Full Judgment Text
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No 444 of 2022
Hemant Kumar Verma & Ors .... Petitioners
Versus
Employees State Insurance Corporation & Ors ....Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
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1 The respondent -Employees State Insurance Corporation - is a statutory body
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created under the Employees’ State Insurance Act 1948 . Act 18 of 2010 inserted
Section 59(B) in the Act of 1948 which stipulates that the Corporation may establish
medical colleges, nursing colleges, and training institutions for its employees to
improving the quality of services provided under the Employees’ State Insurance
Signature Not Verified
Scheme. The petitioners are junior residents who have completed their undergraduate
Digitally signed by
Sanjay Kumar
Date: 2022.07.28
16:32:04 IST
Reason:
medical course at medical institutions run by the ESIC. Undergraduate medical
1 “ESIC/ respondent-institute”
2 “Act of 1948”
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students pursuing their education in institutions conducted by the ESIC have to serve in
the institutions as junior residents. The petitioners were required to serve a five year
bond as junior residents.
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2 The respondent-institutions recruit Insurance Medical Officers Grade-II through a
written examination followed by an interview. ESIC provides a fifty per cent reservation
for “in-service” doctors in the post-graduate seats available in medical institutions run by
ESIC. While the post of IMO-II is included within the ambit of ‘in-service’ doctors, the
junior doctors are not. The respondent issued a notice on 10 November 2021 inviting
applications from eligible ‘in-service’ doctors of ESI Medical colleges. The petitioners
made representations on 11 February 2022, 4 March 2022, and 25 April 2022 to the
respondent-institution seeking to be considered in the ‘in-service’ quota for DNB
courses. Since there was no response from the respondent-institution, the petitioners
have invoked the jurisdiction of this Court under Article 32. The petitioners’ have sought
the following prayers:
“(i) Issue a writ of Mandamus or any other appropriate Writ,
order of direction to Respondents to declare that the
Petitioners/Junior Resident Doctors are eligible “in-service”
doctors of ESIC/ESIS for the purposes of inclusion in reservation
for PG courses.
(ii) Issue writ of mandamus or any other appropriate writ, order,
direction to the Respondents to extend the 50% “in-service”
doctors reservation for PG courses to the Junior Resident
Doctors serving in ESIC/ESIS institutions.”
3 The grievance of the petitioners is that that junior resident doctors and persons
working as IMO-II possess the same qualifications, entitlements, duties, and
responsibilities. However, while reservation in postgraduate education is provided to the
latter in the “in-service” category, it is not provided to the former.
3 ‘IMO-II”
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4 The Deputy Medical Commissioner (Medical Education) has filed an affidavit
before this Court on behalf of the respondent explaining the distinction between the
junior resident doctors, such as the petitioners, and the regular medical officers who are
recruited by the ESIC. The affidavit states as follows:
(i)
Candidates who pursue their undergraduate degree courses in these
colleges are required to execute a bond to serve the ESIC hospitals for
a stipulated period. Until 2017, the period of the bond was five years,
after which it was reduced to three years.
(ii) By a Memorandum dated 28 July 2020, the period of the bond was
reduced to one year for undergraduate MBBS/BDS students at the
ESIC medical and dental colleges. Para 2 of the Memorandum, inter
alia , contains the following stipulation:
“2. The reduction in Bond duration and Bond amount would be
prospective per-se, but in the following manner:
2.1 The benefit of reduced Bond period & Bond amount in lieu, would
also be extended to (i) all existing students (MBBS/BDS); (ii) Fresh
UG (MBBS/BDS) pass-outs; and (ii) UG (MBBS/BDS) pass-outs
already serving ESIC under Bond.
2.2 In case of pass-outs already serving under Bond, if the length of
service rendered is in excess of 01 year, they may be relieved
without payment to ESIC for left over Bond period.”
(iii) The petitioners completed their one year compulsory bond period
between 2019 and 2020. Though they were not under any compulsion
to serve beyond a year, as stipulated in the Memorandum dated 28
July 2020, they have continued to serve of their own volition.
(iv) The petitioners cannot be equated to IMO-II doctors to claim the 50%
reservation available to ‘in-service’ doctors for the following reasons:
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(a) Regular medical officers in ESIC are recruited by advertising
vacancies through the Recruitment Regulations of the post;
(b) The petitioners were serving the bond condition after completion of
their studies in ESIC medical colleges. Thus, they are not recruited
and cannot be called in-service doctors; and
(c) The medical officers are governed by the ESIC Staff and Condition
of Service Regulations 1959. The leave and other entitlements of
the junior resident doctors are as stipulated in the ESIC Residency
Scheme. A revised ESIC Residency Scheme was issued on 24
November 2020. Therefore, the medical officers and the junior
residents are recruited under and are governed by distinct
regulations.
5 We have heard Mr Sachin Patil, counsel appearing on behalf of the petitioners
and Mr Manish Kumar Saran, counsel appearing on behalf of the respondents.
6 The contention of the petitioners is two-fold. One, the junior residents are ‘in-
service’ doctors. They must thus be treated on parity with IMO-II doctors for the
provision of reservation benefits. The qualification, entitlement, duties, responsibilities,
and pay scale of the junior residents and IMO-II doctors are the same. The only
difference between the two categories is the mode of appointment. While the junior
residents are appointed directly because of the bond that they are serving, the IMO-II
doctors are appointed through a selection process. Two, junior residents are eligible for
50% reservation in respondent institutions on institutional preference. The Courts have
recognized reservation through institutional preference in post-Graduate medical
5
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education in Saurabh Chaudri v. Union of India and Yatin Kuma Jasubahi v. State
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of Gujarat .
7 The petitioners completed their undergraduate courses from ESIC medical/dental
colleges and have already served out their one year compulsory bond period. The
reduction in the bond period which was brought about on 28 July 2020 was also
extended to all existing students as well as undergraduate (MBBS/BDS) pass-outs who
were serving ESIC under bond. In view of the Memorandum dated 28 July 2020, it was
open to the petitioners to leave after the completion of one year of junior residency.
8 On 2 February 2018, the revised ESIC Residency Scheme for UG pass-outs was
issued. The scheme provides that the duties and responsibilities of the junior residents
will be fixed by the competent authority. It mentions that “they will be required to perform
such work as may be needed in the legitimate interest of patient care in ESI health
system (ESIS/ESIC) including Hospitals and dispensaries anywhere in India.” The
memorandum further states that the pay structure for the junior residents is similar to
the scale for the junior residents under the Central Residency Scheme. The IMO-II
doctors are governed by the ESIC Staff and Condition of Service Regulations 1959. The
crucial difference between junior residents and IMO- II is that while the former is a
contractual post where the doctors are employed directly due to the bond condition on
the completion of the MBBS degree, the latter is a permanent post. Therefore, the mode
of appointment and tenure of the posts vary. The IMO-IIs’ who pursue their post
graduate education as in-service candidates will serve the respondent institution after
completion of their post-graduate course. However, in the case of junior residents, since
4 (2003) 11 SCC 146
5 (2019) 10 SCC 1
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they are contractual employees who are serving the bond, they are not bound to serve
the respondent-institution after the completion of their post-graduate studies. The
reservation for in-service candidates is an incentive and an added benefit to the IMO-II
doctors who will be serving in the respondent-institution till superannuation. In such
circumstances, the argument of the petitioners that the junior residents and IMO-II
doctors are at par with each other for the former to be treated as “in-service” doctors
does not hold merit.
9 In Saurabh Chaudri (supra), a Constitution Bench of this Court approved
reservation based on ‘institutional preference’ as set out in Pradeep Jain v. Union of
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India . In Yatin Kuma Jasubahi (supra), a writ petition was filed challenging
institutional preference in admission to postgraduate medical courses. It was the
contention of the petitioners, in that case, that though institutional reservation had been
upheld by this Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would
not be permissible because of the introduction of an All India examination in the form of
NEET. Rejecting this argument, the three-Judge Bench of this Court held that post-
graduate medical admissions through institutional preference are only made to
candidates based on the rank received in the NEET examination. This Court in
Saurabh Chaudri (supra) and Pradeep Jain (supra) held that institutional preference
in post-graduate medical admissions is permissible and constitutional. However, this
Court cannot issue a mandamus directing the respondent to conduct admissions
through institutional preference. The decision of whether or not to provide institutional
preference solely lies with the respondent-authority since it falls within the realm of
policy.
6 (1984) 3 SCC 654
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10 On the above premises, there is a clear distinction in law between junior resident
doctors and regularly recruited ESIC doctors. The in-service quota is, therefore,
justifiably made available to the latter category. The petitioners cannot claim parity with
regularly recruited insurance medical officers in seeking the benefit of the in-service
quota.
11 For the above reasons, we find no merit in the petition. The petition is,
accordingly, dismissed.
12 Pending application, if any, stands disposed of.
…..…..…....…........……………….…........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[A S Bopanna]
New Delhi;
July 22, 2022