Govt contractual doctors in Maharashtra now allowed private practice after working hours

Mumbai: Providing major relief to the contractual doctors across the State employed under the National Health Mission (NHM), the Bombay High Court on Monday stayed a circular barring them from private practice after duty hours.

The HC bench of Justices Dhiraj Singh Thakur and Sandeep Marne took this decision after considering the fact that these doctors get a meagre monthly salary of Rs 25,000 to Rs 30,000 and they are also not paid any non-practicing allowance for not doing private practice.

"In our opinion the Petitioners who were earlier engaged on contractual basis as early as from the year 2008 and onwards are working on a very meagre amount of Rs.25,000/- to Rs.30,000/- per month and, therefore, to impose such a condition beyond their working hours which is fxed from 9:45 a.m. till 5:30 p.m. would in our opinion be harsh. It is also not denied that the Petitioners are not being paid any non-practicing allowance as Doctors in the Government set-up," observed the bench.

However, the bench also clarified that the authorities can take strict action against the doctors including termination of the contractual arrangement with the petitioner doctors, if the doctors were found to be absent during duty hours.

The HC bench passed this order while considering a plea by doctors working on contractual basis under the National Health Mission (NHM). Some of the petitioner doctors got engaged on a yearly basis with extensions granted from time to time since 2008. The petitioner doctors get a contractual sum ranging from Rs 25,000 to Rs 30,000 per month.

Also Read: Karnataka Reforms Panel suggests Complete Ban on Private Practice of doctors

Issuing a circular dated 12th April 2021, the Director of Health Service, of NHM, for the first time prohibited such contractual doctors from doing any work including private practice and this has now been incorporated in the agreement executed between the petitioner doctors and the employer.

Aggrieved by this, the petitioner doctors approached the High Court bench in the year 2021. The counsel for the doctors stated that even though the petitioners were working on extensions granted from time to time, the petitioners had signed their contractual agreement on 'without prejudice basis'.

It was urged that the clause inserted regarding prohibition on private practice was incorporated in the year 2021 for the first time. In this context, the doctors' counsel pointed out that a similar prohibition was also imposed upon Doctors working in the Government Sector and the same was challenged before the High Court bench.

He submitted that in the concerned plea, the Government Resolution dated 07th August 2012 specifically stated that any Doctor who received a non-practicing allowance would be prohibited from indulging in private practice. However, when it was challenged before the HC bench, it was stayed in regard to clauses no. 4.1, 4.3, 4.4, 4.5 and 4.7.

Referring to this, the counsel for the Petitioners argued that if the Doctors in the Government sector enjoying much higher pay scales, who were similarly sought to be prohibited from indulging in private practice have no such bar in view of the order passed by the HC bench, then the insistence on the part of NHM to prevent the Doctors working on contractual basis on a paltry sum of Rs 25,000 to Rs 30,000 would be highly iniquitous.

Taking note of this submission, the High Court noted that the fact that there is an order passed on 08th July, 2022 by this Court in Writ Petition No. 7760 of 2022 which has not been vacated, is not denied by learned Counsel for the Petitioners.

Medical Dialogues had last year reported that while considering a plea challenging the Government ban on private practice of government doctors in Maharashtra, the bench comprising of S.V. Gangapurwala and S.M. Modak had issued an ad-interim stay on certain clauses of the Government Order dated 07.08.2012, which had been assailed in the plea.

"In the meanwhile, there will be ad-interim Stay to clause no.4.1, 4.3, 4.4, 4.5 and 4.7 of G .R. dated 07.08.2012," the bench had mentioned in its order dated July 8, 2022.

While considering the case of contractual doctors under the NHM, the Court observed that the petitioners had been working on a very meagre amount of salary and therefore banning private practice of such doctors after the working hours would be "harsh".

"In our opinion the Petitioners who were earlier engaged on contractual basis as early as from the year 2008 and onwards are working on a very meagre amount of Rs.25,000/- to Rs.30,000/- per month and, therefore, to impose such a condition beyond their working hours which is fxed from 9:45 a.m. till 5:30 p.m. would in our opinion be harsh. It is also not denied that the Petitioners are not being paid any non-practicing allowance as Doctors in the Government set-up," observed the High Court bench.

However, clarifying that action can be taken against the doctors for being absent during duty hours, the bench observed,

"Notwithstanding the above, while it may be permissible for the employer to ensure that the Petitioners are made to work during the working hours from 9:45 a.m. to 5:30 p.m. everyday yet to prevent them from utilizing their time beyond 5:30 p.m. on a general allegation that the Doctors were remaining away from their duties and were indulging in private practice in our opinion would be not justifed. Nothing would take away, from the Respondents their right to take strict action including termination of the contractual arrangement with the Petitioners, in case it was found for any reason that a particular Petitioner had not been reporting for duty during the duty hours."

"Be that as it may, we fnd prima faice case in favour of the Petitioners. The impugned Circular to the extent it prevents the Petitioners from having their private practice is accordingly stayed," further read the order.

The matter has been listed for final consideration on 28th August 2023.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/bombay-high-court-private-practice-214749.pdf

Also Read: High Court Interim Stay on Govt move to ban private practice in Maharashtra