HEMANT KUMAR VERMA & ORS. versus EMPLOYEES STATE INSURANCE CORPORATION & ORS. on 22 July 2022

1. The respondent - Employees State Insurance Corporation[1] - isa statutory body created under the Employees’ State Insurance Act 1948[2].Act 18 of 2010 inserted Section 59(B) in the Act of 1948 which stipulatesthat the Corporation may establish medical colleges, nursing colleges,and training institutions for its employees to improving the quality ofservices provided under the Employees’ State Insurance Scheme. Thepetitioners are junior residents who have completed their undergraduatemedical course at medical institutions run by the ESIC. Undergraduatemedical students pursuing their education in institutions conducted bythe ESIC have to serve in the institutions as junior residents. Thepetitioners were required to serve a five year bond as junior residents.

2. The respondent-institutions recruit Insurance Medical OfficersGrade-II[3] through a written examination followed by an interview. ESICprovides a fifty per cent reservation for “in-service” doctors in the post-graduate seats available in medical institutions run by ESIC. While thepost of IMO-II is included within the ambit of ‘in-service’ doctors, thejunior doctors are not. The respondent issued a notice on 10 November2021 inviting applications from eligible ‘in-service’ doctors of ESI Medicalcolleges. The petitioners made representations on 11 February 2022, 4

1 “ESIC/ respondent-institute”

2 “Act of 1948"

3 ‘IMO-II”

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1 “ESIC/ respondent-institute”

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AMarch 2022, and 25 April 2022 to the respondent-institution seeking tobe considered in the ‘in-service’ quota for DNB courses. Since therewas no response from the respondent-institution, the petitioners haveinvoked the jurisdiction of this Court under Article 32. The petitioners’have sought the following prayers:

B “(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,Cdirection to the Respondents to extend the 50% “in-service”doctors reservation for PG courses to the Junior Resident Doctorsserving in ESIC/ESIS institutions.”

3. The grievance of the petitioners is that that junior resident doctorsand persons working as IMO-II possess the same qualifications,Dentitlements, duties, and responsibilities. However, while reservation inpostgraduate education is provided to the latter in the “in-service”category, it is not provided to the former.

4. The Deputy Medical Commissioner (Medical Education) hasfiled an affidavit before this Court on behalf of the respondent explainingEthe distinction between the junior resident doctors, such as the petitioners,and the regular medical officers who are recruited by the ESIC. Theaffidavit states as follows:

(i) Candidates who pursue their undergraduate degree coursesin these colleges are required to execute a bond to serve theFESIC hospitals for a stipulated period. Until 2017, the periodof the bond was five years, after which it was reduced tothree years.

(ii) By a Memorandum dated 28 July 2020, the period of the bondwas reduced to one year for undergraduate MBBS/BDSstudents at the ESIC medical and dental colleges. Para 2 ofGthe Memorandum, inter alia, contains the following stipulation:

“2.The reduction in Bond duration and Bond amount wouldbe prospective per-se, but in the following manner:

2.1The benefit of reduced Bond period & Bond amount inHlieu, would also be extended to (i) all existing students HEMANT KUMAR VERMA v. EMPLOYEES STATE INSURANCECORPORATION [DR DHANANJAYA Y CHANDRACHUD, J.]

(MBBS/BDS); (ii) Fresh UG (MBBS/BDS) pass-outs;and (ii) UG (MBBS/BDS) pass-outs already serving ESICunder Bond.

2.2In case of pass-outs already serving under Bond, if thelength of service rendered is in excess of 01 year, theymay be relieved without payment to ESIC for left overBond period.”

(iii) The petitioners completed their one year compulsory bondperiod between 2019 and 2020. Though they were not underany compulsion to serve beyond a year, as stipulated in theMemorandum dated 28 July 2020, they have continued to serveof their own volition.

(iv) The petitioners cannot be equated to IMO-II doctors to claimthe 50% reservation available to ‘in-service’ doctors for thefollowing reasons:

(a) Regular medical officers in ESIC are recruited by advertisingvacancies through the Recruitment Regulations of the post; (b) The petitioners were serving the bond condition aftercompletion 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 andCondition of Service Regulations 1959. The leave and otherentitlements of the junior resident doctors are as stipulated inthe ESIC Residency Scheme. A revised ESIC ResidencyScheme was issued on 24 November 2020. Therefore, themedical officers and the junior residents are recruited underand are governed by distinct regulations.

5. We have heard Mr Sachin Patil, counsel appearing on behalf ofthe petitioners and Mr Manish Kumar Saran, counsel appearing on behalfof the respondents.

6. The contention of the petitioners is two-fold. One, the juniorresidents are ‘in-service’ doctors. They must thus be treated on paritywith IMO-II doctors for the provision of reservation benefits. Thequalification, entitlement, duties, responsibilities, and pay scale of thejunior residents and IMO-II doctors are the same. The only difference A

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Abetween the two categories is the mode of appointment. While the juniorresidents 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 institutionson institutional preference. The Courts have recognized reservationthrough institutional preference in post-Graduate medical education inBSaurabh Chaudri v. Union of India[4] and Yatin Kuma Jasubahi v.State of Gujarat[5].

7. The petitioners completed their undergraduate courses fromESIC medical/dental colleges and have already served out their oneyear compulsory bond period. The reduction in the bond period whichCwas brought about on 28 July 2020 was also extended to all existingstudents as well as undergraduate (MBBS/BDS) pass-outs who wereserving ESIC under bond. In view of the Memorandum dated 28 July2020, it was open to the petitioners to leave after the completion of oneyear of junior residency.D8. On 2 February 2018, the revised ESIC Residency Scheme forUG pass-outs was issued. The scheme provides that the duties andresponsibilities of the junior residents will be fixed by the competentauthority. It mentions that “they will be required to perform such workas may be needed in the legitimate interest of patient care in ESI healthsystem (ESIS/ESIC) including Hospitals and dispensaries anywhere inEIndia.” The memorandum further states that the pay structure for thejunior residents is similar to the scale for the junior residents under theCentral Residency Scheme. The IMO-II doctors are governed by theESIC Staff and Condition of Service Regulations 1959. The crucialdifference between junior residents and IMO- II is that while the formerFis a contractual post where the doctors are employed directly due to thebond condition on the completion of the MBBS degree, the latter is apermanent post. Therefore, the mode of appointment and tenure of theposts vary. The IMO-IIs’ who pursue their post graduate education asin-service candidates will serve the respondent institution after completion of their post-graduate course. However, in the case of junior residents,Gsince they are contractual employees who are serving the bond, theyare not bound to serve the respondent-institution after the completion oftheir post-graduate studies. The reservation for in-service candidates isan incentive and an added benefit to the IMO-II doctors who will be4 (2003) 11 SCC 146H5 (2019) 10 SCC 1

serving in the respondent-institution till superannuation. In suchcircumstances, the argument of the petitioners that the junior residentsand IMO-II doctors are at par with each other for the former to betreated as “in-service” doctors does not hold merit.

9. In Saurabh Chaudri (supra), a Constitution Bench of this Courtapproved reservation based on ‘institutional preference’ as set out inPradeep Jain v. Union of India[6]. In Yatin Kuma Jasubahi (supra), awrit petition was filed challenging institutional preference in admissionto postgraduate medical courses. It was the contention of the petitioners,in that case, that though institutional reservation had been upheld by thisCourt in Pradeep Jain (supra) and Saurabh Chaudri (supra), it wouldnot be permissible because of the introduction of an All India examinationin the form of NEET. Rejecting this argument, the three-Judge Bench ofthis Court held that post- graduate medical admissions through institutionalpreference are only made to candidates based on the rank received inthe NEET examination. This Court in Saurabh Chaudri (supra) andPradeep Jain (supra) held that institutional preference in post-graduatemedical admissions is permissible and constitutional. However, this Courtcannot issue a mandamus directing the respondent to conduct admissionsthrough institutional preference. The decision of whether or not to provideinstitutional preference solely lies with the respondent-authority since itfalls within the realm of policy.

10. On the above premises, there is a clear distinction in lawbetween junior resident doctors and regularly recruited ESIC doctors.The in-service quota is, therefore, justifiably made available to the lattercategory. The petitioners cannot claim parity with regularly recruitedinsurance medical officers in seeking the benefit of the in-service quota.

11. For the above reasons, we find no merit in the petition. Thepetition is, accordingly, dismissed.

12. Pending application, if any, stands disposed of.

Ankit Gyan

Petition dismissed.

(Assisted by : Rahul Rathi, LCRA)

6 (1984) 3 SCC 654

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