JUDGMENT [ENTITY], J.
1. The writ petitioners, who are 49 in number are all members of the medical profession and are working for gain at Calcutta National Medical College and Hospital at 32, Gorachand Road, Calcutta-14, and they are all exmanagement staff and serving the said Medical College and Hospital before taking over of the management of the Hospital by the State of West Bengal with effect from June 9, 1967.
2. By [ACT] (hereinafter referred to as the 1967 Act), the Calcutta National Medical College and Hospital was taken over to make better provision for the control, management and maintenance of the institution together with the hospitals and dispensaries attached thereto initially for a period of 10 years with effect from June 9, 1967.
3. In view of [SECTION] of the said 1967 Act, the institution was directed to be run by the State Government, as a State institution and [SECTION] of the said 1967 Act, empowered the State Government to frame rules to provide the terms and conditions of service of the persons employed in the said institution. [SECTION] provides that until rules are framed under [SECTION], persons employed in the institution shall continue to remain under the terms and conditions of service in force immediately before the "appointed day". There was no specific grades of pay, in the institution for the petitioners during the private management and no specific service rules to guide the service of the petitioners and the petitioners used to get monthly allowance varying from Rs. 50 to Rs. 215 and according to the petitioners, they took the said salaries on the spirit of service to the nation and they were allowed to have 'private practice" and/or other attachments beyond their duty hours, in the institution and their age of retirement was 60 years with the option to further 3 years thereafter, on the recommendation of the then management,
4. The [ACT], was published by Notification dated February 13, 1968 (hereinafter referred to as the said 1967 Rules). By the said Rules, the Government made three classes amongst the existing employees of the said institution :
1st Category : Those employees, who will opt for the terms and conditions of service applicable to a Government employee holding a corresponding post or service, by [SECTION] of the said Rules.
2nd Category : Those employees who will not opt for the terms and conditions of service applicable to a Government employee by [SECTION] of the said Rules.
3rd Category : Part IV Honorary and Part time Medical Officers.
5. The present writ petitioners all belonged to non-opt and as such, their service conditions were guided by or under [SECTION] as mentioned horeinabove.
6. According to [SECTION] of the 1967 Rules, the medical officers were directed to continue to enjoy their academic ranks as at present, which may be elevated from time to time at the discretion of the Government and according to such procedure and rules as may be determined by them. Such elevation, however, did not entitle them to any higher pay or allowances or appointment or promotion to any higher post.
7. Accordingly, by Government Order, dated February 23, 1971, the academiic status of the petitioners were revised and confirmed by the Government, which has been annexed as Annexure 'B' to the present writ petition.
8. In clause (2) of the said Memorandum, it has been made categorically clear that if any officer is aggrieved against such fixation of status, he may submit his representation through proper channel stating the exact nature of his grievance to the Government for consideration and redress, if necessary.
9. On or about March 27, 1973, in relaxation of the above [SECTION] and [SECTION], by notifications, Government of West Bengal introduced under the guise of revision of pay scale of the medical officers, who did not opt for Government Services, the pay scales as follows :-
(1) For Professor and Associate Professors Rs. 500-25-550- 30-700.
(2) For others Rs. 250-15-550.
10. The said revision was given retrospective effect from June 9, 1967, and made admissible only to the whole time officers of the institution, who declared themselves in writing as such for being eligible for the revised scales of pay. However, it may be mentioned here that the "whole time officers" were not precluded from "private practice" beyond their duty hours, but had to give up their other assignments as prevailing at that time. Thus, according to the petitioners, even upto this stage, the Government admitted that the said declaration was in the nature of "an option", which a Government servant is commonly asked to exercise whenever a change in his condition of service is contemplated, but did not grant the petitioners the status of "Gazetted Officer" on the ground that they are not members of the West Bengal Health Service.
11. Thereafter, on May 20, 1976, the [ACT] was enacted, to amend the original [ACT], for the purpose of acquiring permanently the institute by the State Government.
12. It is necessary for us to set out the relevant provisions of [SECTION] of the said Act.
"3A. (1) The State Government may, if it so thinks fit, at any time within the period of ten years referred to in [SECTION], acquire the institution by notification published in the Official Gazette.
(2) On and from the date on which the notification referred to in sub-section (1) is published (hereinafter referred to as the date of vesting)
(iii) the institution shall be run by the State Government as a State institution ;
(v) every person, who has been an employee of the institution before the date of vesting shall on and from the date of vesting, "become an employee of the State Government" and shall hold office on the same terms and conditions as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the State Government is duly terminated or until the terms and conditions of his service are duly altered by the State Government by rules made in this behalf.
(vi) notwithstanding anything contained in any law for the time being in force or in any contract, custom or usage, to the contrary, the transfer of the service of any employee of the institution to the service of the State Government shall not entitle such employee to any compensation on any account whatsoever and no claim in this behalf shall be entertained by any court, tribunal or other authority."
13. According to the writ petitioners, in view of the passing of the [ACT], the rules framed earlier laying down the terms and conditions and/or subsequent notifications were impliedly repealed.
14. Since taking over management of the National Medical College and Hospital on and from June 9, 1967, the State Government engaged various persons in the service of the Calcutta National Medical College and Hospital from the West Bengal Health Services, as well as their medical officers, who opted for the Government Terms ([SECTION]) of the Institution, before taking over, and the said personnel though discharging the same functions, and same nature of duties and responsibilities and/or having same qualifications, if not less, as that of the petitioners, are receiving much higher pay and/or emoluments, as per grades specified for the said Part in the West Bengal Health Services.
15. Further, it is the case of the writ petitioners that due to the "revision of pay of the persons employed in the West Bengal Health Services" by implementation of the reports of several Pay Commissions, the emoluments of these persons have been enhanced from time to time, but unfortunately there was no revision of pay structure made to the writ petitioners and/or ex-management staffs of the institution.
16. At the hearing of the present writ petition, the writ petitioners have also referred to the recent judgment dated January 9, 1987, in [CASE NUMBER] ([PRECEDENT]) delivered by [ENTITY], J, wherein, on the writ petition filed on behalf of Class III and IV employees, this court directed the respondents to pay enhanced emoluments, as per New/Intermediate Selection Grade.
17. It appears from the said judgment that the learned Judge had referred to the note of the Deputy Secretary (GA) Health Department, and expressed the view that Group 'C employees in the ex-management institution should be given the benefit of New/Intermediate Selection Grade. In the said note, it was also suggested that a fair and reasonable solution in the matter will be found, if the discrimination is done away with by extending the benefit of selection grade to the Group 'B' and 'C employees, who "did not opt" for Government terms to bring them at par with similar Group 'D' employees provided the Finance Department gives their clearance. The said note was approved by the Secretary, Health Department, on December 20, 1983. Thus, the Health Department recommended extension of the benefit of selection grade to the writ petitioners in the said case. The learned Judge in that case observed that it was strange that the recommendations of the Health Department did not carry any weight with the Finance Department. It appears from the said judgment that the then Advocate General also recommended that Finance Ministry should accord sanction for extending the benefit to the writ petitioners.
18. In the result, the said writ application was allowed and the respondents were directed to forthwith extend the benefit of New/Intermediate Selection Grade to the petitioners and the Rule was made absolute.
19. After placing the aforesaid facts and the judgment referred to hereinabove, Mr. [ENTITY], learned Advocate followed by Mr. [ENTITY], learned Senior Advocate appearing on behalf of the petitioners submitted that in view of the recent judgment of the Supreme Court in the case of [ENTITY] Singh v. Union of India , the petitioners are entitled to "equal grade" and "equal pay" as they are discharging same duties and responsibilities from the date of taking over of the management of the institution, that is, from June 9, 1967, and should be posted according to the seniority after taking into consideration of the past services.
20. It has been further submitted that the respondents having already recognised the past services of the petitioners in fixing the academic status, the petitioners' services should be treated as "whole time Government servants" and they are "entitled to pension" and other retiring benefits as they are ready and willing to forgo the Government share in the contributory provident fund to place them at par with other Government employees.
21. Mr. [ENTITY] has drawn my attention to the statements made in paragraph 45 of the writ petition, wherefrom it will appear that on or about May 5, 1983, the Superintendent, Calcutta National Medical College and Hospital made a "strong recommendations" to the Director of Health Services for revision of the pay scales of ex-management medical officers and other staffs on the basis of R.O.P.A. Rules, which the West Bengal Health Services Officers are enjoying, as they are of the same rank. A copy of the said recommendation has been annexed as Annexure 'N' to the present writ petition.
22. Mr. [ENTITY] submitted that in any event, after the passing of the [ACT] and in view of provisions of [SECTION] as referred to hereinabove, the petitioners became "full-fledged Government servants" and with the framing of the Rules of the [ACT], the old Rules of 1967 stood repealed. It was further submitted that the panel of medical officers which was published on April 21, 1979, for appointment teaching posts of the State Medical College and institution, the petitioners' names are all there and the said panel has been annexed at page 67 of the writ petition. Mr. [ENTITY] also submitted that at present several Government employees of West Bengal Health Services Cadre are engaged in diverse senior posts both teaching and non-teaching in the institution known as National Medical College and Hospital having the privilege of "private practice", and the names of few such members have been given in paragraph 35 of the petition.
23. In paragraph 4 of the affidavit-in-opposition, however, the Assistant Secretary to the Government of West Bengal, Department of Health and Family Welfare, did not comment on the same and, as such, the said assertions were in fact admitted.
24. It was further submitted that on the passing of the Act, the petitioners became "whole time Government servants" and entitled to pension and other retiring benefits and they are ready and willing to forego the Government share in the contributory provident fund to place them at par with other Government employees and the question of transferability will not stand in the way, as much as, the Government has accepted the said position in case of other institutions except medical, such as Vidyasagar College, Surendra Nath College, Bangabasi College and several others, where the Lecturers and Professors were placed equally with the Lecturers and Professors of Government Institutions.
25. Mr. [ENTITY] submitted that there cannot be any "discrimination" amongst the Government servants within the same class on the ground of ex-management cadre and West Bengal Health Services, as all the petitioners belong to West Bengal Health Services, there should be one cadre, that is, West Bengal Health Services.
26. In this connection, strong reliance was placed in the case of [PRECEDENT] , where the Supreme Court observed, as follows :-
"It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status at his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and alters unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by the statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that [SECTION] imposes constitutional restrictions upon the power of removal granted to the President and the Governor under [SECTION]. But it is obvious that the relationship between the Government and his servant is not like an ordinary contract of service between a master and a servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of statute are fixed by the law and in enforcement of these duties society has an interest. In the language of jurisprudence, status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned."
27. Mr. [ENTITY] submitted that the entire question has to be decided by this Court whether after the enforcement of the [ACT], the terms in respect of the petitioners, particularly the scales of pay, as was prevailing before the passing of the Amendment Act, had changed and the petitioners became "Government employees" and rendering the same nature of work in view of the series of decisions of the Supreme Court, in the cases of [ENTITY] Singh v. Union of India, , [PRECEDENT] , and [PRECEDENT]
28. In [ENTITY]'s case (Supra), [ENTITY], J, speaking for the court observed, as follow :-
"It is true that the principle of 'equal pay for equal work' is not expressly declared by our [ACT] to be a fundamental right. But it certainly is a constitutional goal. [SECTION] of the [ACT] proclaims "equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. [SECTION] of the [ACT] enjoins the State not to deny any person equality before the law or the equal protection of the laws and [SECTION] declares that there snail be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the [ACT] must mean something to everyone. To the vast majority of the people the equality clauses of the [ACT] would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay."
28a. The said principles as enunciated in [ENTITY]'s case have been followed in the case of [PRECEDENT] and the Supreme Court held that denial of such benefit amounts to discrimination and denial of equality before the law and equal protection of law, which is violative of [SECTION] of the [ACT].
28b. In our court also, Mr. Justice [ENTITY] followed the said judgment in the case of [PRECEDENT]. In another Single Bench judgment of this Court in the case of [PRECEDENT], [ENTITY], J, followed the aforesaid doctrine of "equal pay" for "equal work" and granted relief to the writ petitioners.
[SECTION]. In an unreported judgment delivered by me on November 18, 1987, in [CASE NUMBER], ([PRECEDENT], I have applied the aforesaid doctrine of equal pay for equal work and directed the West Bengal Dairy Development Corporation to fix the pay of the employees as they are rendering the same nature of work like the Government employees accordingly directed the respondents to revise pay and allowance accordingly.
30. Mr. [ENTITY] also referred to a Single Bench decision in the case of [PRECEDENT] for the proposition that a Single Bench decision ought not to be differed by another Single Bench.
31. Mr. [ENTITY] has further satisfied this court about the "applicability" of iprovisions of [ACT] and has also satisfied that the age of retirement of the writ petitioners is 58 years on the basis of [SECTION] of the [ACT], after the [ACT] came into force and not 60 years as stated in the affidavit-in-opposition, as such according to Mr. [ENTITY] the petitioners and the doctors, who have been appointed by the State Government, after the vesting, are placed under "similar circumstances".
32. Mr. [ENTITY], learned Advocate appearing on behalf of the respondents submitted that the writ petitioners' appointment not having been regularised the Public Service Commission, they cannot be regarded as "full fledged Government servants".
33. He added that the petitioners have suppressed fact that the petitioners had "opted" for "whole-time medical officers" and refused to join West Bengal Health Service under the 1987 Act, and further after giving such "option", the petitioners filed a writ petition before this Court on May 31, 1984, being CO. No. 11312 (W) of 1D84 and for complying with the terms and conditions of their service as per their 'option' and payment of arrear salaries as per option since 1967 and also filed an application for contempt, being [CASE NUMBER] by the same set of learned Advocates.
34. He further added that the petitioners having got arrears of payment as per option, a sum of Rs. 60,000 each from 1967 to 1970, are not entitled to file the present writ petition, as according to Mr. [ENTITY], by the aforesaid conduct, the petitioners have disentitled themselves from approaching this Court for meeting "equal treatment".
35. In the second place, Mr. [ENTITY] submits that there is delay of about 19/12 years if it is taken from 1987 and this is not explained in the writ petition as to why the present writ petition has not been moved by the writ petitioners.
36. Thirdly, he submitted that the petitioners are "unequals" and, as such, they cannot be treated as "equals". The petitioners themselves having chosen their "pay scales" and "conditions of service", as stated in paragraph 13 of the affidavit-in-opposition, are not entitled to any relief, in the instant writ petition.
37. In this context, I may refer to paragraph 13 of the affidavit-in-opposition affirmed by the Assistant Secretary to the Government of West Bengal, Department of Health and Family Welfare on December 2, 1987. In the said paragraph the deponent stated that the petitioners) are not entitled to the pay scales of West Bengal Health Service as the petitioners have chosen not to opt for the terms and conditions of West Bengal Health Service. There are some differences between the terms and conditions of service of ex-management staff of National Medical College and Hospital and the terms and conditions of service of the West Bengal Health Services, namely:-
"(a) The age of superannuation of ex-management Medical Officers is 60 as per [SECTION] of Calcutta National Medical College and Hospital (Terms and Conditions of Service) 1967, while the age of superannuation of the members of West Bengal Health Service is 58.
(b) The ex-management Medical Officers enjoy the benefit of contributory provident fund. No such benefit is available to West Bengal Health Service.
(c) The ex-management Medical Officers are not liable to be transferred from Calcutta (Vide [SECTION] of the aforesaid Rule) whereas the members of West Bengal Health Services are liable to be transferred to places outside Calcutta.
(d) The members of West Bengal Health Services holding the post of teaching in non-clinical and para-clinical subjects from the post of Lecturers to Professors have no privilege of private practice whereas the ex-management Medical Officers holding the above-mentioned posts have the privilege of private practice."
38. In reply to the aforesaid objection put forward on behalf of the respondents, Mr. [ENTITY] submitted that after the [ACT] came into force, the contentions raised in paragraph 13 of the writ petition cannot be accepted by this Court in view of [SECTION] of the [ACT], which runs as follows :
"[SECTION] of the [ACT], relating to compulsory retirement shall apply to all employees, "so absorbed" Government service other than those in Class IV service, who will be governed by [SECTION] of the said Rules."
39. So, according to the petitioners, all the petitioners will have to retire on attaining the age of superannuation, that is, 58 years.
40. Mr. [ENTITY] also repelled the argument of the respondents by placing reliance on the provision of [SECTION] of the said Rules, namely, "All employees so absorbed shall be "liable for transfer" to any part of West Bengal in the exigencies of public service subject to the general rules and orders of Government in this behalf applicable to the respective category of Government servants."
41. Therefore, according to the writ petitioners, they are equal with those who were appointed by the Government after taking over, and after coming into force of the [ACT], they are placed under similar situation and circumstances.
42. Thus in this Writ petition, the following points arises for consideration before this Court:-
(i) Whether the petitioners are to be treated as "whole time Government servants", after the enforcement of the [ACT], 1976, and the Rules framed thereunder;
(ii) Whether the respondent State Government had discharged their obligation and/or onus in treating the writ petitioners at par, with the medical officers, who were appointed after taking over of the management and enforcement of the [ACT] ;
(iii) Whether the "options", exercised by the writ petitioners still remain, even after coming into force of the [ACT], 1976, and they should form a "different class".
(iv) If the petitioners do not come under different class, any discrimination by the State Government by not conferring the same status, upon the writ petitioners, as "whole time Government servants" and to what relief, the writ petitioners are entitled to get in this writ petition on the basis of the principles laid down by the Supreme Court of equal work for equal pay, as and .
43. Let us now discuss from the pleadings and arguments the above issues chronologically. In my view, in view of or clear language of the provisions of [SECTION] of the [ACT], it has been made clear that every person, who has been "an employee" of the institution before the date of vesting, becomes "an employee" of the "State Government" and shall hold office on the same terms and conditions as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the State Government is duly terminated or until the terms and conditions of his service are duly altered by the State Government by rules made in this behalf.
44. Although there is a proviso to the said Rules, that the services of every person, who expresses his unwillingness to continue in service in terms of the provisions of this clause shall stand terminated with effect from the date of vesting or from any other date to be notified by him, but as in the instant case of the writ petitioners, there is no unwillingness expressed by the writ petitioners, and as such, in my opinion, in view of clear provisions of clause (vi) of the said Rules, it should be deemed that the petitioners are "absorbed" as "full fledged Government servants". 45. In view of the decision of the Supreme Court in the case of [PRECEDENT] (supra), the respondent State Government is not entitled to make any differentiation in the service conditions of the writ petitioners as well as the medical officers who have been appointed after the date of vesting after the enforcement of the [ACT], as the writ petitioners are entitled to be treated as full fledged Government servants and after the applicability of the [ACT], they are entitled to "transfer" as well as "retire" on attaining the age of superannuation, that is, 58 years.
46. Even after enforcement of the Rules, viz., [SECTION] of the [ACT], by which the State Government fixed 58 years as the age of superannuation if the writ petitioners are not retired on attaining that age, for that the writ petitioners cannot be blamed and accused and in my opinion that will not give any handle to the State Government for making any discriminatory. treatment in the matter of payment of salary and retirement benefits.
47. In my opinion further, the stand taken in the affidavit by the respondents that the writ petitioners, being ex-management medical officers, having obtained a "lump sum amount',' by reason of exercising their option, should not stand in the way in getting the matter of pay fixation.
48. In this respect, the contentions raised in paragraph 6 of the affidavit-in-opposition that the petitioners were not entitled to the salary admissible to the medical officers of the West Bengal Health Service, since they did not opt for the Government terms but agreed to undertake to serve the State Government as wholetime officers on the terms and conditions of ex-management and on the terms and conditions laid down in G.O. dated March 27, 1973 read with G.O. dated February 8, 1974, cannot be accepted.
49. In my view, the contention raised in paragraph 8 of the affidavit-in-opposition that in terms of [SECTION] of [ACT], which is applicable to the writ petitioners, laying down, inter alia, that medical officers shall continue to enjoy their academic ranks, which may be elevated from time to time at the discretion of the Government accordingly did not arise in view of subsequent enactment of [ACT], and the Rules framed thereunder.
50. In my view, the contentions also raised in paragraph 10 of the said affidavit that the petitioners are not entitled to retiring benefit, including provident fund cannot also be accepted, in view of the statements made in paragraph 42 of the writ petition.
51. Further, in view of the recent trends of decisions of the Supreme Court in the case of [ENTITY] Singh v. Union of India (supra) that the persons performing "equal work should be given equal pay" and the said view has been considered to implement the provisions of [SECTION] of the [ACT].
52. In the result, the writ petition is entitled to succeed and following directions are passed accordingly :
(a) The restpondents and each one of them are directed to determine the terms and conditions of service of the writ petitioners, along with other employees of the institution, as they are similarly placed, after the enforcement of the [ACT], as they are full fledged Government servants and they are performing "equal work1' and, as such, they are entitled to "equal pay", in view of the principles laid down in the judgments referred to hereinabove.
(b) The State Government and their officers and subordinates are directed not to discriminate the petitioners along with the medical officers, who have been appointed after the taking over of the management and treat them, as full fledged Government servants, and implement the provisions of the [ACT], in particular relating to "transfer", "retirement" and "other conditions of service", in spite of the fact that they have exercised option in terms of 1967 Act and Rules, as they are implied repealed.
(c) For the purpose of retirement and other pensionary benefit, the respondents should take into account the past services of the petitioners from the coming into force of 1976 Act, as in view of the provisions of the said 1976 Act, when they became full fledged Government servants.
(d) Such determinations and/or fixation and/or implementations have to be made within two months from the communication of this order to the respondents Nos. 1 and 3, being the State of West Bengal, through the Secretary, Department of Health and Family Welfare (General Administrative Branch) and the Director of Health Services, Government of West Bengal, Department of Health and Family Welfare, in accordance with law.
53. The Rule is made absolute to the extent as indicated above.
54. There will be no order as to cost.
55. The prayer for stay of operation of this judgment is refused in view of the fact that this Court has granted two months' time to the respondents to implement the judgment.
56. Certified copies of this judgment, if applied for on behalf of the parties with urgent fees, the same may be given to the parties within the stipulated time.