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2020 DIGILAW 532 (HP)

Satish Kanwar v. State of Himachal Pradesh

2020-08-27

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Jyotsna Rewal Dua, J. - Petitioner is a Medical Officer in service of State Health Department. His request for issuance of No Objection Certificate (NOC) to join as Senior Resident at Post Graduate Institute of Medical and Education Research, Chandigarh (in short PGIMER) has not been allowed, hence this writ petition has been preferred. 2. Heard learned counsel for the parties and gone through the record as well as the written instructions imparted by the respondents to the learned Senior Additional Advocate General and placed as such on the record. 3. Undisputed facts which are relevant for deciding the petition are :- 3(i) Petitioner is serving as Medical Officer in the State Health and Family Welfare Department. He was appointed on 11.11.2009 on contract basis. His services were regularized on 24.09.2015. 3(ii) Name of the petitioner was sponsored by the respondents, on his request, for doing Post Graduation (Masters) in the department of Hospital Administration from PGIMER, Chandigarh for academic session 2018-2020. In accordance with the applicable policies for doing Post Graduation, petitioner executed bonds/FDRs, in all amounting to Rs. 47 lacs ( Rs. 7 lacs in 2018 and Rs. 40 lacs in 2019). Under Clause 6.1 of the policy, the petitioner has bonded himself to serve the State for atleast five years, including one year of mandatory field posting (outside Medical Colleges) after completion of his P.G. Course. Clause 6.1 is reproduced hereunder :- "6.1 Terms and conditions of Bond for Post Graduation As the Government incurs substantive expenditure on each candidate for doing Post Graduation and also pays them full pay along with all allowances and seniority during the course, every GDO (regular/contract) who have been sponsored to pursue Post Graduation within the State in Government Medical/Dental Colleges shall have to furnish a bond to serve the State for at least four years including mandatory first year of field posting after completion of their respective courses. Similarly, in case of GDOs sponsored for Post Graduation outside the State on sponsored quota seats of autonomous Institutions, as the Government pays them full pay alongwith increments during the course and they are not even serving the State during the course, every such GDO (regular) shall have to furnish a bond to serve the State for at least five years including mandatory first year of field posting after completion of their respective courses. Since the direct candidate who pursues Post Graduation within the State in Government Medical/Dental Colleges on State/All India Quota stand on a different footing as they are not entitled to service benefits including full pay (with allowances and increments) and chances of regularization to which their GDO counterparts are entitled ; however, keeping in view the resources expended in their education by the Government including payment of stipend, every such direct candidate shall have to furnish a bond to serve the State for at least two years including mandatory first year of field posting after completion of their respective courses." 3(iii) Petitioner, after completing the Post Graduation, joined his duties in the Directorate of Health on 1.07.2020. Presently, he is posted at Civil Hospital, Sarkaghat, District Mandi, Himachal Pradesh The petitioner applied for issuance of NOC for joining as Senior Resident in PGIMER, Chandigarh. This request has been turned down by the respondents on 24.06.2020. Since NOC has not been issued in his favour, therefore, instant writ petition has been preferred, inter alia, with the following prayers :- "(i) This Hon'ble Court may direct the respondents to issue a No Objection Certificate to the petitioner and relieve the petitioner from his duties enabling the petitioner to join as Senior Resident at Post Graduate Institute of Medical & Education Research at Chandigarh. (ii) That the Hon'ble Court may direct the respondents to ensure continuity in regular service to the petitioner in Health Department of Himachal Pradesh and the pay and promotional channels of the petitioner may be ordered to be protected till the time the petitioner completes his Senior Residency in Hospital Administration at Post Graduate Institute of Medical Education and Research, Chandigarh." 3(iv) Learned counsel for the petitioner submitted that petitioner has since been issued an appointment order by PGIMER, Chandigarh on 25.07.2020 as Senior Resident. However, for want of NOC from the respondents-State, he is unable to join PGIMER, Chandigarh. 4. 4(i) The request of the petitioner for grant of NOC has been rejected by the respondents-State in view of Clause 6.6 of the Policy, dated 27.02.2019, which reads as under :- "6.6 The following shall constitute a violation of the bond to serve the State as outlined in Clause 6.1 6.6.1 Failure to join the given field posting within 10 days of issuance of orders. 6.6.2 Putting in request for EOL/Study leave/request for NOC during the mandatory period of service of the State. 6.6.3 Putting in request for Senior Residency within the mandatory first year of field posting." 4(ii) The facts noticed above clearly indicate that the petitioner, a serving doctor in the respondents-State, was initially granted permission to do Post Graduation from PGIMER, Chandigarh, subject to certain terms and conditions. For undergoing Post Graduation at PGIMER, Chandigarh, name of the petitioner was sponsored by the State Government with full pay and allowances alongside maintaining his seniority for further promotions during his Post Graduation. He had, accordingly, executed the agreement and furnished bonds in furtherance of the same. One of the conditions was that after completion of Post Graduation, he had to serve for atleast five years in the State, including mandatory first year of field posting. The petitioner presently is undergoing this first year of field posting at Civil Hospital, Sarkaghat, District Mandi, Himachal Pradesh Respondents are, therefore, justified in not granting NOC to the petitioner, at this stage, in view of the bonds submitted by the petitioner and in view of the terms and conditions of the policy under which the petitioner was permitted to do Post Graduation in PGIMER, Chandigarh. Hon'ble Apex Court in Association of Medical Superspeciality Aspirants and Residents and others Vs. Union of India and others, (2019) 8 SCC 607 , held that all doctors who have executed compulsory bonds shall be bound by the conditions contained therein. Relevant paras from the judgment are as under :- "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. 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. 39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum Co. Ltd. v. Harper's Garage (Stourport) Ltd., that :- "if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade." The High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872. 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". 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". Mere selection/appointment of the petitioner as Senior Resident at PGIMER, Chandigarh will not vest any right in him to flout the terms and conditions of the 27.02.2019 policy under which he was accorded permission to pursue Post Graduation outside the State with full pay and allowances while maintaining his seniority and promotion and towards compliance of which he had executed bonds of Rs. 47 lacs for serving the State for five years after completion of Post Graduation. In the written instructions, the respondents have also referred to Resident Doctors Policy, dated 22.06.2019, under Clause 6.1 of which, the petitioner can pursue Senior Residency within the State after completion of one year of mandatory field posting. In view of the above factual and legal position which is not rebutted by the petitioner, we find no merit in this writ petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.