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2014 DIGILAW 261 (UTT)

LALIT KUMAR v. STATE OF UTTARAKHAND

2014-06-20

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J (Oral). In all these writ petitions, identical questions of law and fact are involved, therefore, with the consent of learned counsel for the parties, all the writ petitions were heard together and are being disposed of by this common judgment. 2. Mr. Anil Kumar Joshi, Addl. CSC for the State of Uttarakhand, handed over photostat copies of Government Orders dated 24.06.2004, 21.05.2005, 30.06.2006, which are taken on record. 3. Undisputedly, annual tuition fee for MBBS course was Rs. 1,50,000/- per annum; vide Government Order dated 24.06.2004, it was provided that MBBS student, who was domicile of State of Uttarakhand and whose parent’s annual income was Rs. 2,50,000/- or less would be paid scholarship @ Rs. 1,00,000/- per annum and the amount of scholarship would be adjusted against the annual tuition fee, meaning thereby, such student had to pay tuition fee of Rs. 50,000/- per annum and Rs. 1,00,000/- would be paid by the State; vide subsequent Government Order dated 21.05.2005, it was provided that MBBS student, who was domicile of State of Uttarakhand and whose parent’s annual income was upto ‘ 5,00,000/-, would be paid scholarship of Rs.1,25,000/- and the amount of scholarship would be adjusted in annual tuition fee, meaning thereby, such student had to pay only ‘ 25,000/- per annum towards tuition fee and rest of the tuition fee would be paid by the State Government in the shape of scholarship; vide third Government Order dated 30.06.2006, it was decided that from academic session 2006-07, MBBS student, who was domicile of State of Uttarakhand and whose parent’s annual income was upto Rs. 5,00,000/- would be paid scholarship of Rs. 1,25,000/- and such student had to pay only Rs. 25,000/- towards annual tuition fee and balance tuition fee of Rs. 1,25,000/- would be paid by the State Government; it was further stipulated in the Government Order dated 30.06.2006 that such student, who was interested to avail benefit of scholarship, had to furnish surety bond/undertaking to the effect that he would serve the State of Uttarakhand for minimum period of 5 years, failing which amount paid as scholarship would be recovered from such student with further stipulation that student, who would fail in any annual examination would be deprived from further scholarship for rest of the course. 4. 4. Few petitioners joined MBBS course in academic session 2004-05, few joined in 2005-2006, few joined in 2006-07 and few joined in 2007-2008. All the petitioners had submitted their respective surety bonds/ undertaking pursuant to the Government Order dated 30.06.2006 and availed the financial assistance (concession in the tuition fee). 5. Learned counsel for the petitioners first of all submitted that all of a sudden vide Government Order dated 30.06.2006, students were compelled to furnish surety bonds/undertaking to the effect that they would serve State Government for the minimum period of five years. Therefore, condition to furnish the surety bond is arbitrary, unjustified and as such, is in violation of Article 14 of the Constitution of India. 6. Learned counsel appearing for the petitioners submitted that few students, who have completed MBBS course and are now interested to join different PG courses are being denied permission to join different PG courses either in the State of Uttarakhand or outside the Uttarakhand saying before permitting them to pursue PG courses, they have to serve State of Uttarakhand for minimum period of five years or to repay the amount of financial assistance availed by them. Further contention of the learned counsel for the petitioners is that such petitioners, who are interested to join different PG courses, should be given option to serve State Government for the minimum period of five years, after completion of PG courses and they should not be compelled to refund the amount of scholarship before joining the PG courses. 7. The next contention of learned counsel for the petitioners is that few petitioners had already served State of Uttarakhand, after completion of their MBBS course for different periods, therefore, recovery of the scholarship should be made only for the remaining period for which such candidates could not serve out of 5 years mandatory period. 8. Further contention of learned counsel for the petitioners is that State Government is not issuing appointment letters soon after the completion of internship of MBBS and in few cases, appointment letters were issued after a year, therefore, if appointment letter is not issued to the doctor, soon after completion of MBBS course, then no fault can be attributed to such doctor and it should be deemed that State Government is not interested in taking service of such doctor, therefore, recovery of the amount from such doctor should not be permitted. In alternative, learned counsel for the petitioners contended that after completion of internship, if, any candidate remains unemployed for the reason of non issuance of the appointment letter by State Government, the period, when candidate remains idle, should be adjusted in the minimum period of 5 years. It is further contended by the learned counsel for the petitioners that as per Government Order, total minimum period to serve State of Uttarakhand is 5 years, therefore, State Government should not be permitted to say that doctor has to serve for the period of five years only in remote area and tenure of service in plain area would not be counted in the period of five years. 9. Learned counsel appearing for the petitioners stated that prior to Government Order dated 30.06.2006, there was no requirement to furnish surety bond/undertaking to the effect that student availing financial assistance from the State had to serve for the period of five years after completion of MBBS. Therefore, in the event of not serving the State, amount of financial help provided prior to Government Order dated 30.06.2006 cannot be recovered. 10. Mr. Anil Kumar Joshi, learned Addl. CSC for the State of Uttarakhand, submits that language of Government Order dated 30.06.2006 is crystal clear and has no ambiguity therein. He further contends that furnishing of surety bond/undertaking to serve State of Uttarakhand for a period of 5 years, after completion of MBBS Course was optional. The condition to serve State of Uttarakhand for a minimum period of five years was only for those students, who wanted to take financial assistance from the State Government and was not for those students, who wanted to pay complete and full tuition fee of Rs.1,50,000/- per annum. 11. According to Mr. Anil Kumar Joshi, learned Addl. CSC for the State of Uttarakhand, since petitioners furnished their respective bonds / undertakings pursuant to the Government Order dated 30.06.2006 with open eyes and had availed benefit of financial help provided by the State Government, they are now, estopped in challenging the conditions of surety bond/undertaking furnished by them. 12. I have carefully perused the Government Orders dated 24.06.2004, 21.05.2005 and 30.06.2006. 12. I have carefully perused the Government Orders dated 24.06.2004, 21.05.2005 and 30.06.2006. In Government Orders dated 24.06.2004 and 21.05.2005, there was no provision for furnishing any surety bond/undertaking and tuition fee concession was made available for those MBBS students, who were domicile of State of Uttarakhand and whose parents’ annual income was less than Rs. 2,50,000/- and Rs. 5,00,000/- respectively. Government Order dated 30.06.2006 provides that financial help, in the shape of scholarship, would be made available to only those students, who were interested in furnishing surety bonds to serve State of Uttarakhand for a minimum period of 5 years, after completion of MBBS Course. Language of Government Order dated 30.06.2006 suggests that none of the MBBS students was compelled to execute/furnish surety bond/undertaking. The surety bond/undertaking was optional. Only those students, who were interested in taking financial assistance from State Government, were required to furnish surety bonds/undertaking to the effect that they would serve for a period of five years and in the event of not serving for a period of five years, would refund the amount of financial assistance availed by them. 13. Since petitioners had furnished surety bonds/undertakings with open eyes with the sole object to avail financial help and in fact, received financial assistance, therefore, now, it is not open to the petitioners to challenge the condition of furnishing the surety bond/undertaking being arbitrary, unjustified and in violation of Article 14 of the Constitution of India. 14. Careful reading of Government Order dated 30.06.2006 would go to demonstrate that after completion of MBBS course only such doctors were required to serve in State of Uttarakhand for the period of 5 years, who had availed benefit of financial help from the State Government. Government Order nowhere stipulates that such doctors would not be permitted to join PG courses either in the State or elsewhere in India, either before completing the period of five years service or before refund of the amount of financial assistance availed by them. 15. Government Order nowhere stipulates that such doctors would not be permitted to join PG courses either in the State or elsewhere in India, either before completing the period of five years service or before refund of the amount of financial assistance availed by them. 15. In my considered opinion, if any doctor, who had executed an undertaking/surety bond, is interested in joining the PG course with clear cut intention/undertaking that after completion of PG course, he would serve the State of Uttarakhand for a minimum period of five years, then he should be permitted to join PG course and after completion of PG course, should be allowed to serve State of Uttarakhand, as per undertaking furnished by him pursuant to the Government Order dated 30.06.2006. If he fails to serve thereafter, he has to refund the amount of financial assistance availed by him along with prevailing bank interest payable on the F.D.R. of 60 months. 16. There may be some cases where doctor has served for certain period before joining the PG course and after completion of PG course joins to serve State of Uttarakhand for rest of the period, then service rendered by the doctor before joining the PG course shall be counted/adjusted. 17. On being asked repeatedly, Mr. Anil Kumar Joshi, learned Addl. CSC for the State of Uttarakhand, fairly submits that language of Government Order dated 30.06.2006 does not stipulates that doctor has to serve for a minimum period of 5 years only in remote area. Mr. Joshi, seems to be correct in saying that doctor is required to serve for a minimum period of five years at the place where State Government decides to post such doctor, at its own wisdom, considering the local requirement. 18. Let me now examine the submission of learned counsel for the petitioners that if doctor has served for any period out of 5 years and is not interested to serve for complete period of 5 years, in that event, would he be required to refund entire amount of financial help or would he only be required to pay the amount proportionate to the remaining period of five years? 19. I have once again carefully perused the Government Order dated 30.06.2006 as well as surety bond furnished by the petitioners. 19. I have once again carefully perused the Government Order dated 30.06.2006 as well as surety bond furnished by the petitioners. Language clearly stipulates that doctor has to serve for a period of minimum five years, failing which he has to refund the amount of financial assistance availed by him. Therefore, if any doctor fails to serve for minimum period of 5 years and discontinue in between, then of course, he has to refund the entire financial help rendered by the State Government to such doctor. In that event, equity demands that State Government shall also be at liberty to seek refund alongwith prevailing bank interest payable on the F.D.R. of 60 months. 20. Submission of learned counsel for the petitioners that Doctors should not be allowed to waste their knowledge waiting for the appointment, to serve for the period of five years, for indefinite period seems to be sound and justified. 21. I find force in the submission of learned counsel for the petitioners that if Government fails to offer appointment, after completion of internship after MBBS or P.G. course, within two months, then the period, doctor remains idle waiting for his appointment, shall be liable to be adjusted against the minimum period of five years; however, if State Government does not issue appointment letter within a year from the date of completion of Internship of M.B.B.S. or P.G., in that event, it should be deemed that State Government has waived its right in favour of such Doctor and such Doctor should be at liberty to start his independent practice or to join services after the expiry of one year and State Government should not be permitted to recover the amount of financial assistance availed by such Doctor. 22. Learned counsel for the petitioners are correct and justified in submitting that if Doctor is ready and willing to serve the State even after the completion of five years, he should not be thrown out of service without any valid reason and should be permitted to serve with all benefits of Government Servants (Medical Officers) till he attains the age of superannuation. Otherwise, after five years such Doctor may not be eligible to join elsewhere. 23. Otherwise, after five years such Doctor may not be eligible to join elsewhere. 23. There may be some cases where MBBS student had availed financial help not for the entire MBBS course but had availed financial help only for a year or two, then such doctor has to refund the amount which he had actually availed as financial help, in the event of breach of surety bond/undertaking alongwith prevailing bank interest payable on the F.D.R. of 60 months. 24. Since Government Orders dated 24.06.2006 and 21.05.2005 did not provide furnishing of surety bonds/undertakings to serve State of Uttarakhand for minimum period of five years, as a condition precedent to avail the financial assistance, therefore, such doctor, who has availed financial assistance, prior to 30.06.2006 too and had furnished surety bond/undertaking to avail financial assistance after the Government Order dated 30.06.2006 in the event of breach of undertaking/surety bond, he has to refund the amount of financial assistance availed by him after Government Order dated 30.06.2006 only with prevailing bank interest payable on the F.D.R. of 60 months. 25. Let me now summarized the observations made hereinbefore: i. Petitioners shall not be denied admission in PG course within the State or outside the State, if they are ready to furnish undertaking to the effect that after completion of PG course, they will honour the surety bond/undertaking executed by them for serving State of Uttarakhand for minimum period of five years. ii. Petitioners, who had furnished surety bonds/undertakings pursuant to the Government Order dated 30.06.2006 for availing the benefit of the financial help have to serve State of Uttarakhand for a minimum period of five years either before joining the PG course or after completing the PG course. Period of service, if any, rendered before joining the PG course shall be adjusted in the total period of service of five years. iii. Doctor, who has furnished surety bond/undertaking to serve the State of Uttarakhand for minimum period of 5 years, can be posted at any place where Government requires his services. On joining the services, he shall be provided all the benefits of Government Servant (Medical Officer) as per the prevailing Rules and Law. If Doctor is ready and willing to serve the State even after completion of five years, he shall be allowed to continue till he attains the age of superannuation, with all the benefits of conditions of services. iv. If Doctor is ready and willing to serve the State even after completion of five years, he shall be allowed to continue till he attains the age of superannuation, with all the benefits of conditions of services. iv. Doctor, who has furnished undertaking/surety bond, fails to serve State of Uttarakhand for the minimum period of five years, has to refund the actual amount of financial help received by him after Government Order dated 30.06.2006 alongwith prevailing bank interest payable on the F.D.R. of 60 months. v. State Government has to offer appointment letter within 60 days from the date of completion of internship of MBBS course or within 60 days from the date of completion of PG course and if State Government fails to offer appointment letter within 60 days then period, for which such doctor remains idle, for no fault of him, shall be adjusted in the total period of 5 years of mandatory service. vi. It is also made clear that if no appointment letter is offered to such doctor within one year from the date of completion of internship of MBBS course or PG course, thereafter, right of the State Government to ask the doctor to serve minimum period of 5 years or to refund the amount shall be deemed to have been waived in favour of such Doctor on the expiry of one year. 26. With the above observations, all the writ petitions along with all the applications stand disposed of. 27. Let copy of this judgment be placed in each connected petition.