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Rajasthan High Court · body

2004 DIGILAW 1789 (RAJ)

Dr. Kantesh Khetani v. State of Rajasthan

2004-12-14

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioners against the respondents on 30.6.2003 with the prayer that by an appropriate writ, order or direction, the condition as mentioned in the appointment orders/letters of the petitioners to the effect that "this will not incur any financial liability upon the State Government and the petitioners will have to work on honorary basis" may be declared void and be struck off and furthermore, the respondents be directed to pay amount of stipend to the petitioner as being paid to the students who are doing PG (MS/MD). 2. The case of the petitioners as put forward by them in this writ petition is as follows : The Government of India established an autonomous body, which is known as National Board of Examinations (for short "the NBE"), in the year 1975 with the primary objective of improving the quality of medical education by elevating the level of establishing standard of post graduate examinations in modern medicine on all India basis. It was to function as a national resource of imparting quality in evaluation of professional competence in medical sciences. There are more than 135 recognised Medical Colleges in the country and abroad, in addition to over 191 accredited institutions imparting medical education in various levels and in various broad and super specialities. There are 39 medical disciplines identified by the Board for which approved training facilities are available in the country at present. Although the Medical Council of India has laid down standard for post graduate examinations conducted by various Universities and other Institutions, it is felt that the level of proficiency and standards of evaluation still vary considerably in these institutions and universities. Hence, it was felt to set up a national body to conduct post graduate medical examination to provide a common measurement standard and mechanism of evaluation of the minimum level of attainment of the objective for which post graduate degree courses were started in medical institutions. Intercountry and international comparison will be facilitated with the availability of commonly accepted evaluation mechanism. Intercountry and international comparison will be facilitated with the availability of commonly accepted evaluation mechanism. Thereafter, the Government of India vide Notification dated 19.9.1983 in exercise of the powers conferred by sub-section (ii) of Section (2) of the Indian Medical Council Act, 1956 (102 of 1956) (hereinafter referred to as "the Act of 1956"), after consulting with the Medical Council of India, amended the first Schedule appended to the Act of 1956 and degrees relating to the NBE were incorporated in first scheduled appended to the Act of 1956.The further case of the petitioner is that they took admission in NBE in different branches in different years and they are working under the respondent No. 4 Dr. S.N. Medical College, Jodhpur and the details of their date of admission, branch, experience and name of hospital where they are working are shown in Schedule-A appended to this writ petition.According to the petitioners, they were duly selected in the course conducted by NBE and they are being given training in Diplomate of National Board (for short "DNB") course and they are working in different hospitals of Jodhpur affiliated to Dr. S.N. Medical College, Jodhpur (respondent No. 4).According to the petitioners, they were required to work practically as full time Resident doctors in hospital and according to their specialization, they will have to do all works as are being done by MD/MS and for that also, the petitioners will have to work for 12-14 hours daily in hospital, meaning thereby duties and responsibilities of the petitioners are similar and equivalent to that of MD/MS doctors in the same hospital.The further case of the petitioners is that no doubt there was condition in the appointment letter/order of the petitioners that the State Government would not bear any financial liability and furthermore, undertaking was also obtained from the petitioners on bond that they would undergo training in DNB course on honorary basis.The further case of the petitioners is that through Notification dated 3.10.1994 appended as Appendix-1 to Schedule B (Bulletin of Information and application form for Diplomate of National Board Primary Examination), it was categorically opined by the Director (ME), Government of India, Ministry of Health and Family Welfare that the medical qualification awarded by the National Board of Examinations be treated at par with MD/MS of Indian Universities for all posts including teaching posts. Thus, the medical qualification awarded by NBE is at par and equivalent to MD/MS.The further case of the petitioners is that since there was a condition in their appointment letters/orders that the State Government would not bear any financial liability, therefore, the petitioners, who are resident doctors doing PG (DNB course), are not being paid any stipend and on the contrary, the students, who are doing PG course (MS/MD) in the same hospital are being paid stipend for all the three years.The further case of the petitioner is that on 24.9.2001, the Dy. Director (Admn.) of the NBE wrote a letter to all the accredited institutions stating that payment of stipend to students undergoing training for the DNB course is now mandatory and the same be paid to them. Since on that letter no action was taken by the respondents, therefore, a reminder was further issued on 15.12.2001.The further case of the petitioners is that the condition that they would work on honorary basis was accepted by them under influence of he respondents and thus, that condition is hit by Section 16(1) of the Indian Contract Act, 1872 (for short "the Act of 1872") and for that, reliance has been placed by the petitioners on the decision of the Hon'ble Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly, 1986(3) SCC 156 . The further case of the petitioners is that they made oral requests to the respondents that since they are performing the similar and identical works as are being performed by other students doing PG (MS/MD) and when the students doing PG (MS/MD) are being paid stipend, therefore, they are also entitled to stipend and the same be paid to them. However, the request of the petitioners was not accepted by the respondents. Thereafter, the petitioners served a notice for demand of justice Annexure-6 dated 8.6.2003 upon the respondents through counsel, but no action was taken by the respondents. However, the request of the petitioners was not accepted by the respondents. Thereafter, the petitioners served a notice for demand of justice Annexure-6 dated 8.6.2003 upon the respondents through counsel, but no action was taken by the respondents. Hence, this writ petition with the prayers as stated above.In this petition, the main case of the petitioners is that since they are discharging the same duties and responsibilities as are being done by other MD/MS students and when the students of PG (MD/MS) are being paid stipend, therefore, the petitioners are also entitled to get stipend as being paid to the students doing PG (MD/MS) on the principle "equal pay/stipend for equal work" and highly discriminatory and violative of Articles 14 and 16 of the Constitution of India.A reply to the writ petition was filed by the respondents No. 3 and 4 and it was submitted by them that since there was a condition in the appointment letters/orders of the petitioners that this will not incur any financial liability upon the State Government and apart from this, the petitioners have voluntarily executed bonds in favour of the answering respondents mentioning therein in clear terms that they would perform duties on honorary basis, therefore, in these circumstances, they are not entitled to claim stipend. Copies of some of the bonds executed by the petitioners are marked as Annex. R/1.It has been further submitted by the respondent Nos. 3 and 4 that the case of the petitioners that they should be treated at par with the students, who are doing PG Course (MD/MS) is wrong one as the class to which the petitioners belong is a distinct class and their terms and conditions are also different one and therefore, to say that they should be equated with the students doing PG (MD/MS) should not be accepted. Hence, no interference is called for and this writ petition deserves to be dismissed. 3. I have heard the learned counsel for the petitioners and the learned counsel for the respondents and gone through the entire materials available on record. 4. There is no dispute on the point that the petitioners were duly selected in the course conducted by NBE and they are being imparted training in DNB Course and they are working in different hospitals of Jodhpur affiliated to Dr. S.N. Medical College, Jodhpur (respondent No. 4). 5. 4. There is no dispute on the point that the petitioners were duly selected in the course conducted by NBE and they are being imparted training in DNB Course and they are working in different hospitals of Jodhpur affiliated to Dr. S.N. Medical College, Jodhpur (respondent No. 4). 5. There is also no dispute on the point that the Medical qualifications awarded by the National Board of Examinations are included in the First Schedule appended to the Act of 1956 and they are considered at par with post graduation Medical qualifications of the Indian Universities, as is evident from the Notification dated 3.10.1994 issued by the Director (ME), Government of India, Ministry of Health & Family Welfare, New Delhi (appendix-1 to the Bulletin of Information and Application Form for Diplomate of National Board).6A. There is also no dispute on the point that at the time when the petitioners were admitted for DNB Course, there was a condition that this will not incur any financial liability on the State Government and for that, office-order Annexure-1 dated 2.6.2000 may be referred to and there is also no dispute on the point that at that time, the petitioners also executed bonds to the effect that they would perform their duties on honorary basis.7. There is also no dispute on the point that the students, who are doing PG course (MD/MS) in various Medical Colleges of India, are being paid stipend for all the three years.8. There is also no dispute on the point that PG Course of DNB, which the petitioners are doing, is also of three years and they are not being paid any stipend.9. In this respect, it may be stated here that doctors, who are doing diploma course such as Diploma in Child and Health known as (DCH) a lesser degree than the PG degree, are also being paid stipend by the respondent No. 3, but there is also no dispute on the point that the amount of stipend, which was being paid to the doctors doing diploma course, is less then the amount which is being paid to the doctors, who are doing PG course (MD/MS).10. The first question for consideration is whether the duties, which are being performed by the petitioners as students of PG course of DNB are similar and equivalent to the duties, which are being performed by other students of PG Course (MD/MS) or not.11. The first question for consideration is whether the duties, which are being performed by the petitioners as students of PG course of DNB are similar and equivalent to the duties, which are being performed by other students of PG Course (MD/MS) or not.11. In this respect, it may be stated here that a DNB student joins a course of studies like any MD/MS student. The main difference between these two courses is that one leads to a post-graduate diplomate, while the other leads to a post-graduate degree. In most other respects, a DNB course is intended to be equivalent to MD/MS Course and is recognised as such by the Medical Council of India. There is, however, no doubt that a student undergoing MD/MS course (is) academically better equipped than a student undergoing a DNB course. For this reason, MD/MS working as a Junior Resident perhaps has grater responsibilities and more onerous duties to perform than a Junior Resident of a DNB Course.12. Thus, it can be concluded that the students of both courses (PG course of DNB and PG course of MD/MS) perform by and large the same duties while working as a Junior Resident. There does not appear to be any substantial difference in the nature of duties of a Junior Resident, whether he is doing MD/MS course or a DNB Course. The difference lies in the degree of responsibility, the level of skill and expertise employed rather than in the nature of the work.13. The next question for consideration is when the students doing DNB Course are performing the similar type of duties, which are being performed by the students doing PG Course (MD/MS) and when the students doing PG Course (MD/MS) are being paid stipend for all the three years, whether the petitioners, who are doing DNB Course of three years, are entitled to stipend or not especially when there was a condition in the appointment letters/orders of the petitioners that the State Government would not bear any financial liability and furthermore, the petitioners have themselves executed bond to the effect that they would do the work on honorary basis.14. Before proceeding further, something should be said about the word stipend any pay.Stipend15. The word "stipend" means a salary or fixed periodical payment made (annually or at shorter intervals) to a clergyman, teacher, or public official, in requital of his services. Before proceeding further, something should be said about the word stipend any pay.Stipend15. The word "stipend" means a salary or fixed periodical payment made (annually or at shorter intervals) to a clergyman, teacher, or public official, in requital of his services. It refers to something given as compensation for services rendered.Pay 16. The word "pay" in its ordinary significance in relation to service means to give what is due for services done. It means all sums payable to a man in respect of his services other than allowances, money paid for labour or service. Substantive pay means pay, other than special pay, personal pay, or any other emoluments classed as pay drawn by a Government servant in respect of a post to which he is appointed substantively or by reason of his substantive position in a cadre.17. Thus, there is a difference between stipend and pay.18. In my considered opinion, because of the following reasons, inspite of the fact that the petitioners have executed bonds that they would work on honorary basis and inspite of the fact that there was a conditions in the appointment letters/orders of the petitioners that the State Government would not bear any financial liability, the petitioners are entitled to stipend as was being paid to the students, who are doing PG course (MD/MS), but there may be difference in the amount of stipend to be paid to the students of DNB course, but this is another aspect.(i) On discriminationThe State cannot discriminate in the matter of fixing, awarding or granting pay scale or similarly in giving stipend to the persons, who are doing similar type for work. There is no doubt that the State can classify and make different amount, but such classification must not be irrational or arbitrary. Discrimination can be accepted in divergent circumstances, but not in similar circumstances.In the present case, since both categories of students i.e. those who are doing PG Course (MS/MD) and those who are doing PG DNB Course are performing the smilar type of duties in various hospitals, therefore, if stipend is being paid to the students who are doing PG Course (MD/MS), that should also be paid to the students, who are doing PG DNB Course and for that there should be no discrimination. Thus, the action of the respondents in not giving stipend to the petitioners, who are doing PG DNB Course is wholly arbitrary and discriminatory and therefore, the same cannot be sustained.(ii) Reasonable classificationIt may be stated here that classification between qualified and unqualified persons can be upheld, but classification between persons, who are doing similar type of job, cannot be accepted and in such a matter, the Court can interfere.In the present case, the petitioners, who are doing PG DNB Course and the other students, who are doing the PG Course (MD/MS) are performing the same duties and works but stipend is being given to only those students, who are doing PG Course (MD/MS) and no stipend is being paid to the petitioners, who are doing PG DNB Course and in my considered opinion, such classification appears to be wholly unreasonable and arbitrary and therefore, the same cannot be upheld. Thus, from this point of view also, the petitioners are entitled to some sort of stipend.(iii) Factors to be taken into consideration in matters of pay, stipend etc.The guiding principles, which should be kept in mind while fixing pay scale, stipend etc. are the degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved etc. etc.In the present case, when the petitioners, who are doing PG DNB Course, are performing the same nature of duties, which are being performed by the students of PG Course (MD/MS) and since stipend is being given to the students, who are doing PG Course (MD/MS), therefore, the petitioners are also entitled to some sort of stipend. The Court's interference in such a situation is absolutely necessary to undo the injustice, which has been caused to the present petitioners by not paying stipend to them.(iv) Equal pay/stipend for equal workOne of the directive principles enumerated in Part-IV of the Constitution is that the State shall direct its policy towards securing that there is equal pay for equal work for both men and women. This means equal pay for equal work for every one and as between the sexes.In the present case, the question of stipend is involved and when the duties, which are being performed by the petitioners, who are doing PG DNB Course and other doctors, who are doing PG Course (MD/MS) are of similar and identical nature and since stipend is being given to doctors, who are doing PG Course (MD/MS), therefore, the petitioners are also entitled for stipend on the principle "equal stipend for equal work".(v) Identical work : the guiding factorIn applying the principle, the Hon'ble Supreme Court in Dhirendra Chamoli v. State of U.P., (1986)1 SCC 637 , has emphasised on the nature and quality of the work rather than the status of the worker and thus, the Hon'ble Supreme Court directed that the same pay be given to casual workers and regular workers doing the same work.On the same reasoning and anology, since similar type of work and duties are being performed by the petitioners while doing PG DNB Course and other students who are doing PG Course (MD/MS) and when stipend is being given to the students doing PG Course (MD/MS), therefore, the petitioners are also entitled to some sort of stipend.(vi) Same EmployerIt may be stated here that the preponderance of authorities is in favour of the view that for the applicability of the principle of "equal pay for equal work" both the groups of persons which seek equality and the group with which equality is sought must be working under the same employer. This was pointed out in Jaipal v. State of Haryana, ( AIR 1988 SC 1504 ). In the present case, the nature of duties and work performed by the petitioners while doing PD DNB Course and other students, who are doing PG Course (MD/MS) are similar and identical and they are performing the duties and works under the same employer i.e. respondent No. 3. From this point of view also, the petitioners are entitled to some sort of stipend.(vii) Decision Making process should be fair and justIn my considered opinion, any decision by which a person is deprived of something or is being paid something should be transparent, fair and open. If this aspect is kept in mind, it clearly appears that the petitioners should be given some sort of stipend while doing PG DNB Course. If this aspect is kept in mind, it clearly appears that the petitioners should be given some sort of stipend while doing PG DNB Course. (viii) On question whether the petitioners can be said to be aggrieved because they were not paid any stipend, it can be said here that aggrieved person means a person who had suffered legal injury or one who has been unjustly deprived or denied of something. In this case, the petitioners were denied stipend and therefore, they are aggrieved persons and thus, entitled to seek remedy under Article 226 of the Constitution of India as they had suffered legal injury.(ix) Conscience of the Court in respect of unconscionable agreementsWithout a statutory provision enabling interference by the Court in transactions unfair or unconscionable, or transactions caused by economic duress, but falling short of undue influence or coercion, the Courts have struck down such terms on the ground of public policy.The Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (supra) has observed that the contracts which contained terms, which are so unfair and unreasonable and which shock the conscience of the Court, should be judged as void and the following principles are laid down by the Hon'ble Supreme Court:- "The principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unffair, unreasonable and unconscionable a clause in that contract or form or rules may be, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The Court must judge each case on its own facts and circumstances." Therefore, the conscience of the Court compels that the persons situated in similar position should be treated at par. From this point of view also, the petitioners are entitled to some sort of stipend.Thus, in view of the above, the argument of the respondents that since there was a condition in the appointment letters/orders of the petitioners that the State Government would not bear any financial liability and that the petitioners have themselves executed bonds that they would do the work on honorary basis, therefore, they are not entitled to claim stipend stands rejected. (x) That apart from the above, it may be stated here that students, who are doing PG DNB Course in private hospitals in Rajasthan for example Santokba Hospital, Jaipur, are being paid stipend by that Hospital. 19. Apart from the above reasons, it may be stated here that a similar question arose before the Delhi High Court in Civil Writ No. 3741 of 2001, Dr. Vishal Sehgal v. Secretary (Health), decided on 18.12.2002 and the Delhi High Court decided the matter in favour of the petitioners of that case holding inter alia that DNB students are entitled to receive stipend and this Court is also in full agreement with the view taken by the Delhi High Court in that case.20. Vishal Sehgal v. Secretary (Health), decided on 18.12.2002 and the Delhi High Court decided the matter in favour of the petitioners of that case holding inter alia that DNB students are entitled to receive stipend and this Court is also in full agreement with the view taken by the Delhi High Court in that case.20. For the reasons stated above, it is held that the petitioners, who are doing PG DNB Course, are entitled to receive stipend as being paid to the students doing PG Course (MD/MS) and denial of stipend to the petitioners is wholly arbitrary, unreasonable, discriminatory and violative of Articles 14 and 16 of the Constitution of India. However, it is made clear that though the petitioners are entitled to receive stipend, but not the same amount of stipend as being paid to be students doing PG Course (MD/MS). What amount of stipend should be paid to the petitioners doing PG DNB Course, it is not within the domain of this Court, but it should be fixed or determined by the concerned authorities. However, the amount of stipend to be paid to the students doing PG DNB Course may be less than the amount being paid to the students doing PG Course (MD/MS), but that amount should be higher than the amount being paid to the students doing Diploma Course and thus, this writ petition deserves to be allowed to the above extent.Accordingly, this writ petition filed by the petitioners is allowed to the extent and in the manner that the petitioners, who are doing PG DNB Course of three years, are entitled to receive stipend for all three years and the respondent No. 3 State of Rajasthan through the Secretary, Medical & Health Department, Government of Rajasthan, Jaipur is directed to determine and fix the amount of stipend to be paid to the students doing PG DNB Course within a period of three months from today and that amount of stipend be paid to the petitioners from the date when they started PG DNB Course. However, it is made clear that the amount of stipend to be paid to the students doing PG DNB Course may be less than the amount being paid to the students doing PG Course (MD/MS), but that amount should be higher than the amount being paid to the students doing Diploma Course. No order as to costs. Petition allowed. *******