Rajendra Babu, J. - (1.) "Thou shall not prescribe, but treat". Does this commandment stand the test of legal scrutiny This is the stark and simple question to be decided in this case.
(2.) Thelong-winded facts of this case read as follows : That about 337 persons, including the appellants had completed the diploma course of Community Medical Service in duly recognized institutions in the State of West Bengal and were posted in different parts of the State by the Government of West Bengal. On October 15, 1980 vide Notification No. Health/MA/7076/5M-5/80 the Government of West Bengal made an amendment in the Statute of the State Medical Faculty by introducing Article 6-F under Part B, which reads verbatim as under : "6-F : Students who will undergo and complete the requisite course of studies in Medicine/Medical Science (as defined and detailed in the Schedule to this article and hereinafter called as the said Regulations for the Diploma course in Community Medical Services) in Medical Institutions, duly recognized by the State Medical Faculty of West Bengal, shall be admitted into examinations in the subjects laid down in the said regulations and the students passing the examinations shall be granted Diploma with the abbreviation "Dip. C.M.S", by the Governing body of the aforesaid Faculty. The Governing Body of the aforesaid Faculty shall also maintain a Register of such Diploma holders with a view to regulating, supervising and restricting their practice for the present." The objective of the said Notification, as detailed therein, is as follows : "1. Objectives : i). To provide medical training to a group of personnel to man the Health Centres and Subsidiary Health Centres. ii). Emphasis is to be given on comprehensive Health Care of the Community including promotive, preventive and curative aspects. iii). A candidate after successfully completing the course of studies will act as a Team Leader of various categories of Field Workers. iv). Training in curative medicines is to be imparted in such a way that after completion of training the trainees can treat common diseases among rural population including communicable diseases, malnutritional states, snake bite, insecticidal poisoning etc. Instructions on diseases requiring sophisticated treatment not practicable in Health Centres will be restricted to the barest minimum. However, such candidates should learn to recognize sign and symptoms of more serious diseases requiring special treatment at referral hospitals (e.g., Sub-divisional or District Hospital) so that such patients may be sent early to these institutions. v). The training in promotive and preventive aspect of Health Care including Family Planning and Child Care should be undertaken by actual participation in the field work under the supervision of their teachers along with the field workers. vi). A substantial part of the training will be conducted in Health Centres where they will reside along with their teacher in each term of their course so that they are exposed to the field condition from the beginning of their course."
(3.) On 23-6-1987, the Government of West Bengal issued a Corrigendum and the Diploma that was earlier known as Diploma in Medicine for Community Physicians was rechristened as Diploma in Community Medical Service. Apprehending that the re-naming would have a detrimental effect on their rights, the appellants filed W.P. No. 7052/89 in the Calcutta High Court. The said Writ Petition was disposed of by the learned single Judge on the assurance given by the Government Pleader that the State was willing to award the Diploma in Community Medical Service to the successful candidates. It was also assured by the State, in the said petition that it would provide jobs to such candidates in accordance with the stated policy of the Government. The learned single Judge of the High Court made it clear that the Diploma holders will not have the right to private practice and that part of the order was not challenged by the appellants at all and entry in the register is only for the right to prescribe medicines and issue certificates.;