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Madhya Pradesh High Court · body

2020 DIGILAW 1060 (MP)

Swati Tiwari v. State of M. P.

2020-10-08

RAJEEV KUMAR DUBEY, SANJAY YADAV

body2020
ORDER : Sanjay Yadav, J. 1. Petitioners seek direction to the respondents to defer the Mandatory Rural Service Bond upto the completion of Super Speciality Course and to release the original documents of the petitioners. 2-Petitioners have completed their Master of Surgery Courses. That while taking admission to Post Graduate Medical Courses each petitioner submitted bonds with an undertaking to undertake the compulsory rural services for a period of one year. The bond amount was Rs.10,00,000 (Rupees Ten Lacs). The undertaking given by each student was: ^^4- eSa ,rn~}kjk ;g ca/ki= fuEu 'krksZ ij fu"ikfnr djrh@djrk gwa fd %& ¼v½ eSa fpfdRlk@nar fpfdRlk LukrdksRrj fMxzh@fMIyksek ÁkIr djus ds mijkar 'kklu }kjk funsZf'kr xzkeh.k {ks=ksa esa fu/kkZfjr dh xbZ vof/k rd vfuok;Z :i ls fpfdRlk lsok Ánku d:axh@d:axkA ¼c½ ;g fd mijksDrkuqlkj 'kklu }kjk funsZf'kr LFkkuksa ij fu/kkZfjr vof/k ds fy;s fpfdRlk lsok djuk esjs fy;s ca/kudkjh jgsxkA ¼l½ eSa fuEu ckrksa ds fy, viuh lgefr Ánku djrh@djrk gwa %& ¼1½ ;g fd e/;Áns'k }kjk le; ij fn, tkus okys funsZ'kksa@vuqns'kksa dk ikyu djus gsrq eSa opuc) jgqaxh@jgqaxkA ¼2½ ;g fd fu/kkZfjr vof/k ¼ihŒthŒ fMxzh ikB~;Øe gsrq vFkok fMIyksek gsrq ,d o"kZ dh 'kkldh; lsok 'kklu }kjk fufnZ"V LFkku ij u djus dh fLFkfr dks ihŒthŒ fMxzh gsrq 10]00]000@& ¼:i;s nl yk[k ek=½ vFkok fMIyksek ikB~;Øe gsrq :i;s 8]00]000@& ¼:i;s vkB yk[k ek=½ dk 'kklu dks Hkqxrku djus dk opu nsrh@nsrk gwaA½ ¼n½ ;g fd bl ca/ki= ds Áko/kkuksa dk mYya?ku gksus dh n'kk esa egkfo|ky; esa tek ewy nLrkost okil ÁkIr djus dk gdnkj ugha gksmaxk@gksmaxhA** 2. During final stages of Post Graduate Courses petitioners appeared for the National Eligibility Cum Entrance Test for Super Speciality Courses (NEET SS-2020) and have been selected for various Super Speciality Courses. However, as the original documents are required for admission to Super Speciality Course which the petitioner can get only if they undergo one year Rural Services or deposit Bond amount, they have approached this Court for waiver of condition of Bond. 4-The issue as to whether the One Year Compulsory Rural Service or deposit of entire Bond money in lieu thereof can be waived or deferred came up for consideration before Coordinate Benches of this Court in Writ Petition No.13452/2019 (Ku. Neeti Agarawal vs. State of M. P. and others) and Writ Petition No.7714/2020 (Dr. 4-The issue as to whether the One Year Compulsory Rural Service or deposit of entire Bond money in lieu thereof can be waived or deferred came up for consideration before Coordinate Benches of this Court in Writ Petition No.13452/2019 (Ku. Neeti Agarawal vs. State of M. P. and others) and Writ Petition No.7714/2020 (Dr. Amit Kumar Jain and others vs. State of Madhya Pradesh and others) at Gwalior and Jabalpur wherein claim for waiver or deferment has been negatived by relying on the decision by Hon’ble Supreme Court in Writ Petition (Civil) No.376/2018 (Association of Medical Super Speciality Aspirants and Residents & Ors. vs. Union of India & Others) decided on 19.08.2019; wherein it was held: “17-Entry 66 of List I of the 7th Schedule to the Constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7th Schedule deals with education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds. Therefore, the States are free to legislate on the subject matter of medical bonds. Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature. Even in the absence of any legislation, the State Government has the competence to issue executive orders under Article 162 of the Constitution on matters over which the State legislature has the power to legislate. The Notifications issued by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to post-graduate courses and super Specialty courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected. II. The field of bonds requiring compulsory employment is not covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected. II. Violation of Fundamental Rights: Article 14 : A. Arbitrariness 18-The Appellants are aggrieved by the decision of the State Governments imposing conditions for their admission in the post-graduate courses and super Speciality courses. According to them, the State Governments have understood the decision of this Court in Harsh Pratap Sisodia (supra) to be a restraint on the exercise of their power in matters relating to eligibility criteria for admission to medical course. Suddenly, the introduction of the compulsory bonds after 15 years of the judgment in Harsh Pratap Sisodia (supra) is the result of decision taken by the State Governments which is dubbed by the Appellants as arbitrary. This Court in Harsh Pratap Sisodia (supra) was concerned with the additional eligibility criteria being introduced by the State Governments for the 15% All India Quota students. The decision taken by the State Governments to impose a condition of compulsory bond for admission to post-graduate courses and super Speciality is on the basis of relevant material. Huge infrastructure has to be developed and maintained for running medical colleges with postgraduate and super Speciality courses. The amount of fees charged from the students is meagre in comparison to the private medical colleges. Reasonable stipend has to be paid to the doctors. Above all, the State Governments have taken into account the need to provide health care to the people and the scarcity of super specialists in their States. Consequently, a policy decision taken by the State Governments to utilize the services of doctors who were beneficiaries of Government assistance to complete their education cannot be termed arbitrary. B. Reasonableness 19-Reasonableness is a ground that pervades through the submissions made by the counsel on both sides. In the State of West Bengal, the requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of West Bengal, the requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of Tamil Nadu, the bond condition was that a doctor has to serve for ten years in the State and in default of which, the doctor was to pay Rs.2 Crores. This was reduced to two years and Rs.50 Lakhs. The Armed Forces Medical College imposes a condition of five years compulsory service in the Army for post-graduate and super Speciality doctors who prosecuted their study in the college. They have an option of not serving for five years by recompensing the Government by paying Rs.25 Lakhs. The main contention of the counsel appearing for the Appellants is that the condition of a long period of service that is imposed is unreasonable. The basis for the submission is that they have already served the society by working in Government hospitals while undergoing their course. Further conditions imposed on them would impede the progress of their careers. Restrictions placed on their choice of place of work are also unreasonable according to them. An alternate submission made by the counsel appearing for the Appellants is that the imposition of the condition of compulsory bond should be reasonable and the exit clause should be relaxed. Notifications issued by the State Governments imposing a condition of compulsory service and a default clause are per se not unreasonable. However, we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be reasonable. The State Governments and the Armed Forces Medical College are directed to consider imposing the condition of compulsory service period of two years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs. Article 19: 20-According to the Appellants, the right to carry on their profession which is guaranteed by Article 19(1)(g) is violated by the compulsory bonds. They contend that the compulsory bonds place a restriction on their right to carry on their profession on completion of their course. 20 Lakhs. Article 19: 20-According to the Appellants, the right to carry on their profession which is guaranteed by Article 19(1)(g) is violated by the compulsory bonds. They contend that the compulsory bonds place a restriction on their right to carry on their profession on completion of their course. It is also submitted that any restriction on their right to carry on their profession by the State Government can be made only by a “law” as per Article 19(6) of the Constitution. Consequently, the Notifications that were issued by the State Governments fall foul of Article 19(1)(g). The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate and super Speciality courses. Conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a case pertaining to admission to a college. There is no doubt, that the condition that is imposed has a connection with the professional activity of a doctor on completion of the course. However, the Appellants have, without any protest, accepted the admissions and executed the compulsory bonds. Execution of bonds is part of a composite package. We are in agreement with the judgment of the Calcutta High Court that the Appellants have not been able to succeed in their attempt of assailing the Notifications for being violative of Article 19(1)(g) of the Constitution. We uphold the said finding of the Division Bench. 28-The State’s obligations are not satisfied solely by refraining from imposing limitations on the right to human dignity. The State must also take action to protect human dignity and to facilitate its realization. The constitutional right to dignity is intended to ensure human beings’ political and civil liberties as well as their social and economic freedoms. 33-The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. 33-The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected. 35-The submission of Mr. Huzefa Ahmadi, learned Senior Counsel for the Appellants is that the conditions of the bond per se amount to ‘forced labour’ and thus are violative of Article 23 (1) of the Constitution. Mr. Dwivedi expostulated the said submission by referring to Article 23 (2) which confers power on the State to impose compulsory service for public purpose. Reliance was placed upon the Constituent Assembly Debates by Mr. Dwivedi explaining the scope of compulsory employment for public purpose under Article 23 (2) of the Constitution of India. The Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour’, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour’. 38-Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act. 40-The upshot of the above discussion is that the Writ Petitions and the Appeals deserve to be dismissed. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act. 40-The upshot of the above discussion is that the Writ Petitions and the Appeals deserve to be dismissed. Consequently, all the Doctors who have executed compulsory bonds shall be bound by the conditions contained therein.” 5-In view whereof, since the petitioners having given the Bond and undertaking that they will render One Year Compulsory Rural Service on completion of their Post Graduate Courses, there is no right to seek waiver thereof. 6-In case the petitioners are not inclined to serve as per the undertaking given, they are at liberty to deposit the Bond amount of Rs.Ten Lacs each with the State Government and take back the original documents. 7-With these observations, petition fails and is dismissed. No costs.