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

1. The respondent -Employees State Insurance- is a statutory body created under the Employees State Insurance Act. 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 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.2. The respondent-institutions recruit Insurance Medical Officersthrough 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 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 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.

Reasoning: 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.