours in the hospital.

As regards the holders of the contractual posts, again there cannot be any comparison between them and the members of WBMES. The terms and conditions on which their services are engaged are materially different from the terms and conditions of service of the members of the WBMES. Section 18 of the Act saves such contracts which are entered into prior to the coming into force of the Act. As has been pointed out by the State Government, the holders of such contractual posts are professors, assistant professors, surgeon or physicians in the leaching institutions. They are engaged on contractual basis because the Government finds that otherwise their services which are essential for running the teaching institutions cannot be procured, and for want of their services, the leaching institutions would suffer. The persons so appointed are limited in number and they will continue to serve till the expiry of the tenure or their contracts. There cannot, therefore, be any comparison between the members of WBMES which is a regular service constituted by the State and the holders of the contractual posts which are not governed by any service rules but by the terms of their contracts and who are engaged for specific purposes. Section 18 of the Act, in terms, states that the provisions of the Act shall not apply to such persons. There is, therefore, no merit in the contention that Section 9 of the Act is discriminatory and violative of the provisions of Article 14 of the Constitution because, it makes distinction between the members of the WBMES and the members of the WBHS and those holding the contractual posts.

8. Underlying the fourth contention is the premise that the Act has been enacted to create the posts of “equivalent” status in the two services viz., WBMES and WBHS and the privilege to practise privately attached to some posts in WBHS is right. Both the premises arc incorrect. The Constitution of the WBMES is obviously of a different genre than that of the WBHS. The hierarchy of the posts in the teaching service is bound to be different from that in the health service. It is unreasonable to expect that the designations, hierarchy and the qualifications for the posts would be the same in the two Services. This being the case, it is unprofitable to search for equivalence in posts in the two services. Since those holding teaching posts are given option either to join WBMES or WBHS, on their opting for the WBHS, they cannot complain if they are posted, according to the qualifications as Medical Officers or Specialists. Since these are the only posts available there, the Government cannot be expected to create as many hierarchical posts in the new WBHS as there were in the teaching faculty in the former WBHS.

Rule 7 of the Rules makes it abundantly clear that members of the WBHS (excluding those appointed to the posts in the Public Health-cum-Administrative Unit) shall be either designated as Medical Officers or declared as Specialists. Sub-rule (2) of Rule 7 prescribes qualifications for the posts of the Medical Officer and Specialists. Sub-rule (3) further states that the Specialists will not be posted at institutions mentioned in items (a), (b) and (f) of Schedule II of the rules which are rural primary health centers and block primary health centers, rural hospitals and medical colleges and other teaching institutions declared to be non-practising institutions. Thus Rule 7(3) in terms protects the Specialist’ interests by providing that they will be posted only at institutions mentioned in (c), (d) and (e) which are sub-divisional and district hospitals, specialised hospitals in T.B., leprosy and mental and infectious deceases (excluding those hospitals declared as non-practising institutes) and all State general hospitals and State hospitals situated in the districts and at Calcutta. Hence, there is no discriminatory treatment being accorded to the former teaching doctors on their exercising option for the WBHS on account of the fact that the so-called equivalent posts are not created in the WBHS to accommodate them.

9. The assumption underlying the fifth contention is that the person holding a non-teaching post in the teaching institution in the former WBHS who opts for a post in the new WBHS where private practice is permitted, cannot be posted to a post where private practice is not permitted. That assumption itself is incorrect since the provisions of Section 6(2) are subject to the provisions of Section 4(3), 4(4), 5 and 11 of the Act. u/s 4(1), except the basic level teachers, no other member of the WBMES can be transferred to WBHS. u/s 4(2), no person appointed to WBHS can be transferred to WBMES. u/s 4(3), any person appointed to a post in WBHS (other than the post in the cadre of the public Health-cum-Administrative Unit) may be transferred to a post in the Public Health-cum-Administrative Unit. It may be mentioned here that the posts in the Public Health-cum-Administrative Unit are non-practicing. u/s 4(4), the State Government has the right to transfer any person from one post to another subject to the provisions of Sections 4(1) and 4(2). In other words, the State Government has the right to transfer a person form any post to any other post, so long as there is no transfer of a member of WBMES (except the teacher holding the basic level posl) to WBHS, and of a member holding post in the WBHS to the WBMES. Section 5 further empowers the State Government to appoint any person to hold two or more separate posts on such terms and conditions as may be prescribed. Section 11 makes it clear that any person of the former WBHS who is now appointed to a post in the new WBHS (other than to a post in the Public Health-cum-Administration Unit) shall continue in such post on such terms and conditions as were in force immediately before the coming into force of the Act. On the day the Act came into force, the new WBHS was not formed and the Rules governing the new WBHS were not in existence. On the formation of the new WBHS and the formulation of the Rules for the same on 3rd March, 1993, the Rules governing the former WBHS stood repealed and the new Rules viz., the Rules under discussion, came into force, and have become applicable to the new WBHS by virtue of Section 3 of the Act. Hence, Rules 8 and 10 of the Rules have taken the place of the Rules which were governing the posts in the WBHS on the date the Act came into force. The earlier rules had also not vested the posts in the WBHS with any right or permanent privilege of private practice. The privilege was liable to be withdrawn at any time. The incumbents of the post were also transferable from the practising to the non-practising posts. In view of the said position, there is no conflict between Section 6(2) and Rules 8 and 10 of the Rules. It is true that the last proviso to Section 6(2) states that persons holding non-teaching posts on terms and conditions of practice in the institutions which are declared non-practising under the Act have a right to opt for practice or non-practice without any change of post or designation and when any such persons do not exercise option or exercise option for practice, they are to be transferred to a post in any other hospital on terms and conditions of practice. Since however, as explained above, they had even earlier i.e., prior to the coming into force of the Act, held the practising posts in question subject to the Government’s right to transfer them to a non-practicing post and since further the facility to practise was not a right but only a privilege which could be withdrawn by the government any time, the provisions of Section 6(2) read also in the light of the other provisions of the Act, have to be construed to mean that those who do not exercise any option or opt for practice, are to be accommodated as far as possible in the posts which carry the privilege of practice. This position obtainable under the various provisions of the Act referred to above, is crystallised in Rules 8 and 10. Rule 8 states that those members of the WBHS who are posted in the health centers, rural hospitals and teaching hospital mentioned in items (a), (b) and (f) of schedule II of the Rules, shall not engage in private practice. By implication, the members of the WBHS who may be holding posts with the privilege of practice are liable to be transferred to the said non-practising posts. Rule 10(1) further makes clear what is otherwise implicit in Rule 8, viz., that those members of the WBHS who hold posts in institutions mentioned in items (c), (d) and (e) of Schedule II of the Rules which are practising posts, although they opt for the same posts, will not have any right but only a privilege to engage in private practice and that they may be transferred to any post in the WBHS where private practice is not permitted including the posts in institutions in item (a), (b) and (f) of the said Schedule. Rule 10(2) further makes it clear that even the privilege of private practice carried with the post including the posts in the institutions mentioned in item (c), (d) and (e) of the said Schedule, may be withdrawn by the State Government at any time if it is considered necessary or desirable in the public interest. The contention is thus a product of the misconception firstly that every post belonging to the WBHS carries a right or a permanent privilege to practise and that the members of the WBHS are not transferable from the practicing to the non-practising posts in the said Service. Hence, the same has to be rejected.

10. The sixth contention is advanced against the posting orders dated 15.3.1993 of the appellants which were issued even before the expiry of 30 days from the coming into force of the Rules which is in contravention of Rules 5(ii) of the Rules. Apart from the fact that the contention is directed against the legality of the transfer orders which have nothing to do with the vires of the Act or the Rules, there is nothing to show that the appellants have suffered any prejudice on account of the said orders. The fact remains that the appellants did not exercise their option even within 30 days prior to the coming into force of the Act and for that matter at any time thereafter. If they had in fact exercised their option to join the WBMES during the period given to them under Rule 5(ii), the transfer orders would have been rendered nugatory. Since they had not exercised their option, under the 5th proviso to Section 12, they are deemed to have exercised option for WBHS. None prevented them from exercising their option for WBMES during the stipulated period and had they done so they could not have been transferred to WBHS. It is difficult to accept the contention that merely because the transfer orders were issued before the expiry of the stipulated period, the transfer order were a mala fide exercise of power. They could not have been given effect to, before the expiry of the stipulated period, and as stated earlier, the right of the, appellants to exercise their option within the stipulated period was not taken away by the said orders. The contention has, therefore, to be rejected.

11. The seventh contention that the enhanced age of superannuation prescribed for the members of the WBMES u/s 16 of the Act is discriminatory is difficult to under stand. The two services being distinct and their duties and functions being different, different service conditions can be prescribed for the members of the two services. The WBMES is constituted separately to improve the quality of the medical education in the State. Ordinarily, the members of the teaching staff in all the disciplines retire at the age of 60 years and that is for a valid reason. In view of the knowledge acquired and the research made in the particular subject in which the teachers are specialised in a discipline like the medicine, there is nothing wrong, if the State Government should desire to utilise the services of the teacher-doctors for a longer period, in the public interest. That is why the superannuation age of the members of the WBMES is fixed at 60 years as against the superannuation age of 58 years fixed for the members of the WBHS including for those posted in the Public Health-cum-Administration Unit. It is with the same intention that a provision had also been made u/s 16, for re-employment of the members of the WBMES upto 65 years of after superannuation. There is, therefore, no merit in the contention.

12. The eighth contention need not detain us long in view of what is explained above. All posts in the WBHS do not carry the privilege of private practice. There are some posts which do not carry such privilege. Further, even those posts which carry the privilege of private practice, do so only temporarily since the State Government has reserved to itself the power to withdraw the said privilege at any time. The Act and the Rules also make it clear that the members of the WBHS are liable to be transferred from the practising posts to the non-practising posts and vice versa depending upon the exigencies of the service. The Public Health-cum Administration Unit of the WBHS has only non-practising posts. There is, therefore, no merit in the contention that a person who opts for the WBHS should not be transferred to the post in Public Health-cum-Administration Unit because it is a non-practising post. Since there is no right of private practice attached to any post, the contention that u/s 4(3) a person opting for the WBHS is liable to be transferred to a post in the Public Health-cum-Administration Unit and that, therefore, the said provision is arbitrary cannot be accepted. The transfers are a matter of executive policy and are made as directed by the exigencies of the service. Section 4(3) incorporates no more than the said policy.

The ninth contention is obviously based on a misconception of the structure of the WBHS. Under Rule 7(1), the WBHS (excluding the Public Health-cum-Administration Unit) consists of members who are either Medical Officers or Specialists. There are no other Posts or designations. Rule 7(2) states that a member of the WBHS who holds post-graduate degree and has at least 5 years’ experience as a Medical Officer or a member of the said Service who holds a diploma but has at least 8 years’ experience as a Medical Officer may be declared as Specialist. It further says that the diploma holders with 8 years’ experience as Medical Officers may be declared as Specialists only in the dearth disciplines, viz., Radiology, Anestheology, Opthamalogy, Paediatric, Dermatalogy, Vernal diseases, Psychiatry and Otorihnolaringology. Rule 7(3) then states that no Specialist shall be posted in any of the Health centers, Rural Hospitals or Teaching Hospital mentioned in items (a), (b) and (f) of Schedule II of the Rules. The rule lays down qualifications to become a Specialist and all those who satisfy the said qualifications may be declared as Specialists. It is difficult to understand as to how a grievance can be made against declaring all those who have put in qualifying period of service as Specialists. This is bound to happen in any Service and seniors cannot make any grievance that the juniors who qualify are also called specialists along with them. Underlying this contention is a grievance that there are no more hierarchies in the WBHS. The fact that both juniors and seniors are declared as Specialists does not in any way lessen the importance of the senior Specialists. The mere number of years in service does not give anyone a higher status in Service. The status depends upon the quality of the person’s work. It may happen that the qualify of a junior’s work may be better than that of his senior. The contention must, therefore, fail.

The tenth contention is equally frivolous. The contention is that the Act is discriminatory because it does not apply to (i) Honorary and Emiretus Professors: (ii) Ex-management Teachers and (iii) Teachers belonging to the Dentistry. None of them belonged to the former WBHS. The “Emiretus Professors” as the expression itself denotes, are eminent teacher-doctors who have retired from the Health Service. They arc paid for their service a token conveyance allowance of about Rs. 250 per month. They are, therefore, a class by themselves and cannot be compared with the regular members of the WBMES or the WBHS. The Dental Doctors or Surgeons belong to a separate service known as the West Bengal Dental Service and their service conditions are determined by the rules of the said Service. They are also, therefore, a distinct class. As regards the Ex-management teachers who are about 10 to 15 in numbers at present, their service conditions as explained by the respondent-state Government are governed by the provisions of Talking-over of the Management Act under which the management of some private institutions was taken over by the State Government. Thus all the three categories belong to separate classes which have nothing in common with either of the two services, viz., the WBMES or the WBHS. It can, therefore, be hardly contended that the Act is discriminatory because it does not apply to the said three classes.

The eleventh contention has been broadly dealt with earlier. Section 6(2) does make a distinction between those who held teaching posts and those who held non-teaching posts in the teaching institutions and the hospitals attached to them where formerly private practice was permitted. The Section states that all those who held posts in such institutions on the condition of practice will cease to hold such posts on such condition after the institutions are declared as non-practising ones. To those who held non-teaching posts in such institutions with the condition of practice, it gives an option for posts with practice or without practice. In either of the cases, they are not to suffer a change of their posts or designation if they exercise there option within the stipulated time. It also says that if such a person does not exercise any option or exercises option for practice, he shall he transferred to a post in any other hospital on terms and conditions of practice. However, neither the post or designation nor the right to practise of those who held teaching posts in such institutions is protected. Hence the Section is not discriminatory. The contention misses the purpose of (he provisos to Section 6(2). The said provisos deal with only those who held non-teaching posts in the institutions in question on terms of practice and who have to he transferred from there to the other institutions on exercise by them of their option. It is sections 12 and 13 which deal with the appointment of the teacher-doctors to the non-teaching institution on their exercising or not exercising their option. What is further to be noted is that the non-teaching posts continue in the institutions concerned but without the right to practise. It was, therefore, necessary to give the option in question to the holder of the non-teaching posts between the practising and non-practising posts, since the only alternative before them, after the institutions were declared non-practising, was either to continue in the said institutions or move out to other posts in the WBHS itself which consisted of both practising and non-practising posts. There was no option for them to join the WBMES as was open to those who held the teaching posts. Their designations whether working in the Administration Unit or otherwise needed no change for they were being transferred from non-teaching posts to non-teaching posts. Even those who held teaching posts did not suffer any change in their posts or designations since they continued to hold their posts in the new dispensation subject to the only condition that they would cease to practise from the date the institutions were declared as non-practising. However, if they choose to opt for posts in the cadre of the WBHS they could do so, and could be posted either to the practising posts or to the non-practising posts according to the exigencies of the service. So also those who held non-teaching posts could be posted to the posts in the WBHS which are practising as well as non-practising since their posting is also subject to the other provisions of the Act. Since 6(2) does not confer on those who held non-teaching posts with the condition of practice a right to practise or a right to a practising post. Consistent with the scheme of the Act, It merely provides that the persons who held non-teaching posts with the condition of practise earlier may be transferred to a practising post as far as possible since they are not given an option to join the WBMES. That, however, does not mean that the said Section confers on the holders of the non-teaching post a right to practise or a right to a practising post. There is thus no discrimination between those who held teaching posts and those who held non-teaching posts.,

13. The twelfth contention is only to be stated to be rejected. A part of it has already been dealt with earlier. The teaching posts have their on designations and require appropriate qualifications for appointment to them. It is unreasonable to expect that posts and designations equivalent to the said posts should be created in the WBHS to accommodate the former teacher-doctors opting for the WBHS. In the WBHS excluding its Public Health-cum-Administration Unit, the only posts are, as stated earlier, those of Medical Officers and Specialists. The former teacher-doctors when they opt for the cadre of the WBHS would either be Medical Officers or Specialist depending upon their Qualifications specified in Rule 7(2). The Public Health and Administration of the former WBHS has become a separate Unit of the new WBHS. Therefore, there is no question of changing either the posts or the designations in the new Unit and those who belonged to the former Public Health and Administration would now occupy the same posts and designations in the new Unit. Hence the mere fact that the members of the former Public Health and Administration shall be appointed to the equivalent posts in the new Unit does not spell out discrimination in their favour as against the teacher-doctors opting for the WBHS. In their case, there is no change in the nature of duties and functions. The old service stands as if transferred to the new WBHS. Hence, there is no need to create any new posts and designations. There is also no similarity between former teachers who opt for the WBMES and those who opt for the WBHS. The former would continue in the teaching service and, therefore, would continue in the same posts with the same designations. In their case also there is non change in the duties and functions. The latter would, however, have to be appointed either as the Medical Officers or the Specialists depending upon their qualifications, as stated earlier. As regards the non-teaching doctors of the former WBHS, they would also occupy either of the said two posts in the new WBHS depending upon their qualifications. Their cases also cannot be compared with the former teacher-doctors who opt for the WBHS and a grievance be made that whereas the former non-teaching doctors have the protection of their earlier posts and designations or have an appointment to the equivalent post in the WBHS, the former teacher-doctors do not have such advantage. There is thus nothing arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution in Rule 7(2) of the Rules on that account. Nor is the said Rule ultra vires the Act. There is no demotion of the former ProfessOrs. Assistant Professors or Readers who opt for the WBHS merely because they would all come within the category of the Specialists when they join the new WBHS. There is no gradation among the Specialists. It is the actual work performed which grades a specialist in the eyes of the people. A mere designation as a Specialist does not by itself upgrade the work of the medical practitioner. The pay of Rs. 3700 is the minimum basic pay attached to the special selection post. It does not mean that whatever the salary which was received by the professors, Assistant Professors or Readers earlier would not be protected when they opt for the posts in the WBHS if the said salaries are higher then the minimum basic pay.

The thirteenth contention is a repetition of the earlier contentions. As has been explained in detail earlier, neither Section 6(2) non any other provision of the Act confers any right to practise on any post in the cadre of the WBHS. It is only a temporary privilege which can be withdrawn by the Government at any time. The members of the WBHS are further liable to be transferred from the practising posts to the non-practising posts. The WBHS consists of both the said posts. Rule 10 of the Rules is, therefore, non ultra vires Section 6(2) of the Act.

The fourteenth contention has also been dealt with earlier. The contention that Section 4(3) enables the Government to transfer a person appointed to a post in the WBHS, to a post in the Public Health-cum-Ad-ministration Unit and is, therefore, arbitrary, has to be rejected. The transfer is matter of executive policy and the Act makes the services of persons transferable from one post to another, whether practising or non-practising, to meet the exigency of the service. No exception can, therefore, be taken to the provision which enables the government to transfer a person from the posts in the WBHS to the post in the Public Health-cum-Administration Unit where all posts are non-practising. It is also not correct to say that those who are posted in the Public Health-cum-Administration Unit cannot be transferred outside the said Unit. Apart from the fact that the said Unit is an integral part of the WBHS, Section 4(4) gives power to the government to make transfer from one post to another which will also include transfer from the said Unit to a post outside it. It is, therefore, incorrect to say that once a person is transferred to a post in the said Unit, he looses for ever an opportunity to be transferred to a practising post. Since there is only a privilege of practice associated even with the practising posts, and the said privilege can be withdrawn at any time, and since the persons are transferable from practising posts to non-practising posts and back, it is incorrect to contend that the option given to join the WBHS is illusory.

It is also incorrect to contend that the said provision is bad because it is likely to be utilised for victimisation. If a transfer is motivated by a desire to victimise any person, the specific transfer can always be challenged in a court of law. However, no provision can be struck down on the ground that although it is valid, it is likely to be used for an unauthorised purpose.

The fifteenth contention is that there is a contradiction between provisos 4 und 5 of Section 12 of the Act. Proviso 4 states that those holding posts in the Public Health or Administration in the former WBHS who do not exercise any option would be deemed to have exercised option for the new WBHS and their posting will be made in WBHS in phases. The 5th proviso, however, states that such persons would be deemed to have exercised option for the Public Health-cum-Administration Unit of the new WBHS. This is only an apparent contradiction since the legislative intent is clear, namely that the persons holding posts in the former Public Health or Administration should be posted to the new Public Health-cum-Administration Unit which is an integral part of the WBHS. While the 4th proviso generally states that they will be posted in the new WBHS, the 5th proviso specifies the part of the Service to which they will be posted. However, it must be stated that in view of the 5th proviso, the 4th proviso is redundant and has survived only as a piece of careless drafting.

14. The sixteenth contention is that u/s 14(2A), the doctors of the former WBHS who may not be required to exercise any option u/s 12, shall be appointed to the teaching posts in the basic level or to a post of lectures or to any other teaching posts, as the case may be in the WBMES. Such doctors are those who were holding non-teaching posts in the former WBHS. Section 14(2A), therefore, makes no sense in that the non-teacher doctors even though they do not possess the requisite qualifications, shall be appointed to the teaching posts in WBMES. One the admission of the respondent-State Government, there are about 6100 non-teaching doctors and there are only about 1400 teaching posts. What is further, the said provision goes counter to the very object of the Act, viz., to improve the standard of medical education in the State. The learned Counsel appearing for the State Government pointed out that in view of the provisions of the first proviso to Section 14(1), for the first five years the recruitment to the teaching posts in the basic level of the WBMES can only be made from among the persons having the requisite qualifications in the WBHS. In order to meet the exigencies of service, in case sufficient number of doctors are not available to man the posts in WBMES, the said provision in Section 14(2A) has been made and the State Government is vested with the power to meet the contingency by appointing non-teacher-doctors of the former WBHS to the posts in the WBMES. He, further, stated that keeping the said intention in mind, the word “shall” in Section 14(2A) has to be read down to mean “may”. In this connection, he pointed out that the High Court has also construed the word “shall” to mean “may”, taking into account the intention of the legislature in that behalf.

Keeping in view the object of the Act and the purpose for which the said provision has been made, the course adopted by the High Court appears to be the proper one. To construe it otherwise would not only defeat the object of the Act, but negate the entire scheme incorporated in it. Further, the intention of the legislature in enacting the said provision was obviously to enable the Government to meet the contingency where the personnel to man WBMES would not be available in the requisite number and hence, there was need to appoint members of the WBHS in the circumstances. It will have, therefore, to be held that Section 14(2A) has to be read to mean that the non-teaching doctors of the former WBHS “may” be appointed to teaching post in the WBMES. Thus read, there is no inconsistency between the said provision and the other provisions of the Act or the Rules made thereunder.

15. The seventeenth contention, viz., that the grant of right to Practise to 6100 non-teacher doctors belonging to the WBHS defeats the object of the Act to improve the health-care, suffers from a basic misunderstanding. As has been repeatedly explained earlier, no right to practise has been given to the non-teaching doctOrs. Further, not all the posts in the WBHS are practising posts. The privilege to practise privately which has been given to persons manning some posts, is temporary and is likely to be withdrawn at any time. If the State Government finds that the extension of the said privilege even to some posts affects the patient-care, the State Government is free to withdraw even the said limited privilege. There is also no substance in the contention that there was no evidence of the deterioration in the standards of teaching in medical institutes of the State, since in the All India Medical Entrance test conducted by the Medical Council of India, allegedly 25-30 per cent of the successful candidates during the last three years belonged to the State. Assuming the said figure to be correct, it would not by itself indicate that the standard of the medical education in the state has not deteriorated. On the other hand, the experience of the State Government of the temporary relaxation of the prohibition against private practice for 25 years from 1965 to 1990 showed that the teacher-doctors were neglecting both teaching and the attendance to the patients in the hospitals attached to the teaching institutes. The Medical Council of India also held the same view and ultimately passed a resolution in 1973 insisting that the teaching staff of all departments of a medical college should be whole-time and non-practising. The National Health Policy declared by the Government of India in 1983 also pointed to the desirability of prohibiting private practice to the Government medical personnel. The Standing Committee of the State Legislative Assembly on Health also in its report attributed the fall in the standard of medical education in the State, among other thing, to the fact that the medical teachers were devoting considerable part of their working time to their private practice. It is, therefore, incorrect to say that there was no evidence before the State Legislature of the deteriorating standards in the medical education in the State. Further, even it there was no evidence, the State Government was competent to lay down as one of the service conditions for its Medical Officers, that they would not have the right to practise privately. That being a matter of policy, strictly rests within the exclusive jurisdiction of the State Government.

16. The eighteenth contention has been already dealt with earlier. The members of the new WBHS cannot make a grievance that in the new dispensation, they have no scope for promotion as they will be stagnated only as Specialists. In the medical profession, it is difficult to conceive of a post higher than that of a Specialist. Since the new WBHS has only two grades, viz., the Medical Officer and the Specialist, the non-teaching doctors can be fitted either in one or the other according to their qualifications. The designations such as Surgeon, Assistant Surgeon, Sub-Assistant Surgeon, etc. which were in existence prior to 1958 were abolished in 1958 when a unified cadre of the Medical Officers were created. Since under the Act, two separate Services have been created, viz., WBHS and WBMES, no promotions could be given to the members of the WBHS in the WBMES. Whatever may be the case under the 1958 Rules which created the unified cadre both of the teaching and the non-teaching doctors and under which the promotion form one to the other was possible since the Act has bifurcated the Services, it is difficult to envisage as to what posts could have been created in the new WBHS equivalent to the teaching posts such as Basic Teacher, Lecturer, Assistant Professor, Reader, Associate Professor, Professor and Principal. One may venture and suggest a hierarchy in the WBHS, such as Medical Officer, Senior Medical Officer, Junior Specialist, Senior Specialist and so on. That is a matter which has to be left exclusively to the executive policy. Even so, it is difficult to understand how the equivalence of the posts between the WBMES and the WBHS could have thereby been achieved. There is, therefore, no merit in the contention that because the equivalent posts arc not created in the two Services, the Act or the scheme under it is bad in law.

17. The nineteenth contention is directed against the non-extension of the option to the non-leaching doctors of the former WBHS. It is contended that whereas those who held teaching posts in the former WBHS have been given option to join either the WBMES or the WBHS, those who held non-teaching posts have not been given such option. Hence the Act is discriminatory. In support of the very same contention, it is pointed out that even those were empanelled for being promoted to the teaching hierarchy were not given such option and they had to be content with the non-teaching posts in the new WBHS.

As has been emphasised earlier, the Act envisages the creation of an exclusive cadre of teaching posts and, therefore, has created a separate education service viz., WBMES. While constituting such Service, it was necessary to give option mainly to those who were then holding the teaching posts, since the main condition attached to the new teaching posts was that they would carry no right to private practice. There was no question of giving such a choice to those who did not hold teaching posts. Such doctors had not joined the education stream even when the teacher-doctors were given the privilege of practising. If they were serious about teaching, they would have joined it much earlier and no waited till the present Act was enacted. Even now, u/s 14(1), for a period of five years from the date of coming into force of the Act, there is a provision for recruiting members of the WBHS to the basic level teaching posts in the WBMES giving due weightage to their service in the WBHS. Clause (a) of the second proviso to the said section states that for a period of five years, recruitment to the teaching posts in the basic level in the WBMES shall be made from amongst the persons appointed to the WBHS who had rendered two years’ service in the WBHS in the rural areas. Clause (b) to the said proviso says that on the expiry of the said period of five years, recruitment to the posts in question in WBMES shall he made through the State Public Service Commission giving due weightage to persons who have rendered two years’ service in the rural areas. Similarly, the sixth proviso to Section 14(1) states that similar weightage for service in the rural areas, shall he given to the persons who apply for the posts of Lecturer and Assistant Professor in the WBMES. It must, further be kept in mind that promotions, transfers and affording options are the exigencies and the incidence of service. There is no vested right of an employee in them. The provisions of the Act or the Rules which bring about such change are not vitiated or rendered illegal on that account. Further, the mere empanelment for being appointed to the higher post does not vest the persons empanelled with a right to be posted to the higher post. Hence the grievance made that some of the non-teaching doctors who had been empanelled for being promoted to the teaching hierarchy were also not given the option to join WBMES and, therefore, the Act and the Rules are bad in law has no merit in it. There is no data on record to show that, as alleged, a large number of doctors appointed to the posts of the basic teachers in non-clinical discipline and who did not possess requisite eligibility qualifications viz., post-graduate degree in the relevant subject, have been provided with an option to join the WBMES.

18. There is also no merit in the twentieth contention either, viz., that seniority of the members of the WBMES has not been protected due to the introduction of the “Pay to Post” rule and by the abolition of “Pay to Person” rule which was prevalent in the former WBHS. The said contention is based on various misconceptions. In the first instance, the introduction of the rule of “Pay to Post” does not involve either the loss of seniority or the loss of pay for any person When the members of the former WBHS opt for the WBMES, they carry with them their seniority as well as their salary. If in the former WBHS, senior member failed to earn promotions, there is nothing wrong if the junior members of the service who were promoted to the higher posts, start getting higher pay in the new WBMES which pay goes with the higher posts to which the juniors stand promoted. It is difficult to understand as to how the higher posts in the former WBHS were carrying less salary than that of the lower posts. If it was on that account that the seniors, though having failed to find a promotional post, were still getting higher salary than their juniors promoted over them to the higher posts, there seems to be some thing radically wrong with the pay structure in the former WBHS. If the averments of the appellants are correct, it only means that in the WBMES, pay-scales have been rationalised as they ought to be. Secondly, the members of the WBMES would be governed by their rules which include “Pay to Post” and the members of WBHS would be governed by their separate rules which include the rule of “Pay to Person”. The two services arc different and. therefore, their service conditions are governed by different rules. Thirdly, as has been pointed out on behalf of the State Government, the seniority in the teaching stream or attainment of the senior post in the teaching stream depends on the dates of appointment on the teaching side. A doctor may have attained the qualification to enter the teaching stream by obtaining his M.D. or M.S. degree but he may not have chosen to join the teaching stream immediately whereas another doctor might have joined the leaching stream immediately after obtaining the eligibility qualification. In that case, the latter will be senior to the former on the teaching side and will attain higher post earlier than the former. Hence there is no substance in the said grievance.

19. The last contention is based upon the premise that is was necessary to constitute the new WBHS before the teacher-doctors of the old WBHS asked to exercise option either join the new WBMES or to hold the non-teaching posts in the WBHS which remained after the bifurcation of the teaching posts from the non-teaching posts. The contention is that the non Constitution of the new WBHS deprived the doctors from exercising their option effectively.

This contention ignores the fact that under the Act, the choice was to be exercised by the doctors who held teaching posts in the former WBHS. No choice was to be exercised by those who held non-teaching posts. The choice before the teacher-doctors was whether they would join the WBMES which was a non-practising service or would remain with the former WBHS in which there were some and not all posts with the privilege of private practice. The Act itself further made it clear that the two services, viz., the WBMES and the WBHS may be constituted on different dates. The Act had also incorporated in it all the important features of the new WBHS such as the Constitution of a separate Public health-cum-Administration as a separate Link, Government’s right to transfer the member of the WBHS to any post including the post in the Public Health-cum-Administration Unit which has all non-practising posts, the prohibition of transfer of a person appointed to the WBHS to the WBMES except u/s 14(1) and 14(2A), the existence of posts in the WBHS without the privilege of practising, the continuation of a person appointed in the cadre of the new WBHS on the same terms and conditions as were in force immediately before the coming into force of the Act etc. It is, therefore, difficult to under stand the grievance that in the absence of the Constitution of the new WBHS, those who had held teaching posts in the former WBHS had no effective opportunity to exercise their option.

The specific grievance made on account of the non Constitution of the new WBHS before the teacher-doctors were asked to exercise their option may now be dealt with –

(i) The grievance that a large number of senior doctors are compelled to sacrifice their seniority and pay scales is not borne out by the facts. In fact, both the salary and the seniority of the said doctors in the WBMES is protected. If the juniors were promoted to higher posts in the earlier service and if on that account, they are now holding posts higher than their seniors, the senior, doctors cannot make grievance on that account.

(ii) The grievance that the teacher-doctors who had not exercised their option for the WBMES are being posted in the junior posts in the WBHS, which posts they had held at the threshold of their service career is not correct as pointed out on behalf of the State Government. In the first instance, as has been stated in Rule 7(3), no Specialist shall be posted in any of the Health centers, rural hospitals or teaching hospitals mentioned in items (a), (b) and (f) of Schedule II of the said Rules. If they are posted to other institutions, viz., institutions mentioned in items (c), (d) and (e), no grievance can be made by them since the institutions mentioned in (c), (d) and (e) stand on a higher footing than the institutions mentioned in (a), (b) and (f). Secondly, even when the seniors are posted as Specialists to the institutions mentioned in hems (c), (d) and (e), they would not be posted to the same post to which they were posted at the threshold of their career but to the senior posts with their seniority and the salary being protected.

(iii) The third grievance is in respect of some particular doctors who had not exercised their option because the promotions due to special selection grade and higher academic grades such as Professor, prior to coming into force of the Act, were not given to them and they were waiting for a clarification from the Government in that behalf. It is difficult to understand this grievance. When the new Act came into force changing the whole pattern of service and creating a new service in the form of the WBMES, it was not open for the said doctors to ask for such clarification. As stated earlier, no employee can have a vested right in promotion, and if the old dispensation gives way to the new, it was all the more unwarranted on the part of those whose promotions were due under the old dispensation to expect that whatever the altered conditions under the new dispensation, they would be given promotions on the same terms and conditions as obtained under the old dispensation.

(iv) Since, as stated earlier, the Constitution of the new WBHS did not bar the option to be exercised by the teacher-doctors of the former WBHS, it is not understood as to how those who exercised as well as those who did not exercise the option can be said to have been denied the opportunity to exercise the option.

(v) There is nothing either in the Act or the Rules which disturbs the seniority and the status of the members of the former WBHS. Hence this grievance has no meaning.

(vi) The grievance that the former teacher-doctors who exercised their option for the new WBHS have been posted in non-teaching hospitals where they are place to work under the control of their junior officers appointed as Superintendents of the said hospitals has been specifically denied by the State Government. It has been pointed out that each and every doctors who has been transferred to various non-teaching hospitals is holding independent charge of his respective job and the seniority, pay, allowances and other benefits including his power to admit, operate and allocate beds to the patients under his control is fully protected.

(vii) The grievance that the hierarchy is created for public Health-cum-Administration Unit to protect the seniority and status of those who earlier worked in the Public Health and Administration has already been dealt with earlier. No such hierarchy is created for the other members of the WBHS. The Public Health-cum-Administration Unit is a separate unit, the hierarchy in which needs no change since the earlier Public Health-cum-Administration stood transferred as a Unit to the new WBHS. It has remained as it is. This was not with the deliberate intention of protecting the hierarchy of the posts in the said Unit. It is an incidental consequence of the creation of the new services. There is, therefore, no discrimination. The posts in the said Unit had since 1958 all along been separate from the rest of the posts in the WBHS.

(viii) This grievance has been dealt with earlier. The former WBHS was a unified service whereas the new WBHS is independent of the education service. Hence, the same ladder of promotions and promotional opportunities cannot be expected in the new WBHS. As stated earlier, the new WBHS has only two posts, viz., Medical Officer and Specialist.

(ix) There are no details given of the grievance made that the members of the former Health Service are being sought to be transferred and appointed either to the feeder posts or non-existent posts under threats and humiliation. It is not, therefore, necessary to deal with this allegation. In any case, such instances, if any have to bearing on the vires of the Act arid the Rules.

(x) The tenth grievance is in respect of particular persons which can be looked into by the State Government provided the said persons have joined the posts.

(xi) This Grievance has not been replied to on behalf of the State Government. If is true, it is against the provisions of the Act. The appellants have not stated the result of the legal redress they had sought in the matter. If the grievance is not yet redressed the State Government should rectify the same immediately by rescinding the notification in question. The concerned doctors should be given lime of at least two weeks from the rescission of the notification to exercise their option .

(xii) The last grievance consists of two parts. The first part relates to the alleged appointment in the cadre of WBMES other than through the Public Service Commission. As has been pointed out earlier, Clause (a) of the second proviso to Section 14(1) requires the State Government, for a period of five years, to recruit to the basic level teaching posts in the WBMES, persons appointed to the WBHS who have rendered two years’ service in the rural areas. There is no data before us which will show that the appointments in question fall outside the purview of the said provision. It is, however, difficult to understand as to how such a grievance can be made in the present appeals which seek to challenge the vires of the Act and the Rules.

As regards the second part of the grievance, viz., the Specialist doctors of the WBHS being transferred to districts or sub-divisional hospitals and health centers which do not have the required infrastructure to utilise their expertise, the learned Counsel for the State Government has assured us that such cases if any would be reviewed by the State Government provided the persons concerned first join the posts and make specific representations. However, if they are transferred to such institutions, with a view to organise the infrastructure for the requisite specialist service proposed to be made available at those institutions, the persons concerned cannot make any grievance in that behalf. In fact, they are the proper persons to be posted to such institutions for the purpose.

S. Mohan, J.

20. Though I am in entire agreement with my Learned Brother Savvant, J. I wish to add the following:

21. My learned Brother has dealt with the facts and the circumstances leading to these appeals. So it is unnecessary to trace the same. The matter may be considered with reference to the following:

(i) The scope of the Act and the Rules;

(ii) Rules-whether ultra vires ?

(iii) Whether there is a fundamental right to practise ?

(iv) Orders of transfer – whether actuated by mala fide ?

(i) The scope of the Act and the Rules.

22. Though a synopsis has been set out in the beginning of the judgment of my learned Brother it is necessary to trace the full background leading to the impugned Act namely the West Bengal Health Service Act, 1990 (West Bengal Act VII of 1990) and the rules made thereunder.

23. In the State of West Bengal in 1958, a unified cadre of government doctors known as the West Bengal Health Service was constituted. The doctors who were the members of this service fell broadly into three categories, namely:

(i) Doctor engaged primarily in teaching along with duties of the hospital to which teaching institutions were attached.

(ii) Doctors engaged on the curative side attached to various hospitals and medical centers throughout the State but were not engaged in teaching and;

(iii) Doctors primarily involved in administrative work.

24. In the said unified service as originally constituted, private practice by government doctors was totally prohibited.

25. In the year 1965, a Government Order was passed relaxing the said Rules prohibiting private practice and granting permission to engage in private practice in some of the posts in the West Bengal Health Service subject to certain conditions. The doctors who opted for private practice had to forego certain pecuniary benefits such as non-practicing allowance. They were required to submit an option in the prescribed form. That contained declaration to the following effect:

(i) They had no claim or right to private practice;

(ii) They were liable to be transferred to any post where private practice was no permissible.

26. The permission to engage in private practice was given purely on temporary basis under an experimental measure. It was made clear that the position would be reviewed in future in the light of experience gained.

27. Towards the end of 1989, having studied this system for nearly 25 years, the Government of the West Bengal felt that the existing system was not satisfactory. It had found, in particular that, the quality of medical education in the State had deteriorated considerably. One of the reasons for this was that the doctors engaged in teaching were paying more attention to private practice with the result, they were found to be largely absent from the lecture rooms. They were neglecting their duties towards the hospitals attached to the teaching institutions. There was a lack of devotion to the teaching side. This brought about the lowering of the standard of medical education in the State.

28. In view of the deteriorating standard of medical education in the State and in order to improve its quality the Government of West Bengal decided, as a matter of policy, to bifurcate the existing unified service and to create a separate service known as West Bengal Medical Education Service for doctors engaged in teaching. They would be known as non-practising doctOrs. This policy of the State Government was formulated in the light of the views of the Medical Council of India. In its resolution adopted in 1973, it stated that “teaching staff of all departments of a medical college shall be whole-time and non-practising”. The National Health Policy was published in the year 1983 by the Government of India. In the National Policy Studies published in the year 1990 by the Government of India, it is stated:

It is desirable for the States to take steps to phase out the system of private practice by medical personnel in government service, providing at the same time for payment of appropriate compensatory non-practising allowance. The States would require to carefully review the existing situation, with special reference to the availability and dispersal of private practitioners, and take timely decisions in regard to this vital issue.

29. A Standing Committee on Health of West Bengal Legislative Assembly also submitted a report to the same effect. While analysing the cause of the falling standard of medical education in West Bengal, it stated that medical teachers were devoting a considerable part of their working time in private practice. According to the Committee, amongst the important factors responsible for this situation were that “the teachers are busy for their commercial benefit using Medical Colleges as their publicity platform and socio-political power”. “Consequently the students are keen to get the degree by any means without being keen to learn their subjects and social orientation in their training”. It also stated: “it observed that West Bengal has the best organisation for Health, so as far its infrastructure is concerned. But it failed to maximise the benefit of such huge infrastructure. One of the reasons of this failure, the Committee surmised, lay in the respective system of medical education”. The report stated “it was noted that most of the teachers and principals agreed that the standard of medical education has uniformly degenerated in all the medical institutes”. The Committee took evidences of the Presidents and Secretaries of Students’s Unions of all the Medical Colleges. All of them agreed about the pitiable situation of medical education. Their main complaint was that teachers were mostly busy in their private practice and least concerned about the training of students. The statements of the Director of Medical Education and the Vice-Chancellor, the Dean, the President of Medical Association and the Principals corroborate that there is a need for overall changes in the system of medical education. The report noted “that the medical education in our State is not only in disarray but in distress.” The Committee made several recommendations to remedy this state of affairs, amongst which were:

(a) Effective implementation of separate teaching cadre should be done immediately and proper infrastructure and superstructure be created for its function.

(b) Teaching cadre must be made non-practising. No medical personnel with practising facilities will be allowed to be attached in a medical college

30. On the basis of the policy decision of the Government, an Ordinance was promulgated known as West Bengal Health Service Ordinance, 1990. The said Ordinance was thereafter replaced by 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.

31. 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.

32. 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.

33. 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.

34. Section 2 is the definition Section.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. By a Notification dated 25.5.1990, West Bengal Medical Education Service Cadre and Age of Retirement Rules 1990 were framed.

50. On 13.5.1990, the West Bengal Medical Education Service Pay and Allowance Rules 1990 came to be framed.

51. 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.

52. 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.

53. Rule 7 talks of the grades in West Bengal Health Service:

(i) Medical Officers;

(ii) Specialists.

The qualifications for declaration as a Specialist are:

(a) a post-graduate degree, and

(b) at least 5 years as Medical Officer

or

(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.

55. 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.

56. 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.

57. 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.

58. The above is the analysis of the Act and the Rules. Mr. Soli J. Sorabjee argued that without the Constitution of the West Bengal Health Service, the option available u/s 12 would be illusory but as on now the position has changed completely since on 3rd of March, 1993 the State Government constituted the West Bengal Health Service.

(ii) Rules: whether ultra vires?

Rule 8:

The first attack by the appellants is that Rule 8 of the Health Service Rules is ultra vires of Section 2. Rule 8 prohibits private practice altogether where a doctor is posted to the health centers, rural hospitals and teaching hospitals mentioned in Items a, b and f of Schedule II. This is stated to be in conflict with Section 6(2) of the Act. A careful reading of Section 6 clearly discloses that it does not confer a right to practise upon transfer from a teaching institution or a hospital. Rule 8 when read in conjunction with Rule 9 would disclose the differentiation between two categories of posts. Under Rule 8 the bar of private practice is underscored while under Rule 9 permission to private practice is envisaged. If the entire purport of the Act and the Rules is to reduce private practice to a privilege how could such a right be insisted upon by the exercise of option to join the Health Service. There is a point in barring private practice in the case of such of those doctors posted in primary health centers; rural hospitals. One can even take judicial notice of the fact that the medical facilities in rural areas are scarcely available. As citizens of free country the rural population of India would legitimately expect the Government to give reasonable medical facilities. Such of those in villages and rural areas could only turn to these primary health centers or rural hospitals. The heavy dependence of the rural population on these medical centers should require the doctor to engage his full attention. If private practice is allowed the unfortunate rural folks would be deprived of even the small facility of primary health centers or rural hospital.

59. Category F of Schedule II stands apart. They are educational institutions where medical education will have to flourish on proper lines. If private practice for those professors or teachers is allowed the neglect of such education would only lead to deteriorating standard.

60. At this stage, duties of the teachers may be emphasised.

Every teacher-doctor must endeavour to make his institution a brighter institution – a fragment of Heaven on earth, an El dorado of peace, joy and wisdom. After all, an institution is what its teachers and professors make it even as a nation is what its patriots make it, a religion is what its prophets make it and a home is what its women make it. Without a band of devoted men of medicine who are inspired by a holy zeal, an institution with the paraphernalia of modem conveniences will be like without the spark of like; without soul. When there are all the advantages, it is no virtue if tolerable work alone is turned out. But it is only when there are handicaps mocking at enterprise should the human spirit triumph and establish that the will is an all-conquering force. The greatest men of medicine of the past and the present who have profoundly influenced men’s minds have been indomitable spirits who have struggled against tremendous odds.

Inner strength which is not cowed down by adversities, is what is required. If that noble quality is to be nurtured one must have tremendous faith in one’s mission. To practise medicine is not a craft but a calling; not a profession but a vocation.

Sincerity of purpose and earnestness of endeavour are the two wings that will bear one aloft to the tower of success. Given these virtues, other qualifications will follow of their own accord.

It is a cold and irresistible fact of logic that doctors exist for the institution and that the institution does not exist for their convenience and profit. It sustains and nourishes them, and it is up to them to cling to it with steadfast loyalty and to toil to promote its highest interests.

“From good to better, daily self-surpassed,” has to be our motto. The nature of the profession is such that it definitely demands a spirit of service and sacrifice. After all what lends dignity to any person is his attitude to work and no the emoluments of his office.

“Honour and shame from no condition rise Act well thy part : there all the honour lies”

The duty of a true teacher-doctor is to instruct, inspire and illumine.

Rules 9 and 10:

To such of those cases to which Rule 9 applies, private practice is permitted on exercise of option. Those are categories of cases falling under Items c, d and e of Schedule II. These non-teaching doctors, who have the privilege of private practice, do so in view of the undertakings and declarations given by them while exercising the option that he shall not acquire any claim for appointment only to practising post in future and that he shall continue to be employed by transfer to any post in the cadre, practising or non-practising, in the exigencies of public service. Therefore, having given an undertaking and being conscious of the implication, the doctor cannot be made to wriggle out and insist upon private practice as of right. It is important to note, in this connection, as to what was the position prior to the Act which is preserved by the saving provision of Section 19. Prior to the Act the former West Bengal Health Service constituted a unified service, under the terms and conditions of the service there was no right to private practice. The Memorandum bearing No. 1Estt/2007/2S-120/64 dated 1st April, 1965 issued by the Government of West Bengal also emphasises this aspect of the matter. In that, no right to private practice as such was conferred.

61. As regards the arguments that upon transfer the status of the doctor is not protected and, therefore, the Act and Rule 7 are arbitrary, unreasonable, there is no substance. Where a teacher-doctor who had not opted to join West Bengal Medical Education Service is transferred to West Bengal Health Service, there is no loss of seniority at all, nor even, is there any loss of pay. It may be, he is posted to some place or institution falling within Items (c) (d) or (e) of Schedule II. It may be even outside Calcutta. He might have even worked earlier in that Station. But important point is that he is not posted to the same post which he occupied earlier but he is transferred to a senior post carrying a higher status with full protection of seniority and emoluments. Besides, in the West Bengal Health Service there is no hierarchy in contradistinction to the Education Service or the Public Health Administrative Unit of West Bengal Health Service. If really, a doctor wanted to remain in the hierarchy he should have chosen to remain in the Education Service. Therefore, in the absence of hierarchy there cannot be loss of status. Then again, the Health Service talks of Medical Officer and a specialist. Therefore, only to either of these categories a person joining West Bengal Health Service could be posted.

62. In view of the above, the two services could be created at different times. Therefore, as a matter of policy, the act seeks to bifurcate the existing health service into two separate services:

(i) dealing with doctors engaged in teaching in the 13 teaching institutions in the State;

(ii) doctors engaged on the curative side and with public health and administration who were not concerned with teaching.

63. Thus, it is obvious that the teaching doctors belonging to West Bengal Medical Education Service would be debarred from private practice.

64. Section 4(3) of the Act is attacked as unconstitutional as it confers an absolute power to the Government to transfer the doctors after having exercised their option for the West Bengal Health Service. From that service they could be transferred to Public Health-cum-Administration Unit which Unit is non-practising. In the absence of any guidelines the exercise of statutory power would be arbitrary in nature. The short answer to this attack is, as stated above, the Public Health-cum-Administration Unit is a part of the Health Service. If transfers are warranted in the exigencies of service and in public interest it cannot be stated that the power conferred u/s 4(3) of the Act is arbitrary. Then again, if private practice is only a privilege and not a right, one can have hardly any complaint.

65. Further contention of Mr. Kapil Sibal, learned Counsel, that u/s 18 the Act is not applied to some teachers like ex-Management Cadre, Emeritus Professor and Dental Surgeons and, therefore, it is discriminatory. It is not so. None of the aforesaid categories of teachers belong to former West Bengal Health Service. The service conditions of a few teacher-doctors of Ex-Management Cadre would obviously be governed by the terms of taking over of the Management. Dental Surgeons belong to a separate service known as the West Bengal Dental Service. Their service condition is guided by the terms and conditions of the said service. It is well-known that Emeritus Professors or eminent teacher-doctors who have retired from the Health Service their services are utilized in view of their eminence and the being paid an honouraruim. Therefore, there is no discrimination at all.

66. The argument of Mr. Nariman, learned Counsel that the combined effect of Sections 6, 9, 10 and 11 is to protect private practice which is taken away under Rules 9 and 10. These Sections, in our considered view, provide for total prohibition of private practice in the 13 institutions. Even prior to the impugned Act private practice was allowed to holders of some posts purely on and experimental measure; nor again, was any right to continue in a post which would enable a doctor to have private practice. In the exigencies of service he could always be transferred to a post where private practice is impermissible.

67. With regard to Section 12 it has already been noted as to what exactly is the scope of 4th and the 5th provisos.

68. The 4th proviso deals with persons connected with Public Health and Administration. In the former West Bengal Service those who had not exercised their option would be accommodated in the Health Service in phases while the 5th proviso deals with those holding teaching posts and administrative posts in the former West Bengal Health Service. In the absence of exercise of option they are deemed to belong to the West Bengal Health Service or public Health-cum-Administration Unit. Therefore, to different categories of persons are dealt with. The situation is brought about by non-exercise of the option

69. Section 14(2A) of the Act uses the word “shall”, which no doubt, cannot be construed as mandatory but it should be directory as held by the Calcutta High Court in the impugned Judgment.

70. The argument of Mr. Ganguli is in the unified cadre the system was “pay to the post” while in the newly constituted service a teacher-doctor junior in service will get higher pay. This argument is unacceptable. The post and the designation of the teacher under 1958 Rules was dependent on his entry in the teaching service. The late entry may be due to many reasons:

1. Because of attaining eligibility subsequently.

2. Not to enter the teaching service early.

3. Not being found fit for the Leaching service.

71. As a result, one who had joined earlier in the “Teaching stream” will attain the higher designation earlier than that of a person who had joined at a later stage. By virtue of “pay to the post” as now provided in the new service he is entitled to the scale of his designation. There is no anomaly or discrepancy or unreasonableness as contended.

72. The prescription of different ages of retirement viz. 58 years in WBHS and 60 years for WBMES and a possibility of extension upto 65 years, do not constitute any discrimination, since they belong to different services.

73. In the final analysis, it is difficult to uphold the challenge to the provisions of the Act and the Rules. These provisions merely try to restore the old position of banning private practice with reference to holders of posts in the 13 teaching institutions. Whether there should be a total ban or not is a matter of State Policy with which the Court has least concern. The authorities are uniform in this regard. We would only refer to Reserve Bank of India Vs. N.C. Paliwal and Others, . At page 393 it is observed thus:

It is entirely a matter for the State to decide whether to have several to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.

(Emphasis supplied)

(ii) Whether there is a fundamental right to practise?

74. No Government doctor can claim right to private practice. Even otherwise, it is a reasonable restriction in the interest of public as held by the High Court of Allahabad in Dr. Y.P. Singh and Others, etc. Vs. State of U.P. and Others, . At pages 449-59 it is stated thus:

It was submitted on behalf of the petitioners that the field of public health is being served by these petitioners and if they are restrained from doing so, public will be deprived of their services which would not therefore, be in public interest. I do not find any merits in this contention. The petitioners do not give (service) after office hours without charging fees. Their fees cannot be paid by hungry, indigent persons. They are approached by those who can afford to pay them. So, the majority of these deprived persons are not going to get any benefit from them. They have to depend on the hospital and dispensaries set up by the Government for public benefit. The right of the petitioners to practise the profession of medicine cannot be said to have been violated by the impugned rules. The rules do not prevent a graduate in medicine and surgery from practising his profession. It in effect only provides that if such a graduate has become a Government doctor and draws salary from public exchequer he shall not be entitled to do private practice for pecuniary consideration in cash or kind while remaining in Government service. The restriction imposed by the impugned rules merely prescribed conditions which must be observed if the petitioners want to remain in Government service. No medical graduate is entitled to practise as of right unless his name is entered in the rolls of doctors maintained under the Indian Medical Council Act. He can practise if under the relevant existing statute he is registered and granted a certificate to practise as such. He is thereafter entitled to apply for a Government job if there is a vacancy and if he gets that job, he has to abide by the terms and conditions thereof and the rules and regulations governing the employment under the State. For the maintenance of discipline and for social good the rule may prohibit him from private practice for pecuniary consideration in cash or king. It may be that the staff in the Government hospitals and dispensaries may not be sufficient to attend to all the patients who visit the same in large number but that would not mean that those poor patients who remain unattended should be driven to private clinics of these Government doctors to be attended to only on payment of fabulous fees. A rule prohibit in exploitation of the misery of the people by the privileged doctors is in the preponderant interest of the society. It has come in counter-affidavit that teachers of the Medical Colleges have been paying their attention to their private patients which has obstructed the discharged of their duties in teaching Medical students as well as in attending to the patients in the hospitals. To say that if the petitioners would not be allowed to do private practice, they would lose their incentive is to speak against their competence and efficiency as teachers and Government doctOrs. The time which they devote in their private clinics can better be utilised for making researches and further studies in medical science. The reports of the aforesaid Committees point out that private practice has been responsible for neglect of essential parts of the duties of these Government doctors and teachers. It has been stated in para 14 of the counter affidavit that the State Government has been cognizant of the fact that private practice by the teachers in the Medical Colleges distracts in the Medical Colleges distracts their attention from the task assigned to them, their time and energy is devoted in attending to their patients at private side and the patients who can afford to pay on the private side receive greater attention from them than those who do not possess such means and resources. It was also said that hospital equipment, medicines, laboratory test facilities and the like are diverted and utilised for the treatment and care of the patients in whom the teachers of the Medical Colleges are interested in private side.

The fact that the petitioners’ private earnings would be adversely affected in no valid ground to hold that the restriction is not in public interest or is unreasonable. These petitioners are in the employment of Government and they cannot claim as of right to earn any additional income by resorting to private practice. The various reports referred to hereinabove submitted to the government furnish sufficient evidence to come to the conclusion that private practice by the medical practitioners employed in State service would not be beneficial to the interest of general public and to the cause of medical education. It seems that the situation had become so appalling that even the Medical Council of India in its resolution of 24th March, 1976 had to recommend to the State Governments that all posts of teachers of Medical Colleges should be declared full-time and non-practising in order to ensure high standard of medical education and research. The Medical Council consist of experts who lay down curriculum for medical education and provide guidance to teachers and medical practitioners in the matter of medical education. There was no reason for the Government to ignore the aforesaid recommendation of the Medical Council.

75. While agreeing to the above dictum it may only be added that the Health Service of the Government deals with very sensitive issues, the services are concerned with the well-being of the poorer sections of the community. The State Government has endeavoured its best to implement the National Health Policy and the decision of the Medical Council of India. It has also given shape in the form of this Act to the recommendations of the Standing Committee on Health of the West Bengal Assembly.

76. The impugned orders of transfer are not in any way actuated by mala fides but have been passed to effectuate the provisions of the Act the only policy being to provide proper medical facilities as stated above.

77. In view of the above discussion, all the civil appeals will stand dismissed.

78. In the view taken by us, we dismiss all the appeals with costs.

79. We further direct that if there are any proceedings pending in any court including the High Court in which the Provisions of the West Bengal State Health Service Act, 1990 or the provisions of the West Bengal Health Service Rules, 1993 are under challenge, they shall all stand dismissed.

80. The appellants in Civil Appeals Nos. 3394-97 arising out of SLP Nos. 4176, 4192. 4184 and 4185 of 1992 are granted time upto the 10th of August 1993, to exercise their option join the WBMES.


(1993) AIR(SCW) 2772 : (1993) AIR(SC) 2335 : (1993) 25 ATC 326 : (1993) 4 JT 308 : (1993) LIC 2035 : (1994) 1 LLJ 94 : (1993) 4 RSJ 172 : (1993) 3 SCALE 260 : (1993) 3 SCC 723 : (1993) SCC(L&S) 1004 : (1993) Sup1 SCR 339 : (1993) 4 SCT 155 : (1993) 4 SLR 592


Counsel for Appearing Parties

Kapil Sibal, G. Ramaswamy, A.K. Sen, A.K. Ganguly and Gautam Mitra, for the Appellant; Somnath Chatterjee, Dipanker Ghosh, Samarjit Gupta, N.R. Choudhary and Sitesh Sinha, for the Respondent

The Actuaries Act, 2006

Keywords:-Profession

Parliament

The Actuaries Act, 2006

(35 OF 2006)

[27th August, 2006]An Act to provide for regulating and developing the profession of Actuaries and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:—

Preliminary

CHAPTER I

1. Short title, extent and commencement .—(1) This Act may be called the Actuaries Act, 2006.(2) It extends to the whole of India.(3) It shall come into force on such [date] as the Central Government may, by notification in the Official Gazette, appoint:Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.

2. Definitions . —(1) In this Act, unless the context otherwise requires,—

(a) “Actuary” means Click

a person skilled in determining the present effects of future contingent events or in finance modelling and risk analysis in different areas of insurance, or calculating the value of life interests and insurance risks, or designing and pricing of policies, working out the benefits, recommending rates relating to insurance business, annuities, insurance and pension rates on the basis of empirically based tables and includes a statistician engaged in such technology, taxation, employees’ benefits and such other risk management and investments and who is a fellow Member of the Institute; and the expression “Actuarial science” shall be construed accordingly

(b) “Actuarial Society” means the Actuarial Society of India registered under the Societies Registration Act, 1860 (21 of 1860) and the Bombay Public Trusts Act, 1950 (Bombay Act No. XXXIX of 1950);

(c) “appointed day” means the date on which the Institute is constituted under sub-section (1) of section 3;

(d) “Authority” means the Appellate Authority referred to in section 32;

(e) “Board” means the Quality Review Board constituted under sub-section (1) of section 43;

(f) “Council” means the Council of the Institute as referred to in section 12;

(g) “fellow” means a fellow Member of the Institute;

(h) “Institute” means the Institute of Actuaries of India constituted under section 3;

(i) “Member” means an individual whose name appears in the register of Members maintained by the Institute;

(j) “prescribed” means prescribed by rules made under this Act;

(k) “President” means President of the Council;

(l) “register” means the register of Members maintained by the Institute under this Act;

(m) “specified” means specified by regulations made under this Act;

(n) “Tribunal” means a Tribunal established under sub-section (1) of section 16;

(o) “Vice-President” means Vice-President of the Council;

(p) “year” means the period commencing on the 1st day of April of any year and ending on the 31st day of March of the succeeding year.

(2) Save as otherwise provided in this Act, a Member of the Institute shall be deemed “to be in practice” when individually or in partnership with Actuaries in practice as a Member or an employee of a company, he, whether or not in consideration or remuneration received or to be received,—

(i) engages himself in Actuarial profession; or

(ii) offers to perform or performs services involving the application of Actuarial techniques in the fields of insurance, pension, investment, finance and management; or

(iii) renders such other services as, in the opinion of the Council, are or may be rendered by an Actuary in practice; or

(iv) is in employment of a person engaged in one or more of the activities mentioned in clauses (i), (ii) and (iii) above, and the words “to be in practice” with their grammatical variations and cognate expressions shall be construed accordingly.

Explanation.—For the purposes of this sub-section, the expression “company” includes a public financial institution as defined in section 4-A of the Companies Act, 1956 (1 of 1956).

CHAPTER II

Institute Of Actuaries Of India

3. Incorporation of Institute .—(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, all persons whose names are entered in the register of the Actuarial Society at the commencement of this Act and all persons who may thereafter have their names entered in the register to be maintained under this Act, so long as they continue to have their names borne on the register, are hereby constituted a body corporate by the name of the Institute of Actuaries of India and all such persons shall be known as Members of the Institute.

(2) The Institute shall have perpetual succession and a common seal and shall have power to acquire, hold and dispose of property, both movable and immovable, and shall by its name sue or be sued.

(3) The head office of the Institute shall be situated at such place as may be decided by the Central Government.

4. Transfer of assets, liabilities, etc., of Actuarial Society .—On the appointed day,—

(a) all the assets and liabilities of the Actuarial Society shall stand transferred to, and vested in, the Institute.

Explanation .—The assets of the Actuarial Society shall be deemed to include all rights and powers and properties, whether movable or immovable, including, in particular, cash balances, deposits and all other interests and rights in, or arising out of, such properties as may be in the possession of the said Society and all books of account and other documents relating to the same; and liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind;

(b) without prejudice to the provisions of clause (a), all debts, obligations and liabilities incurred, all contracts entered into all matters and things engaged to be done by, with or for the Actuarial Society immediately before that day, for or in connection with the purpose of the said Society, shall be deemed to have been incurred, entered into or engaged to be done by, with or for, the Institute;

(c) all sums of money due to the Actuarial Society immediately before that day shall be deemed to be due to the Institute; and

(d) all suits and other legal proceedings instituted or which could have been instituted by or against the Actuarial Society immediately before that day may be continued or may be instituted by or against the Institute.

5. Objects of Institute .—The objects of the Institute shall be—

(a) to promote, uphold and develop the standards of professional education, training, knowledge, practice and conduct amongst Actuaries;

(b) to promote the status of the Actuarial profession;

(c) to regulate the practice by the Members of the profession of Actuary;

(d) to promote, in the public interest, knowledge and research in all matters relevant to Actuarial science and its application; and

(e) to do all such other things as may be incidental or conducive to the above objects or any of them.

6. Entry of names in register .—(1) Any of the following persons shall be entitled to have his name entered in the register, namely:—

(a) any person who immediately before the appointed day was an associate or a fellow (including an honorary fellow) of the Actuarial Society;

(b) any person who has passed the examination conducted by the Actuarial Society and has completed training either as specified by the said Society or as specified by the Council, except any such person who is not a permanent resident of India;

(c) any person who has passed such examination and completed such training, as may be specified for Membership of the Institute;

(d) any person who has passed such other examination and completed such other training outside India as is specified as being equivalent to the examination and training specified under this Act for Membership of the Institute:

Provided that in the case of any person belonging to any of the classes mentioned in this sub-section who is not permanently residing in India, the Central Government or the Council may impose such further conditions as it may deem necessary or expedient in the public interest.(2) Every person mentioned in clause (a) of sub-section (1) may have his name entered in the register without the payment of any entrance fee.(3) Every person belonging to any of the classes mentioned in clauses (b), (c) and (d) of sub-section (1) shall have his name entered in the register on an application being made and granted in the specified manner and on payment of such fees, as may be specified.(4) The Council shall take such steps as may be necessary for the purpose of having the names of all persons belonging to the class mentioned in clause (a) of sub-section (1) entered in the register before the appointed day.(5) Notwithstanding anything contained in this section, the Council may confer on any person honorary fellow Membership, if the Council is of the opinion that such person has made a significant contribution to the profession of Actuary and thereupon the Council shall enter the name of such person in the register but such person shall not have any voting rights in any election or meetings of the Institute and shall not also be required to pay any fee to the Institute.

7. Associates and fellows .—(1) The Members of the Institute shall be divided into two classes designated respectively as associates and fellows.(2) Any person other than a person to whom the provisions of sub-section (3) apply, shall, on his name being entered in the register, be deemed to have become an associate and as long as his name remains so entered, shall be entitled to use the letters “AIAI” after his name to indicate that he is an associate.(3) Any person who was a fellow of the Actuarial Society and who is entitled to have his name entered in the register under clause (a) of sub-section (1) of section 6 shall be entered in the register as a fellow.(4) Any person whose name is entered in the register as fellow shall, so long as his name remains so entered, be entitled to use the letters “FIAI” after his name to indicate that he is a fellow.

8. Honorary, affiliate and student Members .—(1) The Council may choose, in such manner as may be specified, any person of eminence in matters relating to and of interest to the profession of Actuary as an honorary Member of the Institute provided that he is not practicing as an Actuary.(2) Any person, who is a fellow Member, or is a holder of Membership considered equivalent to the fellow Membership of the Institute, of any other institution similar to the Institute, whether within or outside India, may be admitted as an affiliate Member for such period, and on such terms and conditions as may be specified.(3) Any person who enrolls himself for examination of the Institute, and possesses such academic qualifications as may be specified, may be admitted as a student Member of the Institute on such terms and conditions as may be specified.(4) An honorary Member or an affiliate Member or a student Member shall have no right to vote on any matter or resolution in any meeting of the Institute.

9. Certificate of practice .—(1) No Member of the Institute shall be entitled to practice, unless he fulfils the qualifications as may to specified and obtains from the Council a certificate of practice.(2) A Member who desires to be entitled to practice shall make an application in such form and pay such annual fee for certificate of practice as may be specified and such fee shall be payable on or before the first day of April in each year.(3) The certificate of practice obtained under sub-section (1) may be cancelled by the Council under such circumstances as may be specified.

10. Members to be known as Actuaries .—Every Member of the Institute in practice shall, and any other Member may, use the designation of an Actuary and no Member using such designation shall use any other description whether in addition thereto or in substitution therefor:Provided that nothing contained in this section shall be deemed to prohibit any such Member from adding any other description or letters to his name, if entitled thereto, to indicate Membership of such other Institute, whether in India or elsewhere, as may be recognised in this behalf by the Council, or any other qualification that he may possess, or to prohibit a firm, all the partners of which are Members of the Institute and in practice, from being known by its firm name as Actuaries.

11. Disqualifications .—Notwithstanding anything contained in section 6, a person shall not be entitled to have his name entered in, or borne on, the register if he—

(a) has not attained the age of twenty-one years at the time of his application for the entry of his name in the register; or

(b) is of unsound mind and stands so adjudged by a competent Court; or

(c) is an undischarged insolvent; or

(d) being a discharged insolvent, has not obtained from the Court a certificate stating that his insolvency was caused by misfortune and without any misconduct on his part; or

(e) has been convicted by a competent Court whether within or outside India, of an offence involving moral turpitude and punishable with imprisonment or of an offence, not of a technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disqualification; or

(f) has been removed from the Membership of the Institute on being found on inquiry to have been guilty of a professional or other misconduct:

Provided that a person who has been removed from the Membership for a specified period shall not be entitled to have his name entered in the register until the expiry of such period.

12. Composition of Council of Institute .—(1) There shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it by or under this Act.(2) The Council shall be composed of the following persons, namely:—

(a) a minimum of nine and not more than twelve persons from amongst fellow Members to be elected by the fellow and the associate Members of the Institute in such manner as may be prescribed:

Provided that a fellow of the Institute, who has been found guilty of any professional or other misconduct and whose name is removed from the Register or has been awarded penalty of fine, shall not be eligible to contest election,—

(i) in case of misconduct falling under the Schedule of this Act except Part IV(B), for a period of three years; or

(ii) in case of misconduct falling under Part IV(B) of the Schedule of this Act, for a period of six years, after the completion of the period of removal of name of the fellow from the Register or the payment of fine is made, as the case may be; and

(b)(i) an officer not below the rank of Joint Secretary to the Government of India, to be nominated by the Central Government to represent the Ministry of Finance;

(ii) one person from the Insurance Regulatory and Development Authority constituted under the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999) nominated by the Central Government; and

(iii) not more than two persons having knowledge in the field of life insurance, general insurance, finance, economics, law, accountancy or any other discipline which in the opinion of the Central Government, would be useful to the Council, to be nominated in such manner as may be prescribed:

Provided that till such time as the Council is constituted under this Act, the Executive Committee of the Actuarial Society shall discharge all the functions and shall have all the powers of the Council.(3) No person holding a post under the Central Government or a State Government, as the case may be, shall be eligible for election to the Council under clause (a) of sub-section (2).(4) One-third of the Members of the Council referred to in clause (a) of sub-section (2) shall retire as soon as may be on the expiration of every second year by rotation but shall be eligible for re-election.(5) Any person nominated under clause (b) of sub-section (2) shall hold office for a period of six years from the date of his nomination unless he is removed earlier by the Central Government and shall be eligible for re-nomination:Provided that he shall be given an opportunity of being heard before such removal.

13. Annual general meetings .—The Council shall every year hold an annual general meeting of the Institute to elect its Members under clause (a) of sub-section (2) of section 12, or to discuss any matter which it deems fit, and not more than fifteen months shall elapse between the date of one annual general meeting of the Institute and that of the next:Provided that from the appointed day the Institute may hold its first annual general meeting within a period of not more than eighteen months and if such general meeting is held within that period, it shall not be necessary for the Institute to hold any general meeting in that year:Provided further that the Central Government may, for sufficient reasons, extend the time within which any general meeting shall be held.

14. Re-election to Council .—(1) Subject to the provisions of sub-section (2), a Member of the Council elected under clause (a) of sub-section (2) of section 12 shall be eligible for re-election but not for more than two consecutive terms.(2) A Member of the Council, who is or has been elected, as the President under sub-section (1) of section 17, shall not be eligible for election or nomination as a Member of the Council.

15. Settlement of disputes regarding election .—In case of any dispute regarding any election under clause (a) of sub-section (2) of section 12, the aggrieved person may make an application within thirty days from the date of the declaration of the result of the election to the Council which shall forward the same forthwith to the Central Government.

16. Establishment of Tribunal .—(1) On receipt of any application under section 15, the Central Government shall, by notification, establish a Tribunal consisting of a Presiding Officer and two other Members to decide such dispute and the decision of such Tribunal shall be final.(2) A person shall not be qualified for appointment,—

(a) as a Presiding Officer of the Tribunal unless he has been a Member of the Indian Legal Service and has held a post in Grade I of the service for at least three years;

(b) as a Member unless he has been a Member of the Council for at least one full term and who is not a sitting Member of the Council or who has not been a candidate in the election under dispute; and

(c) as a Member unless he holds the post of a Joint Secretary to the Government of India or any other post under the Central Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India.

(3) The terms and conditions of service of the Presiding Officer and Members of the Tribunal, their place of meetings, remuneration and allowances shall be such as may be prescribed.(4) The expenses of the Tribunal shall be borne by the Council.

17. President, Vice-President and Honorary Secretary .—(1) The Council shall, at its first meeting, elect three of its Members from amongst persons referred to in clause (a) of sub-section (2) of section 12, to be respectively the President, Vice-President and Honorary Secretary thereof, and as often as the office of the President, Vice-President and Honorary Secretary falls vacant, the Council shall choose one of the Member in the same manner:Provided that the Chairperson of the Council of the Actuarial Society shall continue to hold such office as President after the commencement of this Act, until such time as a President is elected under the provisions of this sub-section.(2) The President shall be the Chief Executive Officer of the Council.(3) The President, the Vice-President or the Honorary Secretary shall hold office for a period of two years from the date on which he is chosen provided that he continues to be a Member of the Council.(4) The President and the Vice-President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.(5) In the event of occurrence of any vacancy in the office of the President, the Vice-President shall act as the President until a new President is elected in accordance with the provisions of this section to fill such vacancy and enters upon his office.(6) When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President shall discharge his functions until the President resumes his duties.

18. Resignation from Membership and filling up of casual vacancies .—(1) Any Member of the Council may at any time resign his Membership by writing under his hand addressed to the President, and the seat of such Member shall become vacant when such resignation is accepted and notified by the Council.(2) A Member of the Council, other than a Member nominated under clause (b) of sub–section (2) of section 12 shall be deemed to have vacated his seat if he is declared by the Council to have been absent without sufficient reason from three consecutive meetings of the Council, or of any of the Committees constituted by the Council, and of which he is a Member or he has been found guilty of any professional or other misconduct and awarded penalty of fine or if his name is, for any cause, removed from the register under the provisions of sections 24 and 30.(3) A casual vacancy in the office of a Member of the Council shall be filled by fresh election or by nomination by the Central Government, as the case may be, and the person elected or nominated to fill the vacancy shall hold office only for the remainder of the term for which the Member in whose place he was elected or nominated would have held that office:Provided that no election shall be held to fill a casual vacancy occurring within one year prior to the date of the expiration of the term of such Member.(4) No act done by the Council shall be called in question on the ground merely of the existence of any vacancy in, or defect in the constitution of the Council.

19. Functions of Council .—(1) The duty of carrying out the functions under the provisions of this Act shall be vested in the Council.(2) In particular and without prejudice to the generality of the foregoing power, the functions of the Council shall include—

(a) the holding of examination of the candidates for enrolment and specifying fees therefor;

(b) the specifying of qualifications for entry in the register;

(c) the recognition of foreign qualifications and training for the purposes of enrolment;

(d) the granting of or refusal to grant the certificate of practice under this Act;

(e) the maintenance and publication of a register of persons qualified to practice as Actuaries;

(f) the levy and collection of fees from Members, students, examinees and other persons;

(g) the removal of names from the register and the restoration to the register of names which have been removed;

(h) the regulation and maintenance of the status and standard of professional qualifications of Members of the Institute;

(i) to issue guidelines for the observance of the Members, including the student Members;

(j) to receive gifts, grants, donations or benefactions from the Central or State Governments and to receive bequests, donations and transfer of movable or immovable properties from testators, donors or transferors, as the case may be;

(k) co-operating with educational or other institutions in any part of the world having objects wholly or partly similar to those of the Institute by exchange of Members and generally in such manner as may be conducive to achievement of their common objects;

(l) instituting and awarding fellowships, scholarships, prizes and medals;

(m) giving gifts, grants, donations or benefactions to other institutions or bodies having objects similar to those of the Institute;

(n) the carrying out, by granting financial assistance to persons other than Members of the Council, or in any other manner, of research in the Actuarial science;

(o) the maintenance of a library and publication of books, journals and periodicals relating to Actuarial science;

(p) the exercise of disciplinary powers conferred by this Act;

(q) establishing such regional Council or Councils as may be decided from time to time and fixing their headquarters; and

(r) doing all such things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Institute.

20. Staff, remuneration and allowances .—(1) For the efficient performance of its functions, the Council may,—

(a) appoint an Executive Director, a Treasurer and such other officers and employees as it deems necessary and fix their salaries, fees, allowances and other conditions of service; and

(b) fix the allowances of the President, the Vice-President, the Honorary Secretary and other Members of the Council and its Committees, in such manner as may be specified.

(2) The Executive Director of the Council shall be entitled to participate in the meetings of the Council but shall not be entitled to vote thereat.

21. Committees of Council .—(1) The Council may constitute such committees from amongst its Members, and co-opt therein persons who are not Members of the Institute, as it deems necessary for the purpose of carrying out the provisions of this Act:Provided that the number of co-opted Members shall not exceed one-third of the total Membership of the committee.(2) Every committee constituted under this section shall elect its own Chairman:Provided that—

(i) where the President is a Member of such committee, he shall be the Chairman of such committee, and in his absence, the Vice-President, if he is a Member of such committee, shall be its Chairman; and

(ii) where the President is not a Member of such committee but the Vice-President is a Member, he shall be its Chairman.

(3) The committees shall exercise such functions and be subject to such conditions as may be specified.

22. Finances of Council .—(1) There shall be established a fund under the management and control of the Council into which shall be paid all moneys (including donations and grants) received by the Council and out of which shall be met all expenses and liabilities incurred by the Council.(2) The Council may invest any money for the time being standing to the credit of the fund in any security as it may deem prudent consistent with the considerations of security of such investments and maximum returns thereon.Explanation.—For the purposes of this sub-section, the expression “securities” shall have the meaning assigned to it in section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956), as amended from time to time.(3) The Council shall keep proper accounts of the fund distinguishing capital account from revenue account.(4) The annual accounts of the Institute shall be subject to audit by a Chartered Accountant in practice within the meaning of the Chartered Accountants Act, 1949 (38 of 1949), to be appointed annually by the Council:Provided that no Member of the Council who is a Chartered Accountant or a person who is in partnership with such Member shall be eligible for appointment as an auditor under this sub-section.(5) As soon as may be practicable at the end of each year, but not later than the 30th day of September of the year next following, the Council shall cause to be published in the Gazette of India, a copy of the audited accounts and the report of the Council for that year and copies of the said accounts and report shall be forwarded to the Central Government and to all the Members of the Institute.(6) The Council may borrow from a scheduled bank, as defined in the Reserve Bank of India Act, 1934 (2 of 1934), or from any public financial institution,—

(a) any money required for meeting its liabilities on capital account on the security of the fund or on the security of any other asset, for the time being belonging to it; or

(b) for the purpose of meeting current liabilities, pending the receipt of income, by way of temporary loan or overdraft.

Explanation.—The expression “public financial institution” means a financial institution specified in section 4-A of the Companies Act, 1956 (1 of 1956).

CHAPTER III

Register Of Members

23. Register .—(1) The Council shall maintain in the specified manner a register of the Members of the Institute.(2) The register shall include the following particulars about every Member of the Institute, namely:—

(a) his full name, date of birth, domicile, residential and professional addresses;

(b) the date on which his name is entered in the register;

(c) his qualifications;

(d) whether he holds a certificate of practice; and

(e) any other particulars which may be specified.

(3) The Council shall cause to be published in such manner as may be specified a list of Members as on the 1st day of April each year, and shall, if requested to do so by any such Member, send him a copy of such list, on payment of such amount as may be specified.(4) Every Member of the Institute shall, on his name being entered in the register, pay such annual Membership fee as may be specified by the Council.

24. Removal of name from register .—The Council may, by order, remove from the register the name of any Member of the Institute—

(a) who is dead; or

(b) from whom a request has been received to that effect; or

(c) who has not paid any specified fee required to be paid by him; or

(d) who is found to have been subject to, at the time when his name was entered in the register, or who at any time thereafter has become subject to, any of the disqualifications mentioned in section 11; or

(e) who for any other reason has ceased to be entitled to have his name borne on the register.

25. Re-entry in register .—The Council may re-enter the name of a Member, whose name has been removed from the register for reasons mentioned in clauses (b), (c), (d) and (e) of section 24, by an order, and on paying such fees, and after satisfying such conditions and requirement as may be specified.

CHAPTER IV

Misconduct

26. Disciplinary Committee .—(1) The Council shall constitute a Disciplinary Committee consisting of the President or the Vice-President of the Council as the Presiding Officer and two Members of the Council elected by the Council and two Members to be nominated by the Central Government from amongst the persons of eminence having experience in the field of law, education, economics, business, finance, accountancy or public administration:Provided that the Council may constitute more regional Disciplinary Committee as and when it deems fit.(2) The Disciplinary Committee in making the inquiry under the provisions of this Act shall follow such procedure and submit the report to the Council within such time as may be prescribed.

27. Appointment of Prosecution Director .—(1) The Council may, by notification, appoint a Prosecution Director and such other employees to assist the Disciplinary Committee in making inquiries in respect of any information or complaint received by the Council under the provisions of this Act.(2) In order to make inquiries under the provisions of this Act, the Prosecution Director shall follow such procedure as may be prescribed.

28. Authority, Council, Disciplinary Committee and Prosecution Director to have powers of Civil Court .—For the purposes of an inquiry under the provisions of this Act, the Authority, the Disciplinary Committee and the Prosecution Director shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) the discovery and production of any document; and

(c) receiving evidence on affidavit.

29. Action by Council on Disciplinary Committee’s report .—(1) On receipt of a report from the Disciplinary Committee, if the Council is satisfied that the Member of the Institute is guilty of any professional or other misconduct, it shall record its findings accordingly and shall proceed in accordance with the provisions of section 30.(2) In case the Council is not satisfied with the report of the Disciplinary Committee and is of the opinion that it requires further inquiry, it may refer the report again to the Disciplinary Committee for such further inquiry as may be directed through an order of the Council.(3) If the Council disagrees with the findings of the Disciplinary Committee, it may direct the Prosecution Director or itself make an appeal to the Authority.

30. Member to be afforded opportunity of being heard .—Where the Council is of the opinion that a Member is guilty of a professional or other misconduct mentioned in the Schedule, it shall afford to the Member a reasonable opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely:—

(a) reprimand the Member; or

(b) remove the name of the Member from the register permanently or for such period, as it thinks fit;

(c) impose such fine as it may think fit, which may extend to five lakh rupees.

Explanation.—For the purposes of this section, “Member of the Institute” includes a person who was a Member of the Institute on the date of the alleged misconduct although he has ceased to be a Member of the Institute at the time of the inquiry.

31. Professional or other misconduct defined

CHAPTER V

Appeals

32. Constitution of Appellate Authority .—The Appellate Authority constituted under sub-section (1) of section 22-A of the Chartered Accountants Act, 1949 (38 of 1949), shall be deemed to be the Appellate Authority for the purposes of this Act subject to the modification that for clause (b) of said sub-section (1), the following clause had been substituted, namely:—“(b) the Central Government shall, by notification, appoint two part-time Members from amongst the persons who have been Members of the Council of the Institute of Actuaries for at least one full term and who are not sitting Members of the Council;”.

33. Term of office of Members of Authority .—A person appointed as a Member shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of sixty-seven years, whichever is earlier.

34. Allowances, conditions of service of Members and procedure, etc., of Authority .—The provisions of section 22-C, section 22-D and section 22-F of the Chartered Accountants Act, 1949 (38 of 1949) shall apply to the Authority in relation to allowances and terms and conditions of services of its Chairperson and Members, and in discharge of its functions under this Act as they apply to it in the discharge of its functions under the Chartered Accountants Act, 1949 (38 of 1949).

35. Officers and other staff of Authority .—(1) The Council shall make available to the Authority such officers and other staff Members as may be necessary for the efficient performance of the functions of the Authority.(2) The salaries and allowances and conditions of service of the officers and other staff Members of the Authority shall be such as may be specified.

36. Appeal to Authority .—(1) Any Member of the Institute aggrieved by any order of the Council imposing on him any of the penalties referred to in section 30, may, within ninety days of the date on which the order is communicated to him, prefer an appeal to the Authority:Provided that the Authority may entertain any such appeal after the expiry of the said period of ninety days, if it is satisfied that there was sufficient cause for not filing the appeal in time.(2) The Authority may, after calling for the records of any case, revise any order made by the Council under section 30 and may—

(a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce or enhance the penalty imposed by the order;

(c) remit the case to the Disciplinary Committee for such further inquiry as the Authority considers proper in the circumstances of the case; or

(d) pass such other order as the Authority thinks fit:

Provided that the Authority shall give an opportunity of being heard to the parties concerned before passing any order.

CHAPTER VI

Penalties

37. Penalty for falsely claiming to be a Member, etc .—Subject to the provisions of section 10, any person who,—

(a) not being a Member of the Institute,—

(i) represents that he is a Member of the Institute in any of the manners mentioned in section 7; or

(ii) uses the designation “Actuary”; or

(iii) uses the letters “AIAI” or “FIAI” after his name; or

(iv) practises the profession of an Actuary; or

(b) being a Member of the Institute, but not having a certificate of practice, represents that he is in practice, or practises as an Actuary, shall be punishable on first conviction with fine which may extend to one lakh rupees, and on any subsequent conviction with imprisonment which may extend to one year, or with fine which may extend to two lakh rupees, or with both.

38. Penalty for using name of Institution, awarding degrees of Actuarial science, etc .—(1) Save as otherwise provided in this Act, no person shall—

(a) use a name or a common seal which is identical with the name or the common seal of the Institute or so nearly resembles it so as to deceive or as is likely to deceive the public; or

(b) award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence in Actuaryship similar to that of a Member of the Institute; or

(c) seek to regulate in any manner whatsoever the profession of Actuaries.

(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable with fine, which may extend on first conviction to fifty thousand rupees and on any subsequent conviction with imprisonment which may extend to one year, or, with fine which may extend to one lakh rupees, or with both.(3) Nothing contained in this section shall apply to any University or other institution established by law or to any body affiliated to the Institute.

39. Companies not to engage in Actuarial practice .—(1) No company, whether incorporated in India or elsewhere, shall practice as Actuaries.(2) Any company contravening the provisions of sub-section (1) shall be punishable on first conviction with fine which may extend to ten thousand rupees, and on any subsequent conviction with fine which may extend to twenty-five thousand rupees.

40. Unqualified person not to sign documents .—(1) No person other than a fellow Member of the Institute shall sign any document on behalf of an Actuary in practice or a firm of such Actuaries in his or its professional capacity.(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable on first conviction with fine which may extend to fifty thousand rupees, and on any subsequent conviction with imprisonment which may extend to one year, or with fine which may extend to one lakh rupees, or with both.

41. Offences by companies .—(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation.—For the purposes of this section—

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

42. Sanction to prosecute .—No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government.

CHAPTER VII

Quality Review Board

43. Establishment of Quality Review Board .—(1) The Central Government shall, by notification, constitute a Quality Review Board consisting of a Chairperson and not more than four Members:Provided that in case the Board is constituted with two Members, one each shall be nominated by the Council and the Central Government, respectively.(2) The Chairperson and Members of the Board shall be appointed from amongst the persons of eminence having experience in the field of law, education, economics, business, finance, accountancy or public administration.(3) Two Members of the Board shall be nominated by the Council and other two Members shall be nominated by the Central Government.

44. Functions of Board .—The Board shall perform the following functions, namely:—

(a) to fix standards for the services provided by the Members of the Institute;

(b) to review the quality of services provided by the Members of the Institute including Actuarial audit services; and

(c) to guide the Members of the Institute to improve the quality of services and adherence to the various statutory and other regulatory requirements.

45. Procedure of Board .—The Board shall follow in its meeting and in discharging its functions such procedure as may be prescribed.

46. Terms and conditions of Chairman and Members of Board .—The terms and conditions of service of the Chairperson and the Members of the Board, their place of meetings, remuneration and allowances shall be such as may be prescribed.

47. Expenditure of Board .—The expenditure of the Board shall be borne by the Council.

CHAPTER VIII

Dissolution Of The Actuarial Society Of India Registered Under The Societies Registration Act

48. Dissolution of Actuarial Society of India .—On the appointed day,—

(a) the society known as the Actuarial Society of India registered under the Societies Registration Act, 1860 (21 of 1860) and the Bombay Public Trusts Act, 1950 (Bombay Act XXXIX of 1950) shall stand dissolved and thereafter no person shall make, assert or take any claims or demands or proceedings against the dissolved society or against any officer thereof in his capacity as such officer except in so far as may be necessary, for enforcing the provisions of this Act;

(b) the right of every Member to, or in respect of, the dissolved society shall be extinguished, and thereafter no Member of the society shall make, assert or take any claims or demands or proceedings in respect of that society except as provided in this Act.

49. Provisions respecting employees of dissolved society .—(1) Every person employed in the dissolved society and continuing in its employment immediately before the commencement of this Act shall, as from such commencement, become an employee of the Institute, shall hold his office or service therein by the same tenure and upon the same terms and conditions and with the same rights and privileges as to retirement benefits as he would have held the same under the dissolved society if this Act had not been passed, and shall, continue to do so unless and until his employment in the Institute is terminated or until his remuneration, terms and conditions of employment are duly altered by the Institute.(2) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or in any other law for the time being in force, the transfer of the services of any employee of the dissolved society to the Institute shall not entitle any such employee to any compensation under that Act or other law, and no such claims shall be entertained by any Court, Tribunal or other authority.

CHAPTER IX

Miscellaneous

50. Maintenance of more than one offices by Actuary .—(1) Where an Actuary in practice or a firm of such Actuaries has more than one offices within or outside India, each one of such offices shall be in the separate charge of a fellow Member of the Institute:Provided that the Council may in suitable cases exempt any Actuary in practice or firm of such Actuaries from the operation of this sub-section.(2) Every Actuary in practice or a firm of such Actuaries maintaining more than one office shall send to the Council a list of offices and the person in charge thereof and shall keep the Council informed of any changes in relation thereto.

51. Reciprocity .—(1) Where any country, notified by the Central Government in this behalf in the Official Gazette, prevents persons of Indian domicile from becoming Members of any institution similar to the Institute or from practicing the profession of Actuaries or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to become a Member of the Institute or practice the profession of Actuaries in India.(2) Subject to the provisions of sub-section (1), the Council may specify the conditions, if any, subject to which foreign qualifications relating to Actuarial science shall be recognised for the purposes of entry in the register.

52. Power of Central Government to issue directions .—(1) For the purposes of this Act, the Central Government may, from time to time, give to the Council such general or special directions as it thinks fit, and the Council shall, in the discharge of its functions under this Act, comply with such directions.(2) If, in the opinion of the Central Government, the Council has persistently made default in giving effect to the directions issued under sub-section (1), it may, after giving an opportunity of being heard to the Council, by notification, dissolve the Council, whereafter a new Council shall be constituted in accordance with the provisions of this Act with effect from such date as may be decided by the Central Government.(3) Where the Central Government has issued a notification under sub-section (2) dissolving the Council, it may, pending the constitution of a new Council in accordance with the provisions of this Act, authorise any person or body of persons to take over the management of the affairs of the Council and to exercise such functions as may be mentioned in the notification.

53. Protection of action taken in good faith .—No suit, prosecution or other legal proceeding shall lie against the Central Government or the Council or the Disciplinary Committee or the Tribunal or the Authority or the Board or the Prosecution Director or any officer of that Government, Council, Committee, Tribunal, Authority or Board, for anything which is in good faith done or intended to be done under this Act or any rule, regulation, notification, direction or order made thereunder.

54. Members, etc., to be public servants .—The Chairperson, Presiding Officer, Members and other officers and employees of the Authority, Tribunal and Board, and the Prosecution Director shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

55. Power of Central Government to make rules .—(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) the manner of election and nomination in respect of Members to the Council under sub-section (2) of section 12;

(b) the terms and conditions of service of the Presiding Officers and Members of the Tribunal, place of meeting, remuneration and allowances to be paid to them under sub-section (3) of section 16;

(c) the procedure of inquiry and submission of report by the Disciplinary Committee under sub-section (2) of section 26;

(d) the procedure of inquiry by the Prosecution Director under sub-section (2) of section 27;

(e) any act or omission which may be determined as professional misconduct under section 31;

(f) the procedure to be followed by the Board in its meetings and discharging its functions under section 45; and

(g) terms and conditions of service of the Chairman and Members of the Board under section 46.

56. Power to make regulations .—(1) The Council may, with the previous approval of the Central Government and subject to the previous publication, by notification in the Official Gazette, make regulations to carry out the provisions of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:—

(a) the examination and training for the purposes of clauses (b), (c) and (d) of sub-section (1) of section 6;

(b) the manner of making an application under sub-section (3) of section 6;

(c) the fees payable under sub-section (3) of section 6, sub-section (2) of section 9, clause (a) of sub-section (2) of section 19, sub-section (4) of section 23;

(d) the manner in which the honorary Member may be chosen under sub–section (1) of section 8;

(e) the terms and conditions on which an affiliate Member may be admitted under sub-section (2) of section 8;

(f) the academic qualifications for admission of a student Member under sub-section (3) of section 8;

(g) qualifications required for a certificate of practice under sub-section (1) and the form in which an application may be made under sub-section (2) of section 9;

(h) the transaction of business by the Council for the discharge of its functions mentioned in sub-section (2) of section 19;

(i) terms and conditions of the services under sub-section (1) of section 20;

(j) the functions and conditions of the committees under sub-section (3) of section 21;

(k) the manner in which the register of the Members of the Institute and other particulars to be maintained under sub-sections (1) and (2) of section 23;

(l) the manner in which the annual list of Members of the Institute may be published under sub-section (3) of section 23;

(m) the conditions and requirements and payment of fee for re-entry in the register under section 25;

(n) salaries and allowances and conditions of service of the officers and other staff Members of the Authority under sub-section (2) of section 35;

(o) the conditions subject to which foreign qualifications may be recognised under sub-section (2) of section 51; and

(p) any other matter which is required to be, or may be, prescribed under this Act.

57. Power of Central Government to issue directions for making or amending regulations .—(1) Where the Central Government considers it expedient so to do, it may, by order in writing, direct the Council to make any regulations or to amend or revoke any regulations already made within such period as it may specify in this behalf.(2) If the Council fails or neglects to comply with such order within the specified period, the Central Government may itself make the regulations or amend or revoke the regulations made by the Council.

58. Laying of rules and regulations .—Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall, thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

59. Power to remove difficulties .—(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty:Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.This clause seekds to empower the Central Government to remove the difficulties that may arise in giving effect to the provisions of the Act or in its implementation within a specified period. (Notes on Clauses).


THE SCHEDULE

(See section 31)

Professional Misconduct of an Actuary


Professional Laws in India

Actuary

A person who compiles and analyses statistics and uses them to calculate insurance risks and premiums.

Institute of Actuaries of India(IAI)

The Actuaries Act 2006


Accountant

“Registered accountant” means any person who has been enrolled on the Register of
Accountants maintained by the Central Government under the Auditor’s Certificates Rules, 1932

Chartered Accountants Act, 1949

THE CHARTERED ACCOUNTANTS REGULATIONS, 1988

Auditors’ Certificates Rules, 1932

Institute of Chartered Accountants of India

The Institute of Chartered Accountants of India (ICAI) is a statutory body established by an Act of Parliament, viz. The Chartered Accountants Act, 1949 (Act No.XXXVIII of 1949) for regulating the profession of Chartered Accountancy in the country. The Institute, functions under the administrative control of the Ministry of Corporate Affairs, Government of India. The ICAI is the second largest professional body of Chartered Accountants in the world, with a strong tradition of service to the Indian economy in public interest

The Institute of Cost Accountants of India

COST AND WORKS ACCOUNTANTS ACT, 1959


Advocates 

The Advocates Act 1961

Advocates to be the only recognised class of persons entitled to practise law. Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act.

The Advocates (Right to take up Law Teaching) Rules, 1979

Right of practising advocates to take up law leaching.— (1). Notwithstanding anything to the contrary contained in any rule made under the Act, an advocate may, while practising, take up the teaching of law in any educational institution which is affiliated to UGC  under University Grants Commission Act 1956 (3 of 1956), the engagement of teaching of law do not exceed three hours in a day.

Bar Council of India [Regulator]

Advocates Welfare Fund Act 2001

The Legal Services Authorities Act, 1987

The Notaries Act 1952


Law of advocacy Click here 


Indian Legal Service

A complete overhaul of the Indian Legal Service is in the offing. The law ministry is preparing a cabinet note for this purpose so as to bring the ILS on a par with the civil services so that the best students out of law schools join the government.Once selected, the officers will be sent for training to National Judicial Academy, Bhopal

Indian Corporate Law Service

Presently there are two modes of recruitment of ICLS, first one is the direct recruitment conducted by UPSC commission and the second one is by upgrading the officers working under Group ‘B’ service. The existing ratio of both forms of recruitment is 60%:40%.

The probationary officers of ICLS are trained in ICLS Academy at the Indian Institute of Corporate Affairs (IICA). IICA takes up the task to accomplish the induction training for the probationary officers. The induction training programme is carried out for almost 10 months.

Department of Legal Affairs

The Department of Legal Affairs has a two-tier set up, namely, the Main Secretariat at New Delhi and the Branch Secretariats at Mumbai, Kolkata, Chennai and Bangaluru. The nature of duties discharged can be broadly classified into two areas- Advice work and Litigation work.


Archeologist

Archaeological Survey of India


Architect

The Council of Architecture (COA)


Baker and Banking

Bank clerk (client service)

bank clerk for commercial credit

banking expert


Company Secretary

The Company Secretaries Act, 1980

The Institute of Company Secretaries of India(ICSI)

The Institute of Company Secretaries of India(ICSI) is constituted under an Act of Parliament i.e. the Company Secretaries Act, 1980 (Act No. 56 of 1980). ICSI is the only recognized professional body in India to develop and regulate the profession of Company Secretaries in India.


Dentist

The Dentist Act 1948

The Dental Council


The driver of motor vehicles (motor vehicle driver)

Drug Seller and Pharmacist Drug Seller and Pharmacist 


Engineer 

Who is a Professional Engineer: – A Professional Engineer is one who has an approved engineering qualification, continuously updates his skills and knowledge in his chosen engineering specialization, follows and is bound by an Ethics Code formulated by his Peer Group.

Engineering Council of India

Chartered Engineer

Any Life Corporate Member of the Institution of Engineers (India) can designate himself as a Chartered Engineer (C Eng).

Exporter 

Export-with its grammatical variations and cognate expressions, means taking out of India to a place outside India.

Foreign Trader


High profile Manager in PSUs

Chairman, Managing Director or Chairman-cum-Managing Director (Level-I), and Functional Director (Level-II) in PSEs

The Public Enterprises Selection Board [P.E.S.B]

Hotelier and Hotel Manager


 Indian Administrative Service [IAS]

All India Service” means the service known as the Indian Administrative Service or the service known as the Indian Police Service.

  1. The Indian Service of Engineers (Irrigation, Power, Buildings and Roads);
  2. The Indian Forest Service;
  3. The Indian Medical and Health Service.

All India Services Act, 1951

Indian Administrative Service (Cadre) Rules, 1954.

All India Service Conduct rules 1968

Union Public Service Commission

Under Article 320 of the Constitution of India, the Commission is, inter-alia, required to be consulted on all matters relating to recruitment to civil services and posts. The functions of the Commission under Article 320 of the Constitution are:

  1. Conduct examinations for appointments to the services of the Union.
  2. Direct recruitment by selection through interviews.
  3. Appointment of officers on promotion / deputation / absorption.
  4. Framing and amendment of Recruitment Rules for various services and posts under the Government.
  5. Disciplinary cases relating to different Civil Services.
  6. Advising the Government on any matter referred to the Commission by the President of India.

Department of Personnel and training Govt of India 


Judge

Judicial Officers Protection Act, 1850

(The) Judges (Protection) Act, 1985

The Judges Inquiry Act, 1968

The Contempt of Courts Act, 1971

Law Maker


Medical Practioner 

INDIAN MEDICAL COUNCIL (Professional Conduct, Etiquette and Ethics) Regulations, 2002

THE INDIAN MEDICAL COUNCIL ACT, 1956

Notaries 

Nurse (general medicine, pediatric, obstetrics)

Indian Nursing Council Act- 1947  


Police 

The Police Act 1861 


 

 

Law of Advocacy

PROFESSION OF LAW IS NOT TRADE, IT IS A PUBLIC FUNCTION: Advocacy is a calling to some higher satisfaction than a commercial gain. It requires a higher degree of autonomy that lawyers experience from external controls other than those imposed by self-regulation.

Advocates to be the only recognized class of persons entitled to practice law in India and every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Advocates  Act extends. In Supreme Court only an Advocate-on-Record is entitled to file an appearance or act for a party in the Court, no advocate other than an Advocate-on-Record can appear and plead in any matter unless he is instructed by an Advocate on- Record.

No person having an Advocate-on-Record shall be heard in person except by Special Leave of the Court.  The Chief Justice and the Judges may, with the consent of an advocate, designate him as Senior Advocate, if in their opinion, by virtue of his ability, standing at the Bar or special knowledge or experience in law, he deserves such a distinction. A Senior Advocate cannot file Vakalatnama or act in any Court or Tribunal in India. He cannot appear, without an Advocate-on-Record, in the Supreme Court, and without a junior in any other Court or Tribunal in India. He cannot accept any brief or instructions directly from the client, to appear in any Court or Tribunal in India. He cannot accept instructions to draw pleadings or affidavits. He cannot advise on evidence or do any drafting work, though he is entitled to settle any matter in consultation with a junior( ch 2 practice & procedure of  Supreme Court)

  • The attorney’s first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called “wards” of the court in regard to their relationship with their attorneys.
  • Advocacy is the means by which a Barrister or an Advocate puts their client’s case to the Court, and may be both written and oral. It is a specialist skill, the quality and excellence of which distinguishes the Bar from other providers of Legal Services. It is in the interests of the public, the court and the profession that barristers and Advocates  present their cases to the highest possible standards

“Advocate” means an advocate entered in any roll( state bar council after completion of LLB and citizen of India completed the age of 21 years with clean morality u/s 24A ) under the provisions of Advocates Act 1961. There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as a senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability 1 [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction. (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe( S 16 OF THE ADVOCATES ACT). State Bar Councils to maintain roll of advocates(S 17).The Attorney-General of India shall have pre-audience over all other advocates(S 23)

Legal Practice in India is governed by the Advocates Act 1961 and Bar Council of India being a creature of the Advocates Act, acts as Statutory regulator responsible for the issuance of Licence, regulation of Practice and disciplinary proceeding against an Advocate amongst others.

Bar Council of India has been empowered under section 49 of the Advocates Act to make rules. In exercise of those powers Bar Council of India made rules which were published in the official gazette on 6 September 1975.

Law Commission of India by its 226 Report recommended certain changes in the present Advocates Act. Supreme Court by  Mahipal Singh Rana vs. State of Uttar Prades [AIR 2016 SC 3302] recommended for overhaul of Advocates Act so that public can have some faith restored that bar council or a new regulatory body can do the job of punishing violations of standards of conduct by advocates.

  •  Supreme Court observed in Mahipal Singh Rana vs State Of U.P on 5 July, 2016
    Corum: Anil R. Dave, Kurian Joseph, Adarsh Kumar Goel  as below:-

We may also refer to certain articles on the subject. In “Raising the Bar for the Legal Profession” published in the Hindu newspaper dated 15th September, 2012, Dr. N.R.Madhava Menon wrote:

“……..Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 percent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

In Bar Council of Maharashtra versus M.V. Dabholkar following observations have been made about the vital role of the lawyer in the administration of justice.

 Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon (his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation(para 32)

  • Allahabad High Court in Prayag Das vs Civil Judge, Bulandshahr And Ors. on 14 March, 1973 Equivalent citations: AIR 1974 All 133 observed:-

    It is correct that the High Court does not possess the power to take away an Advocate’s right to practice in courts. That power can be exercised only by the Bar Council which may also frame rules under Section 49(ab) of the Advocates Act. But in our opinion, the High Court has the power to regulate the appearance of Advocates in Courts. The right to practice and the right to appear in courts are not synonymous. An Advocate may carry on chamber practice or even practice in court is various other ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose, his physical appearance in court may not at all be necessary. For the purpose of regulating his appearance in court the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts.

  • The Law Commission has  produced  The Advocates (Amendment) Bill, 2017, thereby inter alia recommended :

Expanded definition advocate :  “advocate” means an advocate entered in any roll under the provisions of this Act and includes an advocate carrying on practice in law with a law firm, by whatever name called, and a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India.

Definition of misconduct elaborated :‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non- observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behaviour ;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A

New definition and recognition :‘Law Firm’ means a firm, formed and registered under the Indian Partnership Act, 1932; or under the Limited Liability Partnership Act, 2008; or a private or public limited company incorporated under the Companies Act, 2013 comprising of an advocate or advocates for carrying on practice in law and includes law firms formed and registered under any other law outside India.

Training: The Law Commission has proposed one-year apprenticeship for a new candidate and after enrollment Continuing Legal Education for practicing lawyers, irrespective of the experience.

Ban on Strike and Cease Work :“No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises”

Suffering litigants shall be compensated by the lawyer: If any person suffers loss due to the misconduct of the advocate or for his participation in strike or otherwise, then, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force.

The non-payment of fees, either in full or part, by a person to his advocate, shall not be a defence available for the advocate against whom such claim for compensation is made.


APPEARANCE BY ADVOCATES AND CONTEMPT OF COURT

A lawyer’s duty to the court is a fundamental obligation that defines a lawyer’s role within the adversarial system. A lawyer’s duty to the court relates to his or her status as a professional who serves, not only clients, but also the public interest. Historically, a professional was distinguished from a tradesperson by a public declaration – demonstrated today by the oath taken at admission to the Bar – to serve others and devote their intellect and efforts to the public good.

Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision, the Court made highly illuminating observations in regard to lawyers’ right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below:

“34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of a client event though his appearance inside the court is not permitted.

Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is genus of which the right to appeal and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practice law. While the Bar Council can exercise control over the latter, the courts are in control of the former. The distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practicing before this Court. Similarly, Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a Court to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in a court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 Constitution of Indian on the other.”[ Supreme Court of India R.K.Anand vs Registrar,Delhi High Court on 29 July, 2009].


Duties Of  Lawyers

Lawyers typically do the following:

  • Advise and represent clients in courts, before government agencies, and in private legal matters
  • Communicate with their clients, colleagues, judges and others involved in the case
  • Conduct research and analysis of legal problems
  • Interpret laws, rulings, and regulations for individuals and businesses
  • Present facts in writing and verbally to their clients or others and argue on behalf of their clients
  • Prepare and file legal documents, such as lawsuits, appeals, wills, contracts, and deeds

Lawyers, also called attorneys, act as both advocates and advisors.

As advocates, they represent one of the parties in criminal or civil trials by presenting evidence and arguing in support of their client.

As advisors, lawyers counsel their clients about their legal rights and obligations and suggest courses of action in business and personal matters. All attorneys research the intent of laws and judicial decisions and apply the laws to the specific circumstances that their clients face.

Lawyers may have different titles and different duties, depending on where they work.

While working in a law firm, lawyers, sometimes called associates, perform legal work for individuals or businesses. Some attorneys who work at law firms, such as criminal law attorneys or defense attorneys, represent and defend the accused.

Attorneys also work for federal, state, and local governments. Prosecutors typically work for the government to file a lawsuit, or charge, against an individual or corporation accused of violating the law. Some may also work as public defense attorneys and represent individuals who could not afford to hire their own private attorney.

Others may work as government counsels for administrative bodies of government and executive or legislative branches. They write and interpret laws and regulations and set up procedures to enforce them. Government counsels also write legal reviews on agencies’ decisions. They argue civil and criminal cases on behalf of the government.

Corporate counsels, also called in-house counsels, are lawyers who work for corporations. They advise a corporation’s executives about legal issues related to the corporation’s business activities. These issues may involve patents, government regulations, contracts with other companies, property interests, taxes, or collective-bargaining agreements with unions.

Legal aid lawyers work for private, nonprofit organizations that work to help disadvantaged people. They generally handle civil cases, such as those about leases, job discrimination, and wage disputes, rather than criminal cases.

In addition to working in different industries, lawyers often specialize in a particular area. The following are just some examples of the different types of lawyers that specialize in specific legal areas:

Environmental lawyers deal with issues and regulations that are related to the environment. They may represent advocacy groups, waste disposal companies, and government agencies to make sure they comply with the relevant laws.

Tax lawyers handle a variety of tax-related issues for individuals and corporations. Tax lawyers may help clients navigate complex tax regulations, so that they pay the appropriate tax on items such as income, profits, or property. For example, they may advise a corporation on how much tax it needs to pay from profits made in different states to comply with the Internal Revenue Service (IRS) rules.

Intellectual property lawyers deal with the laws related to inventions, patents, trademarks, and creative works, such as music, books, and movies. An intellectual property lawyer may advise a client about whether it is okay to use published material in the client’s forthcoming book.

Family lawyers handle a variety of legal issues that pertain to the family. They may advise clients regarding divorce, child custody, and adoption proceedings.

Securities lawyers work on legal issues arising from the buying and selling of stocks, ensuring that all disclosure requirements are met. They may advise corporations that are interested in listing in the stock exchange through an initial public offering (IPO) or in buying shares in another corporation.

Litigation lawyers handle all lawsuits and disputes between parties. These could be disputes over contracts, personal injuries, or real estate and property. Litigation lawyers may specialize in a certain area, such as personal injury law, or maybe a general lawyer for all types of disputes and lawsuits.

Some attorneys become teachers in law schools.


ROLE OF A LAWYER AS OBSERVED BY Supreme Court of India in O.P.Sharma & Ors vs High Court Of Punjab & Haryana on 9 May, 2011(extract)

The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation’s administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. These include the names of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in the administration of justice.

13) Section I of Chapter-II, Part VI titled “Standards of Professional Conduct and Etiquette” of the Bar Council of India Rules specifies the duties of an advocate towards the Court which reads as under:

“Section I – Duty to the Court

1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.

2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.

3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.

5. An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.

6. An advocate shall not enter appearance, act, plead or practice in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.

7. An advocate shall not wear bands or gown in public places other than in courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.

8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation. “Executive Committee “, by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation.

Provided that this rule shall not apply to such a member appearing as “amicus curiae” or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.

9. An Advocate should not act or plead in any matter in which he is himself peculiarly interested.

Illustration I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.

II. He should not accept a brief from a company of which he is Director.

10. An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings.”

Again

Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practicing the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary [vide D.C. Saxena vs. The Hon’ble Chief Justice of India, (1996) 5 SCC 216].

A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon’ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757  In Lalit Mohan Das vs. Advocate General, Orissa & Another, AIR 1957 SC 250, this Court observed as under:

“A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalizing the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; if brought into disrepute the whole administration of justice.”

Advocates Role and Ethical Standards:

An advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards society. A client’s relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with the utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and the justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system. An advocate should be dignified in his dealings to the Court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

As a rule, an Advocate being a member of the legal profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for the issue.[Supreme Court of India O.P.Sharma & Ors vs High Court Of Punjab & Haryana, para 30, 31]

THREE KEY DUTIES OF A LAWYER WHICH IS ESSENTIAL FOR TRUE ADVOCACY :

(A) to use tactics that are legal, honest and respectful to courts and tribunals;

  • A lawyer cannot knowingly offer or rely on false evidence or misstate evidence.
  • Not to knowingly mislead the court on evidentiary issues, a lawyer cannot misstate the law. Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant to a case.

(B) to act with integrity and professionalism while maintaining his or her overarching responsibility to ensure civil conduct;

  • Lawyers are officers of the court and as such, must act with integrity and professionalism while maintaining their overarching responsibility to ensure civil conduct.  (1) avoiding sharp practice; (2) having respect for the court(A lawyer should not abuse the court process. A lawyer should not unreasonably raise or defend an action for which there is no legal justification, similarly, a lawyer should not waste time on irrelevancies, even if prompted to do so by the client and should not make frivolous and vexatious objections. In addition, requests for adjournments should not be taken lightly and (3) maintaining civility in dealing with others. A lawyer’s duty to be civil to opposing counsel, includes the following conduct: a) the duty not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or discourteous conduct; b) the duty to be honest and truthful with opposing counsel; and c) to be accommodating and flexible regarding scheduling and routine matters. A lawyer also has a duty to maintain an honest relationship with opposing counsel.

and

(C) to educate clients about the court processes in the interest of promoting the public’s confidence in the administration of justice. Below is a discussion of these three duties.

These rules have been placed thereunder. Some of the basic and crucial duties are summed up below:-

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT-Chapter II, Part VI of the BCI RulesU/S  49(1) (c) of the Advocates Act, 1961

•    Bound to accept briefs.
•    Not appear in matters where he himself is a witness.
•    Full disclosure to the client.
•    Uphold the interest of the client.
•    Not suppress material or evidence.
•    Not disclose the communications between the client and himself.
•    An advocate should not be a party to stir up or instigate litigation.
•    An advocate should not act on the instructions of any person other than his client or the client’s authorized agent.
•    Not charge depending on the success of matters.
•    Not bid, purchase or transfer property arising from legal proceeding.
•    Not adjust fees against personal liability.
•    An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
•    Keep proper accounts.
•    Adjust fees after termination of proceedings.
•    Not appear for opposite parties.

The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related with the law of privilege, depends for its efficacy on independence.

In the United States, the duty to the client is generally seen as the lawyer’s primary duty, while in Britain the duty to the court is preeminent. In our  Indian system, the two duties are given equal prominence. We follow the Buddhist Middle Path.


What Judges Can Expect from a Counsel

  • Judges are entitled to expect that counsel will treat the court with heartfelt manner, fairness and courtesy.
  • Judges are entitled to expect that a counsel is by training and experience competent to handle the matter before the court.
  •  Notwithstanding that the parties are engaged in an adversarial process, judges are entitled to expect that counsel will assist the court in doing justice to the case. Judges are entitled to expect counsel to assist in maintaining the dignity and decorum of the courtroom and their profession and avoid disorder and disruption. Judges are entitled to expect counsel to be punctual, appropriately attired and adequately prepared in all matters before the courts.
  •  Judges may expect counsel to properly instruct their clients as to behaviour in the courtroom, and any court-related proceedings. Counsel are expected to take what steps are necessary to dissuade clients and witnesses from causing disorder or disruption in the courtroom.
  •  Judges are entitled to expect that counsel, in their public statements, will not engage in personal attacks on the judiciary or unfairly criticize judicial decisions.
  • A lawyer, well equipped in the art of advocacy, would, by intuition as also from experience, realise that there is no purpose served in intimidating a judicial officer. But, often righteous indignation and flaring up of tempers, at the heat of a moment; results in such rich experience, being shrouded by emotions. That is human nature, but a judicial officer entrusted with the process of adjudication cannot afford to succumb to such coarse, baser instincts. A judicial officer should always realise that a lawyer’s indiscretion should not influence the adjudication process, thus resulting in the litigant’s claim being negatived; by reason of such bias alone. [ KERALA HIGH COURT in VINOD KUMAR  Vs. A. SASI [(2014) 4 KHC 631]

The Lawyer as Witness

The lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer’s partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as an advocate in any appeal from the decision in those proceedings. There are no restrictions upon the advocate’s right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.


Supreme Court Rules on Advocates