Case: Hemant Kumar Verma &amp; Ors Vs. Employees State Insurance Corporation &amp; Ors

of reduced Bond period & Bond amount in lieu, would also be extended to (i) all existing students (MBBS/BDS); (ii) Fresh UG (MBBS/BDS) pass-outs; 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 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 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 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 (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 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. 6. The contention of the petitioners is two-fold. One, the junior residents are inservice 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 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 Saurabh Chaudri v. Union of India (2003) 11 SCC 146 and Yatin Kuma Jasubahi v. State of Gujarat (2019) 10 SCC 1. 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 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. 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 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 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, 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 serving in the respondent-institution till superannuation. In such 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 Pradeep Jain v. Union of India (1984) 3 SCC 654. 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 in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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.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 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 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, 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 serving in the respondent-institution till superannuation. In such 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 Pradeep Jain v. Union of. 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 in the form of NEET. Rejecting this argument, the three-Judge Bench of this Court held that postgraduate 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 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 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.