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2021 DIGILAW 192 (HP)

Akash Thakur v. State of H. P.

2021-03-31

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present writ petition under Article 226 of the Constitution of India is maintained by the petitioners against the respondents praying therein for the following substantive reliefs : (i) “That impugned notification dated 27.02.2019, Annexure P2, issued by respondent No.1, whereby it was implemented retrospectively, may kindly be quashed and set aside; (ii) That the action of the respondent-authorities in compelling/forcing the petitioners to execute bond(s) in view of notification dated 27.02.2019, Annexure P2, and thereafter not allowing the petitioners to opt for the bond(s) already executed by them at the time of admission in view of subsequent notification dated 13.06.2019, Annexure P4 (whereby notification dated 27.02.2019 has been amended), may kindly be declared as null and void; (iii) That the letter dated 31.08.2020/ 04.09.2020, Annexure P8, whereby the representations of petitioners No.2 & 3 have been rejected, may kindly be quashed and set aside; (iv) That the respondent-authorities may kindly be directed to consider the petitioners governed by the provisions of the bond (s) executed by them at the time of their admission to Post-Graduation courses in the year 2017(Batch 20172020); (v) That the respondent-authorities may kindly be directed to return the original record of MBBS.” 2. As per the petitioner, they having qualified the National Eligibility Entrance TestPG (NEETPG) 2017 and being eligible to take admission in the State of Himachal Pradesh, had submitted the application form for counseling and admission for PG degree course to the respondent-authorities. Petitioner No.1 was selected to undergo Post Graduation course, i.e. M.D. (Pediatrics), from Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., as an inservice candidate under the State quota in the year 2017. 3. It has been submitted that petitioner No.2 was selected to undergo Post Graduation course, i.e. M.D. (Dermatology, Venerology and Leprology) from Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., as a direct candidate under the AllIndia quota in the year 2017. 4. It has been averred that similarly petitioner No.3 was selected to undergo Post Graduation course, i.e. M.D. Pediatrics) from Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., as a direct candidate under AllIndia quota in the year 2017. 4. It has been averred that similarly petitioner No.3 was selected to undergo Post Graduation course, i.e. M.D. Pediatrics) from Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., as a direct candidate under AllIndia quota in the year 2017. Further, it has been submitted that as per the Prospectus, there was condition for executing a bond for all the candidates (All India Quota and State Quota) to serve the State for five years after completion of the PG course and also that the selected candidates are required to execute a bank guarantee to the tune of Rs.10.00 lakhs (i.e. Rs. 3.00 lakhs in first and second year respectively and Rs.4.00 lakhs in the third year) and that the petitioners after having understood the conditions given in the prospectus, executed the bond(s) with the State of H.P. on the prescribed format (Appendix6 attached with the prospectus) to the tune of Rs.10 lakhs (Rupees Ten lakhs only) to serve the State at least for a period of five years after completion of their respective courses, failing which to deposit the bond money, i.e. FDR amounting to Rs.10 lakhs in lump sum in a time bound manner, in the month of May, 2017 at the time of admission. 5. It has been submitted that the respondent-State, vide notification dated 27.02.2019, Annexure P2, notified PG/ Super Specialty Policy for regulating admissions to various Post Graduation and Super Specialty course in Medical Education applicable in the State of H.P. Further, that Clause6 of the policy deals with terms and conditions of bond for Post Graduation and as per policy, a candidate had to furnish a bond in the form of legal undertaking to serve the State for four years in case of inservice candidates, like petitioner No.1 and for two years in case of direct candidates, like petitioners No.2 and 3, failing which, the candidate shall have to pay Rs.40,00,000/to the State Government. It has been submitted that the candidates are also required to furnish undated cheques from a Scheduled Bank to the tune of Rs.40,00,000/in the name of Director of Health Services, H.P. and are also required to deposit their original Bachelors Degree with the DHS (in case of GDOs) or DME (in case of direct candidates). It has been submitted that the candidates are also required to furnish undated cheques from a Scheduled Bank to the tune of Rs.40,00,000/in the name of Director of Health Services, H.P. and are also required to deposit their original Bachelors Degree with the DHS (in case of GDOs) or DME (in case of direct candidates). It has been submitted that as per Clause 12.2, the policy was made applicable to every candidate pursuing Post Graduation (irrespective of year of joining), i.e. retrospectively, and any such candidate pursuing Post Graduation, is mandatorily required to furnish a bond as per policy within one month of the notification of the policy and the FDR was to be returned after execution of the bond. Further, it has been averred that, as per the policy, if a candidate fails to execute the bond, the FDR already submitted, will be forfeited and appropriate action shall be initiated against the defaulting candidate and that the respondent-State illegally and arbitrarily notified the policy by giving it retrospective effect. 6. It has been averred that respondent No.4, vide letter dated 02.03.2019, addressed to the Professors and Heads of the different Departments, including the departments of the petitioners, circulated the notification dated 27.02.2019 and the Professors & Heads of all the Departments were requested to circulate the policy to all the PG students under their control and direct them to furnish the bond as per new Policy in the form of a legal undertaking as per Annexure-B of notification dated 27.02.2019 and it was specifically mentioned that if any candidate fails to do so, the FDR already submitted shall be forfeited and appropriate action shall be initiated against the defaulting candidate. 7. It has been submitted that the respondent-authorities being in a superior position and the petitioners having no bargaining powers, more particularly, when they are pursuing their Post Graduation courses, which requires a lot of hard work and patience, the petitioners could not raise their voice against the said illegal and arbitrary action on the part of the respondent-authorities, compelled the petitioners to execute a new bond as per the new PG policy, which was circulated to the petitioners vide letter dated 02.03.2019 and the petitioners thereafter pursued their courses and completed the same in the month of June/July, 2020. 8. 8. It has been submitted that the respondent-State, vide notification dated 13th June, 2019, Annexure P4, has replaced Clause 12.2 of Post Graduation/ Super Specialty Policy dated 27.02.2019 and thereby had given the candidates, who are pursuing their Post Graduation either (i) to furnish bond as per policy dated 27.02.2019 and to avail concessions in terms of mandatory service and relaxation in FDRs visavis previous policy in this regard or (ii) if such candidate pursuing Post Graduation is not willing to furnish bond as per policy dated 27.02.2019, he shall be continued to be governed by the provisions of the bond executed by him/her at the time of admission. Further that the respondent-authorities never brought the aforesaid notification to the knowledge of the petitioners at any point of time as they have done on the earlier occasion, when they have circulated the notification dated 27.02.2019. 9. It has been averred that when the petitioners and the other batchmates/ colleagues of the petitioners came to know about the amendment in the policy, vide notification dated 13.06.2019, in the month of July/August, 2020, they represented to the authorities to consider their bond executed by them at the time of admission by disregarding the bond executed by them in view of the new PG policy dated 27.02.2019. Further that two of the batchmates of the petitioners, namely, Dr. Akansha Singh and Dr. Charulata Purbia, represented to the respondent-authorities that they are unable to serve the State due to their family circumstances and requested the respondent-authorities to accept the FDRs amounting to Rs.10 lakhs in lieu of bond money. Similarly, petitioners No.2 and 3 also represented to the respondent-authorities that they are also unable to serve the respondent-State due to their family circumstances and requested to accept the FDRs to the tune of Rs.10 lakhs each in lieu of bond and that petitioner No.1 had also requested the respondent-authorities to consider him bound by the initial bond executed by him at the time of admission and to disregard the bond executed by him subsequently in view of the new PG policy. 10. 10. It has been submitted that respondent No.3 had accepted the representations made by the batchmates/ colleagues of the petitioners on 25.7.2020 and respondent No.3 on 31.7.2020 sought direction of respondent No.1 on the representations made by petitioners No.2 & 3 and on 27.8.2020, sought the directions of respondent No.1 on the representation made by petitioner No.1. 11. It has been submitted that to the utter surprise of petitioners No.2 & 3, respondent No.1 has sent letter dated 31.08.2020/04.09.2020 to respondent No.3, thereby informing him that since the petitioners have executed bond as per new PG/ Super Specialty policy, as such, they will be governed by the provisions of the bond as per new policy and further advised that if petitioners No.2 & 3 herein fail to join services under the State Government to file civil suit for recovery of bond money. 12. It has been averred that respondent No.3 has sought the decision of the Government on the representations of petitioners No. 2 and 3, whereby they have represented to accept bonds and FDRs to the tune of Rs.10 lakhs each at the time of their admission and disregard the bond submitted by them subsequently as per PG/SS policy dated 27.2.2019, in view of the amendment of the policy dated 13.6.2019, but respondent No.1 rejected the representations of petitioners No.2 and 3 without any speaking order and only noted that since petitioners No.2 and 3 have executed the bond as per new PG policy and as such will be governed by the provisions of the bond of new policy. 13. It has been submitted by the petitioners that the respondent-authorities have retained the original MBBS degrees and have not given the original certificate(s) of MD Course(s) of the petitioners, which action on the part of respondent-authorities is illegal and arbitrary. Moreover, the petitioners are willing to comply with the bond executed by them at the time of admission and as such, the coercive steps of retaining the degrees of the petitioners are not sustainable in the eyes of law, hence, the petitioners have prayed that respondent-authorities be directed to release the same to the them. 14. Moreover, the petitioners are willing to comply with the bond executed by them at the time of admission and as such, the coercive steps of retaining the degrees of the petitioners are not sustainable in the eyes of law, hence, the petitioners have prayed that respondent-authorities be directed to release the same to the them. 14. Reply to the petition filed and as per the respondents, neither any legal, legitimate and enforceable right of the petitioners stood ever infringed and denied to them, nor they are aggrieved of any action on the part of the respondents and the petitioners filed the present writ petition without there being any legal cause of action to them, hence, the petition deserves dismissal in the interest of justice. Further, it has been submitted that the Government has the prerogative and well within its right to regulate and frame any policy for regulating admissions to various Post Graduation and Super Specialty Courses in Medical Education, applicable in the State of Himachal Pradesh, keeping in view the various existing and prevailing circumstances and facts. It has been submitted that keeping in view the deficiency of doctors in the peripheral postings and the problems being faced by the Resident Doctors pursing Post Graduation in various Colleges of the State, the State Government has notified the new Policy on 27.2.2019, Annexure P2, with its subsequent amendment vide notification dated 13.6.2019, Annexure P4, which both notifications having been issued on the approval of the Cabinet, had/have the statutory force of law. 15. It has been submitted that at the time of the initial joining by the petitioners for pursuing their Post Graduation Course, as direct candidates, through All India Quoa in the Government Medical Colleges of the State i.e. Dr. Rajendra Prasad Government Medical College, Tanda in the year, 2017, the Policy dated 20.3.2017 was existing and prevailing and according to Clause 3(iii) of the above policy dated 20.3.2017, every candidate (both inservice and Direct), will have to execute a bond to the effect that they will serve the State of H.P. for a period of five years after completion of PG Course, which clause of the policy stood also incorporated at 3.4 (Page 32) of the Prospectus, Annexure P1. Further, it has been submitted that it stood also incorporated at Clause 3.5 of the above Prospectus that the candidates selected for PG Degree/ Diploma will have to execute a Bank Guarantee, which shall be amounting to Rs.10 lakhs. It has been submitted that however, subsequently, the Policy dated 27.2.2019, Annexure P2, came into existence, which under Clause 6.2.1 provided that all the candidates shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which, the candidate shall have to pay Rs.40 lakhs to the State Government. 16. It has been averred that the petitioner had themselves furnished the undated cheques to the tune of Rs.40 lakhs in terms of Policy in question, meaning thereby that they had themselves opted to be governed under the said Policy. Further, that after completion of their Post Graduation Course, the various candidates, including the petitioners had filed the representations, thereby requesting for the change of bond from the policy, Annexure P2 to the old bond/policy as mentioned in the prospectus, Annexure P1 at the time of their admission, whereafter the matter with complete facts was taken up with the Government by the present replying respondents for necessary decision. The Government, in turn, has clarified vide its letter dated 31.8.2020, Annexure P8, that since the applicants have executed the bond as per new PG/Super Specialty Policy, as such, they will be governed by the provisions of the bond as per new PG/Super Specialty Policy, Annexure P2, as amended from time to time, which decision being just and proper, deserves to be upheld as good for all intents and purposes in the matter. 17. It has been submitted that it was only after completion of their Post Graduation courses in the year, 2020 that the various candidates, including the petitioners had filed the representations, thereby requesting for the change of bond from the Policy dated 27.2.2019, Annexure P2, to the old bond/policy, as mentioned in the Prospectus, Annexure P1, at the time of their admission. Hence, the replying respondents have prayed for dismissal of the present petition. 18. We have heard the learned counsel for the parties and gone through the record of the case. 19. Hence, the replying respondents have prayed for dismissal of the present petition. 18. We have heard the learned counsel for the parties and gone through the record of the case. 19. Learned counsel for the petitioners has argued that the respondents when changed the condition of bond, that should have been intimated to the petitioners so that the petitioners should have done accordingly. He has argued that the writ petition is maintainable and the respondents are required not to consider the enhanced bond amount and use it as per the notification. On the other hand, learned Senior Additional Advocate General, on behalf of the respondents-State, has argued that the respondents have given the amounts knowing it fully well that the State Government is spending for their education and they are required to serve the State Government for minimum period and if they will not serve, they will have to make the payment of the bond amount and so the writ petition is liable to be dismissed. He has further argued that the petitioners cannot say that they have not been notified, as the revised notification was published in the gazette. He has further argued that the petition is barred by delay and laches and requires to be dismissed on this ground only. 20. In rebuttal, the learned counsel for the petitioners has argued that the similarly situated persons in CWP No.752 of 2019 and CWP No.1762 of 2019, were granted the benefit, so the petitioners be also given the benefit of the latest notification. 21. To appreciate the arguments adduced by the learned counsel for the parties, we have gone through the record in detail. The petitioners when joined for the Post Graduate Course, as direct candidates, in Govt. Medical College, i.e. Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., in the year 2017, the policy dated 20.3.2017 was existing and prevailing and Clause 3(iii) of the policy contains the following condition: “every candidate, (both inservice and Direct), will have to execute a bond to the effect that they will serve the State of HP for a period of five years after completion of PG Course which clause of the policy stood also incorporated at 3.4 (Page 32) of the Prospectus, Annexure P1. Further, it stood also incorporated at Clause 3.5 of the above Prospectus that the candidates selected for PG Degree/ Diploma will have to execute a Bank Guarantee, which shall be amounting to Rs.10 lakhs. Accordingly, the petitioners having been governed by the above referred conditions of the prospectus, had to act accordingly.” 22. Thereafter, the fresh Policy dated 27.2.2019 came into existence, in which Clause 6.2.1 was added, which is as under: “all the candidates shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which the candidate shall have to pay Rs.40 lakhs to the State Government.” 23. The policy dated 27.2.2019 at clause 12.2 further provided that this policy shall be applicable to every candidate pursuing Post Graduation (irrespective of year of joining) and all such candidates shall have to furnish a bond as per this policy. Relevantly vide subsequent amendment in the policy dated 27.2.2019, Annexure P2, vide notification dated 13.6.2019, Annexure P4, the clause 12.2 stood replaced by 12.2(a) and (b), which is as under: “12.2(b) That in case any candidate pursuing post graduation is not willing to furnish bond as per the PG/Super Specialty Policy dated 27.2.2019, he/she shall be continued to be governed by the provisions of the bond executed by him/her at the time of admission.” 24. It is pertinent to note here that the petitioners had themselves furnished the undated cheques to the tune of Rs.40 lakhs in terms of the policy dated 27.2.2019, Annexure P2, meaning thereby that they had themselves opted to be governed under the said policy. However, after completion of their Post Graduation course, the various candidates, including the petitioners, had filed the representation, Annexure P5 (colly) thereby requesting for the change of bond from the policy AnnexureP2, to the old bond/policy as mentioned in the Prospectus, Annexure P1, at the time of their admission, whereafter the matter with complete facts was taken up with the Government by the Department vide letters, Annexure P7(colly), for necessary decision. The Government, in turn, has clarified vide its letter dated 31.8.2020, Annexure P8, that since the applicants have executed the bond as per new PG/ Super Specialty policy, as such, they will be governed by the provisions of the bond as per new PG/Super Specialty policy (Annexure P2), as amended from time to time, in just and proper manner. 25. The Government, in turn, has clarified vide its letter dated 31.8.2020, Annexure P8, that since the applicants have executed the bond as per new PG/ Super Specialty policy, as such, they will be governed by the provisions of the bond as per new PG/Super Specialty policy (Annexure P2), as amended from time to time, in just and proper manner. 25. The petitioners have themselves furnished the undated cheques to the tune of Rs.40 lakhs in terms of the policy dated 27.2.2019, Annexure P2. It means that they had voluntarily issued the undated cheques as per the Policy. 26. Since the applicants have themselves submitted the bonds/ cheques to the tune of Rs.40 lakhs, as a security for their service in the State for specified period after completing the Post Graduation at the expenses of the State of H.P., they are liable to be governed by the said conditions. Now, if at all any cause accrued in favour of the petitioners, that accrued on 27.2.2019 and they could have assailed the policy within a reasonable time, but they have chosen to come to the Court after 20.9.2020, i.e. after a period of more than one and a half year. The petitioners in CWP No.752 of 2019 and CWP No.1762 of 2019, had come to the Court within the reasonable time, i.e. immediately and the present petitioners cannot be compared to take the advantage of decision of those writ petitions, as they kept on waiting. The cause of action does not accrue from the date of decision of the similar cases, but it accrues from the date the right accrues in favour of the petitioners. Thus, petition is barred by delay and laches and requires dismissal. 27. For the foregoing observations, we find no merit in the instant writ petition, which deserves dismissal and the same is dismissed accordingly. The parties are left to bear their own costs. 28. Pending application(s) if any, shall also stands disposed of.