HEMANT KUMAR VERMA & ORS.versusEMPLOYEES STATE INSURANCE CORPORATION & ORS.

184                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 184                  [2022] 7 S.C.R.


A                     HEMANT KUMAR VERMA & ORS.
                                          v.
        EMPLOYEES STATE INSURANCE CORPORATION & ORS.
                       (Writ Petition (Civil) No. 444 of 2022)
B                                  JULY 22, 2022
               [DR DHANANJAYA Y CHANDRACHUD AND
                        A. S. BOPANNA, JJ.]
             Service Law – Reservation in Post Graduate Medical Course
      – Junior Resident Doctors and Regular ESIC Doctors – Petitioners
C
      are Junior Resident doctors – The respondent-ESIC recruits
      Insurance Medical Officers Grade-II (IMO-II) through written
      examination and interview – ESIC provides a fifty per cent
      reservation for “in-service” doctors in the post-graduate seats in
      institutions run by ESIC – While the post of IMO-II is included within
D     the ambit of ‘in-service’ doctors, the junior doctors are not – ESIC
      invited applications from ‘in-service’ doctors of ESI Medical colleges
      – The petitioner made several representations to the respondent for
      consideration in the ‘in-service’ quota – Since, there was no response
      from the respondent, the petitioners approached Supreme Court – Held:
      The crucial difference between junior residents and IMO- II is that
E
      while the former is a contractual post where the doctors are employed
      directly due to the bond condition on the completion of the MBBS
      degree, the latter is a permanent post – The reservation for
      ‘in-service’ candidates is an incentive and an added benefit to the
      IMO-II doctors who will be serving in the respondent-institution till
F     superannuation – There is a clear distinction in law between junior
      resident doctors and regularly recruited ESIC doctors – The
      ‘in-service’ quota is, therefore, justifiably made available to the latter
      category – The petitioners cannot claim parity with regularly
      recruited insurance medical officers in seeking the benefit of the
      in-service quota.
G
            Saurabh Chaudri v. Union of India (2003) 11 SCC 146
            : [2003] 5 Suppl. SCR 152 – followed.
            Yatin Kuma Jasubahi v. State of Gujarat (2019) 10 SCC
            1 : [2019] 12 SCR 848; Pradeep Jain v. Union of India
H           (1984) 3 SCC 654 : [1984] 3 SCR 942 - relied on.
                                     184
    HEMANT KUMAR VERMA v. EMPLOYEES STATE INSURANCE                            185
                    CORPORATION

                            Case Law Reference                                 A
[2003] 5 Suppl. SCR 152              followed               Para 6
[2019] 12 SCR 848                    relied on              Para 6
[1984] 3 SCR 942                     relied on              Para 9
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.                   B
444 of 2022.
       Under Article 32 of The Constitution of India
       Sachin Patil, Geo Joseph, Risvi Muhammed, Advs. for the
Petitioners.
                                                                               C
     Manish Kumar Saran, Shivam Singh, Nirvikar Singh, Harsh
Choudhary, Advs. for the Respondents.
       The Judgment of the Court was delivered by
       DR DHANANJAYA Y CHANDRACHUD, J.
                                                                               D
       1. The respondent - Employees State Insurance Corporation1 - is
a statutory body created under the Employees’ State Insurance Act 19482.
Act 18 of 2010 inserted Section 59(B) in the Act of 1948 which stipulates
that the Corporation may establish medical colleges, nursing colleges,
and training institutions for its employees to improving the quality of
services provided under the Employees’ State Insurance Scheme. The             E
petitioners are junior residents who have completed their undergraduate
medical course at medical institutions run by the ESIC. Undergraduate
medical students pursuing their education in institutions conducted by
the ESIC have to serve in the institutions as junior residents. The
petitioners were required to serve a five year bond as junior residents.       F
       2. The respondent-institutions recruit Insurance Medical Officers
Grade-II3 through a written examination followed by an interview. ESIC
provides a fifty per cent reservation for “in-service” doctors in the post-
graduate seats available in medical institutions run by ESIC. While the
post of IMO-II is included within the ambit of ‘in-service’ doctors, the       G
junior doctors are not. The respondent issued a notice on 10 November
2021 inviting applications from eligible ‘in-service’ doctors of ESI Medical
colleges. The petitioners made representations on 11 February 2022, 4
1
  “ESIC/ respondent-institute”
2
  “Act of 1948"
3
  ‘IMO-II”                                                                     H
186             SUPREME COURT REPORTS                             [2022] 7 S.C.R.


A     March 2022, and 25 April 2022 to the respondent-institution seeking to
      be considered in the ‘in-service’ quota for DNB courses. Since there
      was no response from the respondent-institution, the petitioners have
      invoked the jurisdiction of this Court under Article 32. The petitioners’
      have sought the following prayers:
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,
C            direction to the Respondents to extend the 50% “in-service”
             doctors reservation for PG courses to the Junior Resident Doctors
             serving in ESIC/ESIS institutions.”
             3. The grievance of the petitioners is that that junior resident doctors
      and persons working as IMO-II possess the same qualifications,
D     entitlements, duties, and responsibilities. However, while reservation in
      postgraduate education is provided to the latter in the “in-service”
      category, it is not provided to the former.
             4. The Deputy Medical Commissioner (Medical Education) has
      filed an affidavit before this Court on behalf of the respondent explaining
E     the distinction between the junior resident doctors, such as the petitioners,
      and the regular medical officers who are recruited by the ESIC. The
      affidavit states as follows:
             (i) Candidates who pursue their undergraduate degree courses
                 in these colleges are required to execute a bond to serve the
F                ESIC hospitals for a stipulated period. Until 2017, the period
                 of the bond was five years, after which it was reduced to
                 three years.
             (ii) By a Memorandum dated 28 July 2020, the period of the bond
                  was reduced to one year for undergraduate MBBS/BDS
                  students at the ESIC medical and dental colleges. Para 2 of
G
                  the Memorandum, inter alia, contains the following stipulation:
                “2.    The reduction in Bond duration and Bond amount would
                       be prospective per-se, but in the following manner:
                2.1    The benefit of reduced Bond period & Bond amount in
H                      lieu, would also be extended to (i) all existing students
  HEMANT KUMAR VERMA v. EMPLOYEES STATE INSURANCE                            187
   CORPORATION [DR DHANANJAYA Y CHANDRACHUD, J.]

                (MBBS/BDS); (ii) Fresh UG (MBBS/BDS) pass-outs;              A
                and (ii) UG (MBBS/BDS) pass-outs already serving ESIC
                under Bond.
          2.2   In case of pass-outs already serving under Bond, if the
                length of service rendered is in excess of 01 year, they
                may be relieved without payment to ESIC for left over        B
                Bond period.”
      (iii) The petitioners completed their one year compulsory bond
            period between 2019 and 2020. Though they were not under
            any compulsion to serve beyond a year, as stipulated in the
            Memorandum dated 28 July 2020, they have continued to serve      C
            of their own volition.
      (iv) The petitioners cannot be equated to IMO-II doctors to claim
           the 50% reservation available to ‘in-service’ doctors for the
           following reasons:
      (a) Regular medical officers in ESIC are recruited by advertising      D
          vacancies through the Recruitment Regulations of the post;
      (b) The petitioners were serving the bond condition after
          completion of their studies in ESIC medical colleges. Thus,
          they are not recruited and cannot be called in-service doctors;
          and                                                                E
      (c) The medical officers are governed by the ESIC Staff and
          Condition of Service Regulations 1959. The leave and other
          entitlements of the junior resident doctors are as stipulated in
          the ESIC Residency Scheme. A revised ESIC Residency
          Scheme was issued on 24 November 2020. Therefore, the              F
          medical officers and the junior residents are recruited under
          and are governed by distinct regulations.
       5. We have heard Mr Sachin Patil, counsel appearing on behalf of
the petitioners and Mr Manish Kumar Saran, counsel appearing on behalf
of the respondents.                                                          G
       6. The contention of the petitioners is two-fold. One, the junior
residents are ‘in-service’ doctors. They must thus be treated on parity
with IMO-II doctors for the provision of reservation benefits. The
qualification, entitlement, duties, responsibilities, and pay scale of the
junior residents and IMO-II doctors are the same. The only difference        H
188               SUPREME COURT REPORTS                         [2022] 7 S.C.R.


A     between the two categories is the mode of appointment. While the junior
      residents are appointed directly because of the bond that they are serving,
      the IMO-II doctors are appointed through a selection process. Two,
      junior residents are eligible for 50% reservation in respondent institutions
      on institutional preference. The Courts have recognized reservation
      through institutional preference in post-Graduate medical education in
B
      Saurabh Chaudri v. Union of India4 and Yatin Kuma Jasubahi v.
      State of Gujarat5.
             7. The petitioners completed their undergraduate courses from
      ESIC medical/dental colleges and have already served out their one
      year compulsory bond period. The reduction in the bond period which
C     was brought about on 28 July 2020 was also extended to all existing
      students as well as undergraduate (MBBS/BDS) pass-outs who were
      serving ESIC under bond. In view of the Memorandum dated 28 July
      2020, it was open to the petitioners to leave after the completion of one
      year of junior residency.
D            8. On 2 February 2018, the revised ESIC Residency Scheme for
      UG pass-outs was issued. The scheme provides that the duties and
      responsibilities of the junior residents will be fixed by the competent
      authority. It mentions that “they will be required to perform such work
      as may be needed in the legitimate interest of patient care in ESI health
      system (ESIS/ESIC) including Hospitals and dispensaries anywhere in
E     India.” The memorandum further states that the pay structure for the
      junior residents is similar to the scale for the junior residents under the
      Central Residency Scheme. The IMO-II doctors are governed by the
      ESIC Staff and Condition of Service Regulations 1959. The crucial
      difference between junior residents and IMO- II is that while the former
F     is a contractual post where the doctors are employed directly due to the
      bond condition on the completion of the MBBS degree, the latter is a
      permanent post. Therefore, the mode of appointment and tenure of the
      posts vary. The IMO-IIs’ who pursue their post graduate education as
      in-service candidates will serve the respondent institution after completion
      of their post-graduate course. However, in the case of junior residents,
G     since they are contractual employees who are serving the bond, they
      are not bound to serve the respondent-institution after the completion of
      their post-graduate studies. The reservation for in-service candidates is
      an incentive and an added benefit to the IMO-II doctors who will be
      4
          (2003) 11 SCC 146
      5
H         (2019) 10 SCC 1
     HEMANT KUMAR VERMA v. EMPLOYEES STATE INSURANCE                             189
      CORPORATION [DR DHANANJAYA Y CHANDRACHUD, J.]

serving in the respondent-institution till superannuation. In such               A
circumstances, the argument of the petitioners that the junior residents
and IMO-II doctors are at par with each other for the former to be
treated as “in-service” doctors does not hold merit.
        9. In Saurabh Chaudri (supra), a Constitution Bench of this Court
approved reservation based on ‘institutional preference’ as set out in           B
Pradeep Jain v. Union of India6. In Yatin Kuma Jasubahi (supra), a
writ petition was filed challenging institutional preference in admission
to postgraduate medical courses. It was the contention of the petitioners,
in that case, that though institutional reservation had been upheld by this
Court in Pradeep Jain (supra) and Saurabh Chaudri (supra), it would
not be permissible because of the introduction of an All India examination       C
in the form of NEET. Rejecting this argument, the three-Judge Bench of
this Court held that post- graduate medical admissions through institutional
preference are only made to candidates based on the rank received in
the NEET examination. This Court in Saurabh Chaudri (supra) and
Pradeep Jain (supra) held that institutional preference in post-graduate         D
medical admissions is permissible and constitutional. However, this Court
cannot issue a mandamus directing the respondent to conduct admissions
through institutional preference. The decision of whether or not to provide
institutional preference solely lies with the respondent-authority since it
falls within the realm of policy.
        10. On the above premises, there is a clear distinction in law           E
between junior resident doctors and regularly recruited ESIC doctors.
The in-service quota is, therefore, justifiably made available to the latter
category. The petitioners cannot claim parity with regularly recruited
insurance medical officers in seeking the benefit of the in-service quota.
        11. For the above reasons, we find no merit in the petition. The         F
petition is, accordingly, dismissed.
        12. Pending application, if any, stands disposed of.

Ankit Gyan                                                 Petition dismissed.
(Assisted by : Rahul Rathi, LCRA)                                                G




6
    (1984) 3 SCC 654                                                             H