- (1.) U. P. Singh, A. C. J. In the teeth of the judgment rendered by the Supreme Court in the case of Ram Kishan Datta Roy v. State of West Bengal, (1993) 3 SCC 724, these various petitioner in their overzealous attempt have challenged the validity of the impugned Rules of 1983 and 1990 (contained in Annexure-XIII and Annexure-I to the Amendment applica tion) on the same grounds which were repelled and rejected by the Supreme Court in the above case.
(2.) THESE various petitioners in all these petitions are either Pro fessors, Readers or Lecturers and Specialists in the State Medical Colleges, established and maintained by the State of Uttar Pradesh. They are Gazetted Government servants of the State. In all these writ petitions similar contentions have been raised and common ground has been put forward challenging the validity of these Rules, and, therefore, they have been heard together and are being disposed of by this common judgment. The Rules under challenge are Uttar Pradesh Government Doctors (Alopathic) Restrictions on Private Practice Rules, 1983. Subsequently, by an amendment application, the petitioners challenged the validity of Rule 24 of the Rules of 1990, called "uttar Pradesh Rajya Chikitsak Mahavidyalaya Adhyapakon Ki Sewa Niyamavali, 1990", by which a total ban on the private practice of the petitioners was imposed and it provided that "members of the service shall not be permitted private practice. "
(3.) A brief history of the facts embodied in various Government Orders and Ruks prior to coming into force of 1983 and 1990 Rules may be noticed. In its communication dated 3rd January, 1973 addressed to the Director, Medical Health and Service, the Commissioner and Secretary of the Government of Uttar Pradesh stated that the Governor has been pleased to order that w. e. f. 1st February, 1973, the teachers of all State Medical Colleges and the State Medical Officers including the officers working on ex-cadre posts shall cease to do the private practice. All posts shall be treated as the non-practicing post w. e. f. 1-2-1973 (Annexure-2 ). According to this letter such doctors were to get non-practicing pay and pay clinic. Rules were to be established in the State Medical Colleges, District level Hospitals and other Hospitals approved by the State Government and for which, separate orders were to be issued regarding the establishment and scheme of pay clinic. According to the statement made in paragraph 42 of the writ petition, the scheme of pay clinic was to start from 15-5-1973. However, the State Government reconsidered the restrictions imposed on private practice as well as the scheme of pay clinic and by G. O. dated 22nd February, 1974 the Government superseded all the earlier G. Os. by which the private practice were restricted and the pay clinics were sought to be started w. e. f. 1-1-1974. By this G. O. dated 22nd February, 1974 (contained m Annexure-VIli) the scheme banning the private practice and discontinued the facility of private practice was again allowed in regard to the post in which it was allowed prior to March, 1973. Subsequently on 28-2-1978 the Government issued another G. O. imposing ban on private practice w. e. f. 1-3-1978 and non-practicing allowance was made payable w. e. f. 1-3-1978 with certain conditions. The validity of the aforesaid G. O. of 1978 was challenged in the High Court and several writ petitions were filed (Writ Petition No. 2250 of 1978 etc. ). On account of difference of opinion between the two Hon'ble Judges of the Division Bench, the matter was referred to a third Hon'ble Judge. During the pendency of the reference before the third Hon'ble Judge the State Government substituted the aforesaid G. O. by a rule made under Article 309 of the Constitution. These Rules were called Uttar Pradesh Government Doctors (Alopathic) Restrictions on Private Practice Rules, 1978 (Annexure-X ). In the amendment applica tion, the validity of the aforesaid Rules of 1978 was also challenged as ultra vires of the Constitution on the ground that the said Rule was outside the legislative competence of the State and was also outside the ambit of Article 309 of the Constitution, inasmuch as, that it did not relate to the conditions of service. The Division Bench by its judgment dated 5-7-1979 rejected these additional grounds relating to the validity of the Rules. Thereafter, the judgment of the Division Bench dated 5-7-1979 was again sent to third Hon'ble Judge Mr. Justice T. S. Misra for his opinion. The said Hon'ble Judge Sri T. S. Misra held the Rules to be valid. The petition was then placed before the Division Bsnch and following the decision of Justice T. S. Misra, the petition was rejected on 1-4-1982. The said judgment is reported in AIR 1982 Allahabad 437, Dr. Y. P. Singh v. State of U. P.;