D.C. Choudhury, Prof. and Head of Medicine and Principal and Others vs The State of Assam and Others

T.N. Singh J.

State professes, it is carrying out the ''socio-constitutional'' mandate of the Directive Principles to improve public health. How ? By banning the ''private'' practice of ''Government doctors'' of a particular class. Writ Petitioners-not mere medicos, but medical teachers protest and call it a subterfuge. They arc aggrieved mainly by State''s infringement, according to them, of their fundamental right to carry on their profession issues raised are indeed vital impinging, as they do, upon matters like public interest and public policy but rather importantly for this Court, the question of Rule of Law.

Though arguments were advanced to us by learned Counsel on all aspects of the lies and we ungrudgingly beard them least public interest may seem jeopardised we propose, however, to limit our discussion and decision within a narrow campus. Indeed judicial discipline forbids us to act otherwise-constitutional issues demand a high-precision treatment. They are to be touched only by an electronic prod at the finest point. We would not, therefore, forage in open add. But, we cannot lay out frugally the factual mater as stakes on both side are high.

Counsel suggested that we hear analogously three writ petitions became Petitioners in all these petitions have a common character and are fighting for a common cause and in all these petitions a common grievance is orchestrated impugning validity of a single order. Counsel submitted that the pleadings in writ petition No. 754/84 be treated as common and basic to all the cases. Accordingly in the course of arguments counsel made reference to the Annexures only of Civil Rule No. 754/84. Indeed Respondents 1-3, State of Assam and its instrumentalities, filed a common return in this case. While 4th Respondent. Accountant General, Assam, Shillong, neither filed any return nor entered appearance in any of the cases. Learned Advocate General, Assam, appearing for Respondents 1 to 3 submitted that the return filed in the first case be treated as the common return in all cases.

Altogether 52 teachers of Gauhati Medical College have joined in Civil Ruile No. 754/84 while in Civil Rule No. 770/84 (second case) 37 teachers of the Assam Medical College at Dlbrugarh and in Civil Rule No. 783/84 (third case) 22 teachers of Silchar Medical College have joined the chorus. We may state however that in point of time the Assam Medical College at Dibrugarh is the oldest coming up sometime in 1947 after which came the Gauhati Medical College in 1960 and then Silchar Medical College in 1970. In the Colleges at Dibrugarh and Gauhati there are Post-Graduate level courses and research works are also undertaken. These two Colleges have earned recognition of the Indian Council of Medical Research for carrying out research works. In the rust case the 1st Petitioner is the Principal and Head of the Deptt, of Medicine in the College at Gauhati and the other Petitioners are Professors, Associate Professors and Assistant Professors in different disciplines as also in the other two cases except that Petitioner No. 22 in the third case is the Registrar in the Dentistry Department of the College at Silchar. Most of the Petitioners it is claimed and is also admitted, have high academic qualifications and also training in different disciplines and are generally accepted as "specialists'''' in their respective disciplines.

The comnon case of all the Petitioners in these petitions is that ''Govt. doctors'', even before the establishment in 1947 of the Medical College at Dibrugarh, were allowed private practice, After the College was established, teachers employed therein "like the Petitioners" were allowed to do private practice. The Petitioners used to see patients and they also undertook consultation practice during off duty hours after they joined service under the State Govt. A press communiqu� was issued by the Govt. of Assam on 169-49 (Annexure A) by which fees, rather scale of fees, applicable to different classes of Govt. Medical Officers including Professors and Assistant professors of Assam Medical College at Dibrugarh for visiting patients at their residence were prescribed. This was circulated by the Inspector General of Civil Hospitals of Assam so all Civil Surgeons in Assam as well as to the Principal of Assam Medical College at Dibrugarh on 27-9-49. Petitioners also rely on Annexure-B which is a letter dated 26-4-76 addressed by the Under Secretary to the Govt. of Assam in the Health and Family Planning Deptt. to the Secretary, Medical Council of India, New Delhi, in reply to a query in connection with ''minimum standard requirement for Medical Colleges for admission'' as appears in the caption of the letter. It is stated in this letter that the doctors in all non-clinical Departments of the Medical Colleges In the State of Assam are non practicing ; resident doctors of the clinical Departments are practicing after duty hours and the State Govt. was in favor of maintaining the status quo. In the non-clinical Departments the Professors and Associate Professors were allowed non-practicing allowance (NPA) at the rate of Rs. 200/- p.m. while the Assistant Professors were allowed Rs. 150/-p. m. Resident doctors of Clinical Department as also such as Demonstrators teachers in the non-clintcal Department were entitled to NPA at the rate of Rs. 125/-p. m.

Petitioners relied on a Govt. notification dated 27-1075 (Annexure-C) issued pursuant to the proviso to Article 309 of the Constitution. This notification professes to make "further amendment'''' in Appendix-VII annexed to the Assam Services (Revision of Pay ) Rules, 1975 published with Finance Department notification dated 12-2-75 and it introduced, after the existing entries in the said Appendix under the head "Health and Family Planning Department'''', a new entry, as follows:

Non practicing Allowance: Non practicing allowance Admissible at present to certain clauses or Professors, Assistant Professors and other category of Medical personnel shall continue to be admissible at the existing rates.

Petitioner also relied on a report of a Committee constituted by the Assam Legislative Assembly under the Chairmanship of Dr. T.M. Barus in Jane, 1978, to enquire into matters relating to public health and family welfare, some findings of the Committee with regard to availability of medical facility in the State of Assam are referred in the petition. An important finding of the Committee on which reliance is placed by the Petitioners is that if sufficient number of experienced private specialists were not available and at the same time Govt. Doctors were debarred front doing private practice public at large would suffer, Petitioners also referred to the National Health Policy and submitted that the decision projected in Annexure-D was violative thereof. it is their grievance that the relevant yardstick mentioned in the National Health Policy -availability and dispersal of private practitioners- was not considered by the State Govt. in taking the decision to ban private practice in the State and the decision was, therefore, takes unrealistically in an unreasonable manner. However, the main grievance orchestrated in there petitions is that the impugned has is violative of the fundamental rights of the Petitioners guaranteed to them under Articles 14, 16, 19(1)(g) as well as 300A of the Constitution. Because, Annexure-D was an executive Mat and no law was enacted by the State to ban private practice. TOG further grievance is that the service conditions of the Petitioners were altered to their disadvantage and prejudice without hearing them. The impugned order according to Petitioners, was therefore violative further not only of the provisions of Articles 309 or 16 of the Constitution but also of the principles of natural justice.

What Petitioners challenge before us is the validity of Annexure-B which is a letter dated 12.10.84 addressed to the Accountant General, Assam, Shillong by the Deputy Secretary of the Govt. of Assam in the Health and Family Welfare (D) Deptt. on the subject of "sanction of NPA to the teachers of Medical Colleges''". Petitioners complain that the Respondents have employed an innocuous caption in this letter to impose, they called an unauthorised and illegal blanket ban against private practice which deprives them of their fundamental right to carry on their profession. A copy of this letter was endorsed to too principals of the three Medical Colleges and they were required to bring the matter to the notice of the teaching staff of their respective Colleges. Accordingly, the principal of Gauhati Medical College circulated the letter to all professors, Associate professors, Assistant Professors, Registrars, District Resident Physicians, demonstrators and Anesthetists of the College for information and necessary action. This was done on 18-10-84.

A letter was addressed on 22.10.84 the Gauhati Medical College Teacher''s Association to the Commissioner and ''Secretary to the Govt. or Assam, Health and Family Welfare Department protesting against what they celled "unilateral decision to ban private practice. The letter was signed jointly by (sic) President and the Secretary (Petitioner No. 38) of the Association and a reply within 7 days to the "memorandum" was socialited. The Association assorted that the order banning private practice might force many of the teachers to leave the Colleges which would adversely affect the profession and academic activities of the Institution to the detriment of the medical education, health care and would be, as such, detrimental to public interest. Accordingly, they requested the whole matter to be examined afresh and also prayed the impugned order to be kept (sic) abeyance in the meanwhile. Respondents nave not denied that this letter has remained unreplied. Their stand is that the (sic)tter was nonetheless re-considered. They have relied on a press release published in the Assam Tribune dated 24.11.84. However, to be fair to the Petitioners, we must state that the press-release refers not to the "memorandum" of the Association though it states that the Govt. had decided not to revile the in the petition at para 55 it is asserted that a delegation if the Petitioners waited upon the Chief Minister and the health Minister and also the Commissioner and Secretary of the helth and Family Planning Dept. to request them to revoke the impugned decision but they had no success.

The Petitioners came to this Court 11.12.84 when learned Senior Govt. Advocate, Assam, prayed that the matter any come up the next day. Accordingly, Petitioners'' counsels were beard on 12.12.84 and also learned Advocate General, Assam, Mr. S.N. Bhuyan. Rule nisi was issued after hearing learned Counsel for both sides. On the same date the connected application for interim relief also came up for hearing in Misc. Case No. 814/84. After heaving learned Counsel for both sides this Court, by a reasoned order rendered in the connected Misc. case, stayed operation of Clause 2( A) of Annexure-D which contemplated that "all private practice shall stand banned from 15.10.84 and any violation thereof will entail departmental, action against the doctors". However, the Court granted liberty to the Respondents and/or any person or party or authority or authorities likely to be aggrieved by the order to ask for amendment, alteration and/or cancellation of the order, if so advised. Accordingly, a notice was published in the Assam Tribune dated 2.1.85 by the Petitioners counsel inviting objection to the interim stay granted by this, Court, Pursuant thereto however, no objection was filed in this Court, Before that, on 20.10.84 an application by Respondents 1-3 was filed for vacation the stay order. Eventually, on 10.1.85 upon hearing learned Counsel for both sides this Court decided that the main matter be heard and disposed of expeditiously and that the Civil Rule as well as the stay matter shall come up for hearing on 11.1.17. There after we heard the matters on several dates.

Before setting out the Respondents'' case it behaves us to extract first in extenso, verbatim, para 2 of the impugned order, although the focal point of challenge to the order is to be found in Clauses (A) and (B):

(A) All private practice shall stand banned from 15.10.84 and any violation thereof will entail departmental action against the Doctors.

(B) No Doctor shall work as physician in the Nursing: Home Private clinic/Pharmacy etc. in any capacity.

(C) Services of Specialists and Doctors of Medical Colleges Hospital should be made available 24 hours a day in the Medical Colleges by suitable arrangements.

(D) They should give certificate with the monthly pay bill to the office that they are not doing any private practice or working as Honorary Physician in any Nursing Home/Private Clinic/Pharmacy etc. in any capacity,

(E) Afternoon clinic in the Medical College Hospitals should be introduced immediately.

Indeed, Petitioners'' counsel stated that in no far as Clause (C) and (E) were concerned in principle they accepted the idea and that the Petitioners never refused to extend their co-operation in the matter of implementation of the proposed scheme of Introduction of afternoon clinics.

On behalf of the three Respondents, as alluded, a common return was filed which was supplemented by further affidavits in the course of hearing and records were also filed when the putter was being heard. Indeed, records were supplemented as well in the course of bearing by filling some "appointment patters". Written arguments were filed by learned Advocate General, Assam, in the course of hearing. A two-fold preliminary objection was also taken by him but after the heating fed proceeded to some length, So, therefore, assured him that we shall deal with his objection in our judgment after we beard both sides on all aspects of the case, We considered it unnecessary, rather inappropriate, to trip the hearing into reverse rear merely because we were shown a rumble-strip.

In their return Respondents did not contest seriously correctness of the averments made in the petition in paragraphs 1-6 as respect Petitioners'' academic qualifications and as well as professional achievements and the factual, though not legal, origin of their right to private practice as per Annexures A and B to the petition. That non-practicing allowance was being given not to the Petitioners but to others serving in non clinical Department, such as, Pathology, Anatomy, Physiology, Bio-Chemistry, Pharmacology, Social and Preventive Medicines etc. (as stated in par a 6) was also not contested. Indeed, Respondents'' specific case as stated in para 7 of the return was that 1979 Pay Commission strongly recommended that all teachers of Medical Colleges be completely debarred from private practice by paying them non-practicing (NPA) allowance and that the recommendation was accepted and that this was done by the impugned order dated 12-10-84 is also clear from what is stated para 7 though reference was made to Assam Services (R.O.P.) is Rules 1983, which, however was enacted earlier on 22-7-83, under (sic) proviso to Article 309 of the Constitution. There are also averts that decision to ban private practice was not a sudden one (sic) communication dated 16-3-83 received from Govt. of India Ibis regard was referred for this purpose which, it was father (sic), had the backing not only pf the Union Cabinet in terms (sic) N.H.P. (National Health Policy) recommended by Central Council of Family Welfare but also of Parliament. Because the ban was being enforced in a phased manner, as per N.H.P., it was made applicable at the first stage to the three Medical Colleges in the State and to M.M. Choudhury Hospital at Gauhati. Reliance was placed also on a ''memorandum'' dated 20.8.84 submitted to the State Government by All Junior Doctors Co-ordination Committee. It was also averred that the Governments of U.P. and Orissa had imposed a similar ban and that. reference were made to other State Governments to ascertain the position obtaining in this respect in other States.

Although on both sides several contention ware raised we took the view, as indicated in the beginning, that as the petition can be disposed of on a short point. Accordingly, we proceed to examine Petitioners'' core contention drat in detail which may decide the fate of the petition. As for Respondents preliminary objections, those are reserved for consideration at the end because we found them to be merit less though we must discharge our duty to give reasons for our decision.

1 (A) ARTICLE 19(1) (g)-TRAIT, TEXTURE and TRAIL

The basic question is, what are ''Fundamental Rights'' of Part III ? These, we may atonce say, are nothing but the national version of ''Human Rights''. They are fundamental for a man''s or a citizen''s living a meaningful life and for his meaning full existence. Indeed, after the new World Order was founded in 1945 under the aegis of UNO, the ''Universal Declaration'' came in 1948 propounding the thesis that ''human right shall be protected by the rule of law'' last minis compelled to resort to ''tyranny'' and oppression. Indeed, in Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, the court observed that these rights occupy a unique place in the lives of civilized socio societies reiterating further,that the court in its earlier judgments had variously desired them as ''transcendental'', inalienable'' and ''primordial". This was done however, to stress that ''harmony and balance'' between Fundamental Rights and Directive Principles is an ''essential feature of the basic structure of our Constitution.. No doubt, the Directive Principles also having ''fundamental'' character (as per Act. 37) MUST deemed as fulfilling the mandate of Part-III of the Constitution. Indeed, part IV-A also came to be enacted, in our view to project the nexus legislatively between Parts III and IV. We have no doubt therefore that in the context of the present lis Articles 39(e) and 47 read with Article 51A (g) shed valuable light on the content and texture of the Petitioners right claimed under Article 19(1) (g). In our view a man is entitled to as much compassionate treatment from his fellow being when his life and existence is threatened as any other living creature can claim from a person who has acquired necessary skill and expertise and is able to f mender aid and assistance to any living creature in such a situation. It also bears emphasis that it is the duty of the State to see that life and health of citizens of all ages receive due protection and care in all manners. It is the positive duty of the State to take measures for ''improvement of Public Health as smong its ''primary duties''. Indeed, it all by now become a ''Judicial axiom, that Article 2) guarantees to citizens a dignified life and existence (See Kharak Singh Vs. The State of U.P. and Others, ; Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and the latest Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, Can we, therefore, say that a citizen, who acquired skill and knowledge in any branch of science in order to relieve his fellow creatures of any physical suffering, is deprived totally of the right to employ freely his expertise to discharge his Fundamental Duty because his services are hired by the State. In a nutshell, this is the crux of Petitioners'' grievance. However, the moot question, in our opinion, has a limited range which must be measured in terms of the mandatory requirement of Clause (6) of Article 19, as indeed also of Article 309.

We have no doubt that major premises of the question was answered long ago by the Constitution Bench of the Apex Court in Kameshwar Prasad and Others Vs. The State of Bihar and Another, The court repelled the argument holding the same to be unrealistically oblivious of the provisions of Clauses (5) and (6) when it was contended that so long a person was in Govt. service be would not be entitled to practice any profession or trade and, therefore, freedoms guaranteed under Article 19 were not available to a Government servant. This, we find in para 10 of .the judgment. While in paras 1 and 12 the Court also considered other aspects of the question and held that Constitution did not exclude Government servants as a class from the protection of several rights guaranteed by several Articles in Part III because those who were specifically excluded were also specifically named in Article 33 or even. in Article 22. It is true that Kameswar Prasad (supra) marks out the ambit and purport only of Clauses (a) and (b) of Article 19(1) and also of the connected Clause (2) of Article 19 but the holding or the decision has, undoubtedly, a broad base and wide implications which embraced the fact-situation of the present lis. Another Constitution Bench of the Court, later in O.K. Ghosh and Another Vs. E.X. Joseph, buttressed Kameswar Prasad reiterating the ''undisputed'' premises that ''fundamental rights guaranteed by Article 19 can be claimed by Government servants'' noting that Article 33 conferred powers on the Parliament to modify the right in their application to the Armed Forces.

However, as early as in 1969, the question which we are called upon to consider in this case-banning of private practice by Government Doctors had come up before the Division Bench of Andhra Pradesh High Court and the Court speaking through v. Jaganmohan Reddy, C.J. (as his Lordship that was) observed that fundamental rights are not lost when a citizen accepts Government service and tint in regulating the conditions of his service, reasonable restrictions may be imposed for securing efficiency, honesty, impartiality, discipline and like qualities. A Medical Officer who joins Government service is free to exercise his professional skill in his spare time for the benefit of the public unless any restriction is placed upon him by rules governing his conditions of service (see Ramesh Pal v. State ILR (1969) A.P. 1152). The court struck down relevant clause of certain statutory rules which it found to be not in ''public interest'' and also arbitrary or discriminatory or unreasonable so as to offend Clause (6) of Article 19

A similar view was taken by the Allahabad High Court in Dr. Y.P. Singh and Others, etc. Vs. State of U.P. and Others, wherein also the vires of the law imposing the ban was challenged but in this case without success. The case came up before T.S. Misra, J. (as his Lordship then was) on a difference between two Hon''ble Judges of the Division Bench of that Court when his Lordship upheld the relevant provisions taking the view that the restrictions imposed were reasonable and were not violative of the rights of the Petitioner under Article 19(1) (g), The relevant rules were framed under the proviso to Act. 309 restricting, private practice of teachers of the Medical Colleges of the State. It was held that a Government servant being a citizen be remained entitled to the freedoms guaranteed by Article 19 but the Court was not precluded from considering of reasonableness of the restriction imposed on his right to Carry on any occupation or profession in virtue of what was stated in Clause (6) of Article 19

Learned Advocate General, Assam, has, however, placed implicit reliance on the decision of their Lordships of the Supreme Court in Fertiliser Copooration Kamagar Union (AIR 1981 SC 344), wherein the Court was required also to consider the scope and ambit of Article 19(1)(g). However, in our view, the reliance is misplaced, Because, the questions agitated before their Lordships carried a different complexion, The workers claimed that closure of the establishment in which they were for the time being employed, infringed their fundamental right to carry on occupation guaranteed under Article 19(1)(g). The plea was negatived and the Court held that nit of certain plants equipments of the factory wherein the workmen were employed rosy at the highest, affect their locus, but It did not affect their loom to Work as industrial workers. Indeed, what appears dear to us is that the crux of grievance of the Petitioners in that case was deprivation or denial of ''right to work'' which evidently is not guaranteed under Article 19(1)(g). Indeed this position is manifested in Article 41 itself. We have no hesitation to say that the decisions rendered by the A.P. and Allahabad High Courts are ''not indented by this decision and we also say that we are in respectful agreement with the views of the said High Courts ''that ''Government doctors'' do possess fundamental right to practice their profession subject of course to the restrictions that might be imposed under Clause (6) of Article 19 of the Constitution.

(B) IN THE TRAIL OF CLAUSB (6) OF ARTICLE 19

Whether, therefore, there exists any "law" answering to the requirement of Clause (6) of Article 19 to support the impugned order is the pivotal question to which we must first address ourselves. Indeed, only when such a law is tracked down then the question of the reasonableness or relevance of the restrictions imposed in the terms of the impugned order would become a live question to be investigated. Should it be found that the said order was a pure and simple executive fiat then the second question would evidently be of academic value and would not call for any answer in the instant case.

Learned Advocate General claimed legitimacy for the Impugned order relying on several sources which we propose to examine seriatim. First, we would like to dispose a short submission made by him on the basis of "appointment letter" of some of the Petitioners as this contentions in our opinion, merits a summary disposal. The contention is, in none of the appointment letters placed before us we would find any right "conferred'''' on them to undertake private practice and that if at any time earlier any teacher of any Medical College in the State was allowed private practice it was a "privilege" allowed to him, which the grantor could legitimately withdraw at any time in any manner as be considered appropriate- The short wd solid answer to this appear in what we have already stated above and need not therefore be restated. We have held that at ''''professionals" the Petitioners hive fundamental right to practice their profession in any manner they choose subject only to the limitation of Clause (6); the right to curry in any manner their profession need not be "conferred" en them though the same may be regulated, but only by "law", Indeed, as held in Roshan Lal Tandon Vs. Union of India (UOI), though the origin of Government service is contractual in that there is offer and acceptance in every case, once he is appointed to his post or office the Government servant acquires a "status" and his rights and obligations are no longer determinable by convert of parties out only by statute or statutory rules. Petitioners'' coadunation too that the appointment letters did not explicitly exclude the right to private practice would not also, in our opinion, have much relevance in the context of the present discussion.

We may as well dispose similarly his second contention, albeit of unequivocal dimension, because reliance is placed by both sides on Clause (10) of the 1983 National Health Policy Statement (NHP), which we extract:

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-practicing 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.

Learned Advocate General submitted that NHP not only projected national consensus but it also had Parliament''s approval. He also submitted that the impugned order was based merely to implement NHP and relied on some communications received from the Government of India to buttress his submission. Annexure-II to the return, on which strong reliance is placed, a ''circular letter'' dated 16.3.83 addressed by the Joint Secretary the Ministry of Health and Family Welfare Deptt. Govt. India, to Health Secretaries of all States with copies marked to the Finance Secretaries of the States. In this letter, Clause (10) is extracted and the necessity of "Abolition of Private Practice by Government Doctors" is stressed. Their should be done, it said, by suitable grant of additional emoluments or allowances or revision of pay scales as may be deemed necessary". A suggestion was also preferred in the letter to approach the 8th Finance Commission for inclusion of non-practicing allowance payable to Government Doctors as a compensation for the withdrawal of the private practice facility. Petitioners contended, as alluded in the beginning, that NHP-clause (10) merely stressed the necessity to "phase out" the system of private practice regard being had to "the availability and dispersal of private practitioner and it carried no mandate to take resort to any unconstitutional act or to an arbitrary, unrealistic or unreasonable executive action. Though on the question of reasonableness of the action there was a voluminous exchange of affidavits, rejoinders and statements and the parties contested the issue vigorously, we do not propose to dwell thereon for the simple reason that neither NHP nor the communications relied on by the ''plate state can claim the character of "law'''' envisaged under clause(6) of Article 19. This position is patent and transparent. It need not be demonstrated laboriously to be so as the term "law" cannot embrace within its ambit anything short of an ''enactment. We do not, therefore, propose to examine the question whether Clause (10) NHP fulfils the mandate of Article 47 or even of Article 39 (e) inasmuch as even if NHP was placed before parliament or the august body bad ''approved'' the same, the policy statement of NHP was not admittedly enacted by Parliament as "law". It does not find place in the Statute Book any form even as a subordinate legislation. The term "exciting law" which also occurs in Clause (6) of Article 19 is defined in Clause (iv) of Article 366 and the term "law" must, in our opinion, carry similar connotation. Respondents cannot, therefore, rely on the NHP or the communications to answer the charge of violation of the mandate of Clause (6) of Article 19 in so far as Clauses (A) and (B) para 2 of the impugned order is concerned.

Respondents third contention is indeed based on certain statutory rules which we may now examine. Our attention is drawn to certain provisions of the Assam Fundamental Rules which are F.R. 9(5), 11, 46, 46(a), 46A and 47. Next we are referred to the certain provisions of Assam Government Servants'' Conduct Rules 1937 and the Civil Services (Conduct) Rules 1965, About Assam Services Revision of Pay) Rules 1983 on which also reliance was placed, we do not propose to say anything at this stage as we shall examine that matter separately. However, we nay avis now state that all statutory rules bearing on the subject matter must be harmonized. Much emphasis was laid on F.R. 9 (5) and 11 the but interpretation of these rules suggested by the learned Advocate General is negatived by F. Rs. 46 (a) and 47 to which primacy must be accorded to understand the purport of F.R. 11. As a bare reading of these rules make the position clear, we extract them verbatim:

F.R. 9(5) Compensatory allowance means an allowance granted to meet personal expenditure necessitated by this special circumstances in which duty is performed. It includes a traveling allowance, but does not includes a sumptuary allowance nor the right of a free passage by see to or from any place outside India.

F.R. 11-Unless in any case it be otherwise distinctly provided, the whole time of Government servant is a the disposal of the Government which pays him, and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the, see vices requited of him are such as would ordinarily (sic) remunerated from a local fund, from the funds of a (sic) incorporated or not, which is wholly or substantially (sic) or controlled by the Government or from the fur(sic) an Autonomous District Council.

F.R.46(a) Fees-Subject to any rules made under Rule 46 A und Rule 47, a Government servant may be permitted if this can be done without detriment to his official duties and responsibilities, to perform a specified service or series of services for a private person or body or for a public body including a body administering a local fund and to receive a remuneration therefore, if the service be material, a non-recurring or recurring fee.

Note-This clause does not apply to the acceptance of fees by medical officers in civil employ for professional attendance which is regulated by the orders of the Secretary of State.

F.R. 47-The Provincial Government may make rules prescribing the conditions and limits, subject to which authorities subordinate to it may sanction the grant or acceptance of honoraria, end the acceptance of fees, other than the acceptance of fees by medical officers in civil employ for professional attendance.

F.Rs. 46(a) and 47 find place in Chapter v. which deals with the subject of ''''Additions to pay" and are grouped under the caption "Honoraria", Their object and purpose is obviously ''enabling, enabling rules to be framed for certain cases. But no rules are placed before us; indeed, not even any "order'''' contemplated under the note to F.R. 46(a).

Still, we are of the opinion that learned Advocate General''s, reliance on F.R. 47 is apparently misplaced. If it proves any-thing it is that "acceptance of fees by medical officers in civil employ for professional attendance" was allowed under the Rules themselves. We have also no doubt that the statutory note to F.R. 46(a) projects the same position. It needs no argument therefore to hold also that F.R. 9(5) and F.R. 11 face out a relevance as well as prominence in as much as the case of the Petitioners is taken care of by the note to F.R. 46. (a) The emphasis on the expression "Whole time of a Government servant is at the disposal of the Government" looses much of as charm because of what if provided in F.R. 46(a) and in the opening words of F.R. U itself-"unless In any case it -he otherwise distinctly provided". That apart, we have no doubt that the words, "whole time" do not carry such implication as may mean that a Government servant is bound to render 24 hours service. It only implies, according to us, the power of the Government to fix and regulate the duty hours of a Government servant.

It appears clear to us that none of the F. Rs. relied support the view that they carry any positive mandate for "restrictions" contemplated under Clause (6) of Article 19 on the right of ''Government doctors'' to private practice. However, inasmuch as F.R. 11 does contemplate Government''s right to regulate the duty hours of Government servants, generally, in our opinion, it does save Clause (C) of para 2 of the, impugned order as it speaks of "suitable arrangement". All teachers in all Medical Colleges in the State do not admittedly stay and indeed no accommodation is provided to them, in the college campus and Clause (C) does not also impose a condition that they must stay in the campus. We have no doubt that what is proposed to be done is to simulate the duty hours of several specialists in different disciplines in a "suitable" and reasonable manner in order that the proposed afternoon clinics may function properly and efficiently, In this connection we may state that the decision in Babulal Parate Vs. State of Maharashtra and Others, is high authority for the proposition that "restrictions'''' imposed, by general law do attract Clause (6), In tie instant ease Petitioners have mother challenged the vires of F.R. 11 nor they have seriously contested the validity of Clauses (C) and (E) of the impugned order so as to necessitate consideration by this Court of the reasonableness of the provisions embodied therein.

Let us examine the Rules of 1937 and 1965 referred above. These obviously relate generally to ''conduct'' of the Government servant and have therefore a different objective in view-an object other than fixing the pay, allowances or even duty-hours of a Government servant, It is true that they also appertained the ''Service Conditions'' of a Government servant but concerning really matters of discipline and efficiency. However, we have no doubt that these rules are not in derogation of the provisions of the Assam Fundamental Rules or of other law in force, Rule 14 of 1937 Conduct Rules contemplate that ''no Government servant shall except with the previous sanction of the Provincial Government, engage in any trade or undertake any employment or work, others than of his official duty''. However, Rule 12 of 1965 Conduct pities has an elaborate form though in so for us the purport of the two rules is concerned we do not find any difference. There is only a verbal change in Sub-rule (1) of Rule 12 which prohibits a Government servant to ''engage directly or indirectly in any trade or business or undertake any other employment''. Sub-rule (4) of Rule 12 contemplates that ''no Government servant may accept any fee for any work done by him for public or private person without the sanction of the prescribed authority. We have no doubt that neither the Rule 14 nor the new Rule 12 can in any manner be said to impose ''restrictions'' in terms of Clause (6) of Article 19 on the fundamental rights of the Petitioners guaranteed to them under Article 19(1)(g). Indeed, there is no reference at all these rules to the activity concerning practice of any profession what it overtly interdicts is ''private trade or employment by government servant'', We find it extremely difficult to accept learned Advocate General''s contention, that the term ''employment and/or ''work'' should be construed by us to ban practice of a profession. Black''s Law Dictionary gives meaning of the word procession as-''a vocation, calling, occupation or employment involving labour, skill, education, special knowledge....'' - which indicates that a mere ''employment'' or any ''work'' by any person does not embrace the concept of a ''profession''. In our opinion practice of a profession is entirely a different and independent concept and Constitution makers were well aware of this position and had therefore made provision accordingly in Article 19(1)(g) to entrench the right relating thereto as a fundamental right. We have not an iota of doubt that the general terms ''employment'' and ''work'' are not relatable to the concept of practice of a profession for which the second part of Clause (6) itself embodies a constitutional mandate for statutory provision to be enacted inscribing ''professional or technical'' qualification. It also bears emphasis that freedom to choose a profession under Article 19(1) inheres in it the freedom to carry on the profession subject only to such restrictions as may be imposed any law contemplated under the first part of Clause (6) of "''Article 19, curtailing in a "reasonable" manner choice of action to enjoy the freedom.

We have no hesitation to say further that Clauses (A) and (B) of para 2 of the impugned order manifest a blanket ban and embody a new service-condition totally eclipsing the freedom of choice of action of a particular class of ''Government doctors in the matter of carrying on their procession ; it does and indeed cannot, draw sustenance from Rules 12 and 14 of the Conduct Rules (old/new), Because, these rules, as observed, touch merely disciplinary and enforcement aspects generally, albeit of all classes of Government servants concerning all types of" cases ; they do not embody any substantive service-condition for any particular class of Government servant and do not also deal either with any particular fact-situation or class of cases. Therefore, as these rules may not at all be relatable to Clause (6) or Article 19, they do not save Clauses (A) and (B) of para 2. of the impugned order. We must not, however, forget that new service-condition for any category of Government servants may be validly and unilaterally crested, but by a specific enactment under Article 309 to dial particularly with the eases envisaged. General support for this proposition, if needed, is to he found in Roshanlal (supra).

It is Respondent own case that "non-practicing'''' (NP) allowance was being paid to a specified category of teachers of the Medical College, namely, teachers in non-clinical Department and this was done by making provision therefore in the successive Revision of Pay Rules (R.O.P. Rules) enacted since 1964, pursuant to the provisions of Article 309 of the Constitution. What was the necessity or rather compulsion for this exercise ? Evidently, because by payment of N.P. allowance the fundamental right of the beneficiaries (a class of medical practioners), to enjoy freedom of profession, which included the right to "private practice", was taken away. It was a compensation for surrendering a part of their freedom of profession by the beneficiaries. A statutory measure had to be enacted to satisfy the constitutional imperative in terms of Clause (6) of Article 19. Indeed, when 1973 Pay Commission recoromeneded discontinuance of the prevalent practice of payment of N. P. allowance to the specified category of teachers and 1975 R.O.P. Rules were accordingly enacted, it was only by an amendment of the Rules made on 27.10.75, as alluded in the beginning, that the allowance was restored to maintain ''status quo, However, later, although 1979 Pay Commission''s recommendation was accepted by the State Government to ban private practice totally, while enacting 1983 R.O.P. Rules, no provisision at all was made for non-payment of N.P. Allowance despite recommendation to the contrary specifying amounts payable to different categories of teachers of Medical Colleges. The Government resolution dealing with the Commission''s report, published under Notification No. FPC. 49/82/93 dated 27.6.1983, merely indicated ''that ''''those who are already in receipt of non-practicing allowance, may draw the non-practicing allowance at the revised rates with effect from 1st September, 1982 and the incumbents of new categories of posts who will come under the purview of this scheme will be entitled to the non-practicing allowance from the date of enforcing the ban on private practice on the line of the recommendation of the Pay Commission."

We have no doubt that the fatal flaw lies in the aforesaid resolution which in irremediable. Because, the resolution unwittingly but illegally dispensed thy necessity of enacting a ''law'' to ban private practice as a new service-condition by providing adequate N.P. allowance as a compensatory measure. Indeed, instead of amending the 1983 R.O.P. Rules, following the 1975 precedent, the State Government now choose to achieve the objective by passing the impugned order (Annevure-D) which falls far short of the Constitutional imperative. Implicit reliance on Pay Commission recommendation and even NHP cannot avail the Respondents in this regard us none could direct and Indeed none factually directed that "Law" need not be enacted to provide for N.P. allowance. Learned Advocate General, Assam, also pressed for our consideration the thesis of ''unoccupied filed'' to suggest that in the absence of statutory enactment as to N.P. allowance in 1983 R.O.P. Rules, impugned order filed its place and be cited decision to support his contention. We, however, have little difficulty to dismiss his contention. Firstly, the thesis has no basis for application in the context of the clear constitutional mandate of the first part of Clause (6) of Article 19. This position is well established by plethora of high authority and we cannot accept purposeless caviling (see, Yasin AIR 1952 SC 113 ; Bishan Dass AIR 1970 SC 1570: Thakur Bharat Singh AIR 1967 SC 1170; Bishambar Dayal AIR 1980 SC 33 ,43/44). Secondly, we do not in fact see any unoccupied field in 1983 R.O.P. Rules. The service- conditions of all teachers of Medical Colleges in terms of revised pay scales was duly fixed deliberately omitting N.P. allowance. This only meant, according to us that no compensation for loss of private practice was provided and therefore in some cases the existing right to private practice was maintained and in other cases the pro-existing right, whatever be its character, was restored'' Any change in this situation could only mean introduction of a new service condition in its place. Reliance, therefore, by learned Advocate General, on the decisions in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, or even on Dr. Satyabrata Dutta Choudhury Vs. State of Assam and Others, must be held therefore, to be inapposite and misplaced. Indeed, in both cases operation of Article 162 in the context not of Article 19(1)(g) or Clause (6) thereof but of Article 16(1) was in issue and the complexion of the lis was obviously different. Indeed, Article 16(1) has an entirely different purport proscribing equally legislative acts and executive actions (under Article 162) impinging on equality of opportunity in the matter of public employment.

Because reliance was also placed on certain provisions of the Indian Medical Council Act, 1956, and Assam Medical Council Act, 1916 we turn sow to them to deal with learned Advocate General''s contention bated thereon. Although very many provisions were referred, a two fold legal contention was pressed on their basis. Relying mainly on Section 15(2), Clauses (a) and (b) as well as Sections 20A, 21 and 27 of 1956 (Central) Act and the Section 16, 20, 21, 29 and 31 of 1916 (Assam) Act, learned Advocate General made bold to assert to the extent that the Petitioners had no fundamental right to act as medical practitioners inasmuch as the statutory provisions negatived such a plea and supported state''s contention that they had merely a ''privilege"" to act as such which was ''conferred on them by the said enactments. We have no hesitation at all to summarily reject the contention in view of what we have already held. Yet we may only say that some of the provisions relied on may rather be considered as answering the requirement of the second part, though not first part, of Clause (6) of Article 19. The object end purport of the statutory provisions relied on may be referable'' to ''professional'' and ''technical'' qualifications constitutionally envisaged ; they were not, and cannot be, in derogation of the constitutional right embodied in Article 19(1)(g) and they contemplate no ''restrictions'' in terms of the first part of Clause (6).

The second limb of Mr. Bhuyan''s argument, though more pointed, is also, according to us, equally fallacious. He refers us to the provisions of Section 19A and 33(K) of 1956 (Central) Act and para 2 of "General remarks" appearing at page 15 of the publication entitled "Medical Council of India ; Minimum Standard Requirement for a Medical College etc.'' We ought to construe, learned Advocate General submitted, the statements therein at para 2, as "law" contemplated under the first part of Clause (6) of Article 19 to support the impugned order. To do full justice to his contention we extract in extenso pra 2:

The teaching staff of all departments of a medical college shall be whole-time and non-practicing. In institutions where part-time/hony, teachers arc employed in clinical departments, they should be replaced by whole-time teachers by 1977. In the meantime, mob part-time/hony, teachers will only be recognised as teacher provided they put in not less than 4 hours clinical and teaching duties per day in one teaching institution.

That the above statement is not the last word is not denied. Indeed, materials were placed before us to show that (sic) time- limit of 1977 inscribed therein has been extended till 1985. But, we feel no hesitation to say that para 2 carries a mandate of "minimum standard" in terms of Section 19A, as respects "granting recognised medical qualifications by Universities" and may therefore be relatable if at all, only to the second part of Clause (6) of Article 19.

Another argument of Mr. Bhuyan invoking what he called "pleasure theory" projected as an amalgam of Articles 162 and 310, still remains to be considered. According to us this contention merits a summary disposal for more than one reason. Firstly, the minimum mandate of Clause (6) of Article 19 submits no exception. It prevails over and against Articles 162 and (sic). In this connection we have already referred to Yasin et (and) and we need only refer to State of Mysore v. Padmanabhacharya AIR 1966 SC 603 which deals with the ambit and purport of the proviso to Article 309. Indeed, Article 310 (1)- the main repository of so called pleasure theory-open with the words "Except as expressly provided by this Constitution'''' to which fail effect must be given. Evidently tie first exception is Article (sic) (including tie proviso) which also is saddled similarly with in opening clause "subject to the provisions of this Constitution''''.

In the instant case, the impugned order is admittedly not issued under the proviso to Article 309 while in Padmanabhachar ya (supra) Governor''s notification (impugned therein) was so issued. The Constitution Bench held that power to regulate service condition of Govt. servants has to be found in the proviso and as the notification potentially infringed Article 311 it must be held ultra vires the proviso, True, the court also said that the purport or the notification was not relatable to the proviso. We do not read anything in either Article 162 or Article 310(1) to suggest that by any executive order any service-condition of a Government servant can be altered to his disadvantage. To hold to the contrary would be destructive of the purpose and object of Article 309. The theory that the proviso to Article 309 merely gives effect to Article 163-we find wholly unacceptable, Reliance on Ram jawaya AIR 1955 SC 349 or on para 22 of Bishambar Dayal (supra) is patently unsound as the theory has no roots in them.

II-NATURAL JUSTICE FOR GROUPS: PARTICIPATORY JUSTICE

Novelty of Petitioners'' second and only other contention which we propose to consider is projected is a short and simple question, notwithstanding its boundless ramifications and edifications. Do individuals cease to be so when they tie affected adversely in a group? When their group right is indented by any infringement of principles of natural justice, can they impugn any executive action? What is the constituency of the principles of natural justice ? etc. Admittedly the impugned order is an executive act. It adversely affects civil rights of a particular category of teachers of the Medical College of the State and all Doctors of M.M. Choudhury Hospital though the latter have not joined orchestrating in this petition the common grievance. Admittedly, Petitioners have not been heard before the order was rendered. They have also not been given a postdecisional hearing on their ''corporate'' representation in that no order is rendered thereon. Can the Petitioners invoke the (sic) of the developing administrative law in our participatory democracy to impugn Executive action condemning them unheard ? These are some of the diverse questions which have surfaced for (sic) consideration though all these questions coverage to the same focal point. According to us, the focus is the vioe of the impugned order and not the character of plurality of its victims. A (sic) answer, in our opinion, should seal the diffusive emanations. State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, and A.K. Kraipak and Others Vs. Union of India (UOI) and Others, Provide the clue. Binapani, a Govt. Doctor. had challenged her superannuation claiming infringement of Service Rules framed under Article 309. The court held, "the rule that a party to whose prejudice an order is intended to be passed is entitled to a bearing aplies alike to judicial Tribunal and bodies of persons invested with authority to adjudicate upon matter involving civil consequences". This rule was approved by the Constitution Bench (sic) Kraipak and the contenders again were Government servants. That the ''principles'' merely vocalised and enforced Rule of law was pithily but forcefully stated'' "the concept of rule of law would lose its vitality if the instrumentalities of the State (sic) not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. Since Chief Justice Coke decided in 1610 Dr. Bonhan''s case rendering void a parliamentary statute under which authorities of College of Physicians claimed power to fine and imprison the Doctor for practicing in the city of London without licence, the ''principles'' have acquired gradually several new dimensions to match the evolving concept of participatory democracy. Indeed, Wade makes hold to say-" the decision which is made without bias, and with proper consideration of the views of those affected by it will not only be acceptable: it will also be of better quality". If wade could also say-"justice and efficiency go hand in hand"- we have efficient justification (as functional votaries of constitutional values and norms) to say that participatory justice is potently immerging as a viable norm of complex process of participatory democracy and it is best suited to take care of group rights, (see, Administrative Law, 5th edn. p. 414).

Petitioners counsel relied on S.L. Kapur v. Jagmohan AIR 1981 SC 131 to suggest that the principles of natural notice has for its constituency ''any person'' - he may be an individual), a body-corporate or a group. It is the "unfair'''' action which the ''principles'' nullify, whosoever be the victim expansion of New Delhi Municipal Committee which was challenged M violative of principles of natural justice was held illegal as the action was taken without hearing the Committee. The court held as follows at para 16 of the report;

In our view, the requirements of natural justice arc met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in u casual way or for some other purpose.

However, the locus classics is Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, on the basis of which we were invited to expose the hidden aspect of the ''principles''. At para 55 of the report the majority speaking through Krishna Iyer, J., observed that:the requirement of "notice and opportunity" which were the very marrow of the ''principle was so Integral to good Government that the onus lay on him, who urged exclusion these of, to establish the premises; mere "Irritating inconvenience of the man in authority would not sustain exclusion of the ''principles''. At para 57 much more is said on the argument of inconvenience 1 based on largeness of the constituency (of victims), But what,; is further stated at para 55 bears extraction:

Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man''s case disposed of unheard, a chorus of ''non-confidence" will be beard to say, ''that man had no '' chance to defend his stand

Liberty Oil Mills and Others Vs. Union of India (UOI) and Others, was also pressed in service. Disparate circumstances requiring in some cases ''pre'' and in other cases ''post'' decisional hearing were considered in that case in reference albeit to a statutory provision. The court he''d that persons to whom licences (to import beef tallow) were granted or allotment made may have arranged their affairs on that basis and entered into transaction with others. To such persons disastrous consequence was likely to ensue if their licences were suspended without bearing them. In the instant case also it was sublimed, the Petitioners hid severally arranged their affair not only with respect to single or few circumstances or transactions but their entire lives and also those of their families depending on the income of private Practice. In order that they could re-arrange their affairs they should have been given opportunity to place their respective eaten no that a mutually acceptable solution could be evolved Jo a manner as would also serve public interest.

Learned Advocate General relied on Bishnu Ram Borah and Another Vs. Parag Saikia and Others, to submit that the Petitioners having no manner of ''right'' but only ''privilege'' to private practice they were not entitled to any hearing before the privilege was withdrawn. Grant of liquor license was not a matter of ''right'' but it was in the nature of a privilege und that there would be no denial of the ''principles'' if an advance report was considered by the settling authority without disclosing the same to the tenderer. This indeed, is one of the ratios of the decision. However, for the sole reason that instant Petitioner'' right to private practice we have held to be a part of their fundamental right to practice their profession, reliance on the decision. In our opinion, does not avail the Respondents. Are the ''principles'' germane only to the concept of due process'' obtaining to USA and therefore the various manifestations thereof may not be available for Indian litigant ''? Learned Advocate General relied on certain, passages appearing at pages 20/-108 of Professor Ghwar zand Wade''s Legal Control of Government-Administrative Law in Britain and the United States. We do not read anything new in the statement of law which the Learned authors have enunciated. Because, It it also their view that the American Due Process ''was essentially a requirement of notice and tearing'' and that this corresponds to the common law maxim audit alter an parten. O. Hood Phillips'' Constitutional and Administrative Law (sixth edition) was also pressed in service. Indeed, at pages 602-04 of the treatise under the caption ''principles of natural justice'', on which reliance is placed, the same view is taken and primary of the maxim just adverted is stressed by referring to the evolutionary trend noticed in Ridga v. Baldwin ( 1964 AC 40) et al.

In the instant case, we may recapitulate that the impugned order was passed without hearing any of the Petitioners. It came in the form of an executive fiat addressed to the 4tb Respondent (Accountant General, Assam) though it affected adversely each of the Petitioners in so far as their conditions of services were concerned. The mere fact that the character of the change sought to be brought about by it was the same in so far the Respondents were concerned cannot be at all relevant in so far as the right to hearing of each of the Petitioners was concerned. The impact of the change on serial Petitioners manifest itself in disparate fashion according to circumstances each of them entailing different civil consequences in case of each of them. There was no urgency and indeed none has been shown to us lo exist, which required the impugned order to be passed hurriedly without hearing the Petitioners on the proposed action. Why even a post decisional bearing could not be given on their representation is also not made clear to us. Admittedly, the representation remains un replied unattended and un disposed as no order disposing the state has been placed before us. A representation dt. 20-8-84 of Assam Junior Doctors'' Co-ordination Committee wan admittedly considered by the Respondents in rendering the impugned order to the prejudice of the Petitioners and yet they were not heard on that representation or even on the implication of NHP or the ''communications'' (referred earlier) received from the Govt. of India though all these form the basis of the impugned order. We have no doubt, therefore, that the Petitioners grievance of violation of principles of natural justice is justified.

THE RUMBLE STRIP

It behaves us to give reasons reserved earlier to say why we crossed without pause the sumble strip. We were asked to stall hearing because Union of India was not imp leaded at a party-Respondent. We were also told that ''joint petition'' violated a Rule of this Court as also a judicial opinion. In so far as the first point was concerned we had no doubt that Union of India was not a necessary party because the legality, validity or impropriety of N.H.P. was not challenged by the Petitioners, who, on the other hand, contended that the impugned order was violative of Clause (10) of N.H.P. Accordingly, we took the view that it would not be necessary to pronounce on the validity of N.H.P. and as held in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, even if Union of India was a proper though not necessary party we exercised our discretion not to implead the Union as there was no controversy, in any case we were not dispored to decide the same, in so far as N.H.P. was concerned. That the Union was not a necessary party is apparent on the holdiog of Udit Narain in that on the validity of the impugned order and effective decision can be rendered in the absence of the Union.

Now, about the objection as to joint petition based albeit on Ch. VA of Gauhati High Court Rules which deals with writ applications and of which Rule I contains the following provision on which reliance is placed:

Separate application should be filed for each individual where interests are not identical even if there is one common order covering several cases and the facts of each should be separately supported by affidavit.

The question is, whether the provision is mandatory. Our answer is, not. Because, the Court has discretion to waive compliance therewith in view of opining words of Rule 9 of the same chapter, indeed, the provision does not even carry a mandate in it that an application not in conformity thereto must be dismissed. Rule 3 contemplates. "Unless the Court sees no sufficient cause to admit the application and rejects it "...."We have little doubt that the language used in the provision itself projects vocally its discretionary nature. It is when "interests" are not identical that separate applications are contemplated even though there is a common order because the facts of the case of each individual may be different and the provision does not, in any manner, impinge upon jurisdictional competence of the Court carrying in It tin inexorable conclusion, or even a mandate to the court, so as to invest it with a mandatory character.

Reliance was placed on a decision of a learned Single Judge of this Court in Civil Rule No. 672 of 1981 Joynath Dey v. State of Assam decided on 10.8.81. In that case a joint writ petition was dismissed on the ground that it violated the above Rule because "cases'''' of the several Petitioners were not identical. However, there being an appeal against the order which is pending disposal, we would not say anything on the merit of the decision though we feel disposed to take a different view of the above Rule. Our attention was however drawn in this connection by Petitioners counsel to beach decisions of this Court reported in AIR 1971 Gau 74 (Ngurohiazao v. S.D.O.) and AIR 1972 Gau. 205 (Konchio v. State of Nagaland) wherein the court, without albeit referring to the Rule, rejected a similer objection as to maintainability of a ''joint petition''.

Indeed our interpretation of Rule 1 hearken to the call of access to justice which is the constitutional mandate inscribed in Article 39A. It does away, in our view strict adherence to processual jurisprudence of individualist angio-saxon mould. We are attuned indeed to the tone set by the Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, from which we extract the golden precept found at para 63 of the report:

Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy.

CONCLUSIONS

Clauses (A) and (B) of para 2 of the impugned order (Annexure-D) is violative of Article 19(1)(g) because the action envisaged therein is a purely executive action and is not supported by any legislative measure, Accordingly, we hold the same to be unconstitutional, illegal and void. We also hold that the impugned order which contemplates a blanket ban on ''private'' practice'' in so far as such Petitioners as are teachers in the Clinical Department in three Medical Colleges of Assam arc concerned, to be violative of the principles of natural justice and there fore illegal and void.

In the result these three petitions are allowed to the extent indicated and the rules are made absolute. But, in the facts and circumstances of the care we make no order as to costs.

A Post Script: Both of us had to be away for long as well as short spells, from the Principal Seat for holding circuit court in outlying Benches immediately on conclusion of the bearing of these petitions. This has delayed delivery of judgment which cause must be placed on record.

Manisana, J.

I have very carefully gone through the opinion prepared by my learned brother. With a great respect I find myself unable to agree with my learned brother on certain aspects of the view expressed by my learned brother. I would, therefore like to state my reasons.

All the relevant facts and the rival contentions have been clearly set out by my learned brother and therefore, it is not necessary for me to repeat them here.

1. The question which arises for consideration is whether to practice medicine or to practice as a medical practitioner is a fundamental right under Article 19(1)(g) of the Constitution. Section 27 or the Indian Medical Council Act, 1956, the ''Act'' for short, provides:

Privileges of persons who are enrolled on the Indian Medical Register-Subject to the conditions and restrictions laid in this Act regarding medical practice by persons possessing certain recognised medical qualifications, every person whose name is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practice as a medical practitioner in any part of India and to recover In due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances or any fief to which he may be entitled.

(emphasis added)

The entitlement or the right to practice as a medical practitioner u/s 47 of "Act" is subject to the conditions and restrictions under the "Act''. For example, Section 24 of the ''Act'' provides for the removal of the name of a doctor from the Indian Medical Register. If the name of the doctor enrolled on the Indian Medical Register maintained under the "Act" is removed there from then a doctor cannot do medical practice. Section 15 of the "Act'' runs:

Right of persons possessing qualifications in the Schedules to be enrolled,-

(1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.

(2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register,-

(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;

(b) shall practice medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;

(d) shall be entitled to give evidence at any inquest or in any Court of Law as in expert u/s 45 of the Evidence Act, 1872 or on any matter relating to medicine.

(3) Any person who acts in contravention of any provision of Sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(Emphasis added)

The Section 25 mentioned in Section 15 quoted above relates to the "provisional Registration". Section 15(1) provides for qualification for enrolment on any State Medical Register, u/s 15(2), no person shall bold any office mentioned in 15(2) (a) or practice medicine or practice as Medical practitioner in any State, unless his name is enrolled on a State Medical Register as a Medical practitioner, save as provided in Section 25, Section 15(3) is a penal provision in case of violation of any of the provisions of Section 15(2). Therefore, the right to carry on profession of a doctor or to practice as medical practitioner or to practice medicine is created by the "Act", As such the exercise of that right is subject to the terms and conditions imposed by the "Act". Right to practice and the duties of a doctor are regulated by the "Act" and Rules or Regulations framed there under. All citizens shall have the fundamental rights under Article 19(1)(g) but they cannot claim as a matter of fundamental right to work as doctors or to practice medicine or to practice as medical practitioners.

2. In view of the discussion above, a person who has obtained the requisite medical qualifications is not entitled on that ground alone to a right to practice medicine or to work as a doctor or to practice as a medical practitioner. He must, further, be enrolled on a State Medical Register and/or Indian Medical Register as the case may be, before the person could practice medicine as aforesaid. That is a matter which is regulated by the "Act and the Rules or Regulations framed there under. The right to practice depends on the terms and conditions under the "Act" and the Rules or Regulations framed there under. This right is also a privilege at it is limited to those who are enrolled on the registers aforesaid. In the marginal note and/or Section 27 of the "Act" the expression "privilege of persons" It also used. The right to practice medicine is conferred on a person by the "Act". Article 19(1)(g) merely protects the right a person possesses under the Act. It does not create any new right in him. The "Act" prescribes not only the professional or technical qualifications necessary for practicing medicine under Article 19(6)(i), but also regulates rights and duties of a medical practitioner. The exercise of the right to practice medicine is subject to the terms and the conditions imposed by the "Act" and Rules and Regulations framed there under. In view of the Patter, in the instant case the right to practice medicine or to work as a doctor is not a fundamental right under Article 19(1)(g) of the Constitution but a statutory right under the "Act".

44.3. With regards to the "private practice", it is not disputed at the bar that the Petitioners are Government servants and have been doing "private practice" in a limited way mostly, during their off hours (office hours) to the knowledge of the Government of Assam and the Government of Assam has been acknowledging the "private practice" and that the ''''private practice" constitute conditions of service. The right of "private practice'''' in the context of the case constitutes the conditions of service for the reason that fixation of pay and allowance of the teachers of the medical colleges in Assam and other Government doctors is dependant on the teachers and other Government doctors permitted to do "private practice". This view is also confirmed by the resolutions of the Government of Assam dt. 12.2.1975 and 27.6.1983 relating to non-practicing allowances and rules relating to the Assam Service (Revision pf Pay) Rules placed before us, which show that fixation of pay and allowances depends upon the Government doctors permitted to do "private practice". As the ''''private practice" constitutes the conditions of service, the emolument and the terms and conditions of their service will be governed by rules relating to their service. The conditions of service relating to the "private practice" can be altered in accordance with law. Though the origin of the Government service is contractual, the position of a Government servant is more of status than of a contract. The right of "private practice'' has been existing from 1947 till now it is an existing right of the Petitioners. It is not a new right created under Article 19(1)(g) which came into force on 26-1-1950. The Petitioners cannot claim such conditions of service as a matter of fundamental right. How the conditions of service can be altered u a totally different aspect or question. This view of mine is supported by a decision of the Supreme Court in Devata Prasad Singh Chaudhuri and Others Vs. The Hon''ble The Chief Justice and Judges of the Patna High Court, In that case, the Supreme Court while considering the right of Makhtars under Sections 9 and 11 of the Legal Practitioners Act and the Article 19(1)(g), has held that the right of practice as Mukhtar is created by statute viz, the Legal Practitioners Act and Rules framed there under and as such, Mukhtur cannot complain of the violation of his right to practice as Mukhtar as his fundamental right as the exercise of such a right is subject to the terms and the conditions imposed of by statute. In Ranganwami AIR 1954 Mad 553 and Jagjit AIR 1954 Hyd 28, it has also been held that if the exercise of a right is subject to the terms and the conditions imposed by law, then no fundamental right infringed. The contention put forward by the Petitioners that the right or "private practice'''' is a fundamental right, therefore, cannot be accepted. However, other fundamental rights may be vailable to the Petitioners.

44.4 In Kameshwar Prasad and Others Vs. The State of Bihar and Another, the Supreme Court has held that the Government servants as a class are not excluded from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named by reason merely of their being Government servants and the nature and incident of the duties which they have to discharge in that capacity might necessarily involve certain restrictions of freedom. The Supreme Court has further held that a Government servant has no right to resort strike but any law prohibiting "any form of demonstration" is violative of the rights under Article 19(1)(a) and 19(1)(b) of the Constitution. The Supreme Court has also not discussed the "Act". In Kameswar (supra) the case is of Government servants in general. The case before as is of a special class of Government Medical Officers. Therefore the decision of the Supreme Court in Kameswar Prasad (supra) does not help the Petitioners. In view of the discussion above I with due respect express my inability to agree with the decision in Dr. Y.P. Singh AIR 1982 All, and Ramesh Pal ILR (1969) A.P. 1152.

The next question which arises for convocation is whether conditions of service of the Petitioners renting to the "private practice'''' can be changed unilaterally by an executive order. The learned Counsel for the Petitioners, Shri J.P. Bhattacharjee, Advocate General, Nigaland, has referred us to a decision of the Supreme Court in Roshan Lal Tandon Vs. Union of India (UOI), In Roshanlal the Supreme Court has held that although the origin of the Government service is contractual, the legal relationship of rights and duties between the Government and the Govt. servant is imposed by the public law and not by mere agreement of the Parties. The emoluments and the terms of service of the Government servant are governed by statute or statutory rules which may be unilaterally altered by the Government without any content of the employee. In Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis, the Supreme Court has observed that the cases of a statutory status of an employee can also form the subject matter of protection of the rights of an employee under the statute. The statutory scheme of employment was held to confer on the employees a status. An unlawful act of the employer was found to be interference with the status. Our attention has also been drawn by the learned Advocate General, Assam to Rule 12(4) of the Assam Civil Service (Conduct) Rules, 1965, for short the "Conduct Rules", and rules 11, 46 A and 47 of the Fundamental Rules, for short the "FR", applicable to all the Govt. servants in Assam. The "Conduct Rules" have repeaed old rules corresponding to the "Conduct Rules".FRs. 46, 46A and 47 are not applicable to the Petitioners as those rules relate to the fees other than professional attendance. Rule 12(4) of the "Conduct Rules" is also concerned with the conduct of Government servants, and not with the conditions of service. What is left is whether the provisions in FR 11 will be applicable in the present case. FR 11 runs as follows:

Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Govt. which pays him and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the service required of him are such as would ordinarily be remunerated from a local fund, from the funds of a body, incorporated or not, which is wholly or substantially owned or controlled by the Govt. or from the funds of in Autonomous District Council.

(Emphasis added).

The object of FR 11 is taking measures to meet the exigencies of the difficult period-for example, epidemic, foods etc. Under FIR 11 a Government servant "may be employed in any manner required". In view of the provision under FR. 11, a Government servant of the lowest grade having no educational qualification can be appointed as a Heart Surgeon. If such appointment in made, there will be killings of large number of people. How, ever, this is not object of FR 11. Therefore, FR 11 is for the emergency purposes, and not for enhancing condition of service. Be that as it may, the impugned order/letter is also not an order/ letter issued under FR 11. Under FR 11 payment of ''''additional remuneration" is not provided. In the instant case, the payment of allowance known as "non-practicing allowance" is provided. Therefore, this impugned order/letter is not an order/letter issued under FR 11. Under the circumstances,'' the FR 11 does not help the Respondents. Therefore, It is concluded that the impugned order/letter illegally interferes with the status and that the conditions of the service of the Petitioners cannot be altered in the manner that has been done in the instant case. In view of the discussion above, the contention of the Petitioners that the conditions of service relating to the "private practice" cannot be altered by the impugned order/letter, is accepted.

On the facts and in the circumstances of the cases, I reserve my view as regards to the rival contentions relating the principles of natural justice. With regards to preliminary objections to the non-joinder of the "Union of India'''' as one of the Respondents and as to the "joint petition" I respectfully agree with the views arrived at by my learned brother.

Some of the teachers arid the Government doctors of MMC Hospital have not challenged the impugned order/letter.

For the foregoing reasons the impugned order (Annexure-D) is unlawful and interferes with the status of the Petitioners. Accordingly, the impugned order (Annexure-D) in so far as the Petitioners are concerned is quashed ; and the three petitions are allowed to the extent indicated above and the rules are made absolute. There will be no order as to costs on the facts and in the circumstance of the case. Delivery of the judgment has been delayed for the reasons recorded by my learned brother.