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2021 DIGILAW 591 (JHR)

State of Jharkhand v. Abhishek Kumar Singh

2021-08-06

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The case has been listed under the heading for “Orders (with defect)”. 3. Perused the office note as also stamp reporting dated 29.07.2021. 4. The defect, pointed out by the office, is ignored. 5. It has also been brought to the notice of this Court that the appeal has been filed within time. 6. In view thereof, learned counsel for the appellants does not want to press the application for condonation of delay (I.A. No. 6621 of 2020). 7. Accordingly, I.A. No. 6621 of 2020 is dismissed as not pressed. L.P.A. No. 416 of 2020 8. With the consent of learned counsel for the parties, the appeal is being heard and is disposed of at this stage. 9. The instant intra-court appeal is preferred against the order/judgment dated 19.10.2020 passed by learned Single Judge in W.P. (C) No. 2628 of 2018, whereby and whereunder the learned Single Judge while allowing the writ petition has held that Resolution as contained in Memo No.9/Chi.Maha-07-08/2014 (part-1)-179(9) dated 24th April, 2018 cannot be made applicable to the petitioners by enforcing it retrospectively and as such bonds executed by them in terms of said Resolution were quashed and set aside. 10. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under: On 17th October, 2017, the National Board of Examinations (NBE) published an advertisement for the National Eligibility cum Entrance Test (Postgraduate), for admission to MD/MS/Postgraduate/Diploma Courses, 2018. The writ petitioners appeared and were declared qualified in the said entrance test and thereafter counselling process was conducted by the Medical Counselling Committee under the Director General of Health Services, Ministry of Health and Family Welfare, Government of India. After completion of counselling process of several rounds, the petitioner were found to be successful and accordingly they opted for Rajendra Institute of Medical Sciences, Ranchi (in short ‘RIMS, Ranchi’). The last date for admission as well as leaving the course after completion of 2nd Round of counselling was fixed as 23rd April, 2018. After completion of counselling process of several rounds, the petitioner were found to be successful and accordingly they opted for Rajendra Institute of Medical Sciences, Ranchi (in short ‘RIMS, Ranchi’). The last date for admission as well as leaving the course after completion of 2nd Round of counselling was fixed as 23rd April, 2018. At the time of admission, Resolution No.9/Chi.Maha-07-08/14-230(9)/Ranchi dated 22nd December, 2015 (in short ‘Resolution, 2015’) was in vogue, as such they signed bond as per terms and conditions of the Resolution, 2015 and submitted all the documents and certificates in original in the institution (RIMS) i.e. on 23rd April, 2018. However, on the next date i.e., 24th April, 2018, the another Resolution, as contained in Memo no.9/Chi.Maha-07-08/2014 (part-1)-179(9) (in short ‘Resolution, 2018’), was issued under the signature of Principal Secretary-Department of Health and Family Welfare, Govt. of Jharkhand making amendment to Resolution of the year 2015. According to the writ petitioners, as per Clause (iii) of the Resolution, 2018, bonds were required to be taken from all the students of Postgraduate (Medical/MDS) courses seeking admission in the Medical Colleges situated within the State of Jharkhand to the effect that an amount of Rs.30 lacs was to be recovered from those students who did not intend to take admission after selection. Further, Clause (iv) of the Resolution, 2018 provided that a bond would be taken from all the students of Postgraduate (Medical/M.D.S.) courses to the effect that those students who intended to leave the courses after taking admission or in the midst of academic session, they would be required to deposit Rs.30 lacs along with the amount of stipend as well as other allowances received by them during the course period in one go. As per Clause (V) of Resolution, 2018, the students after completion of Postgraduate course have to compulsorily serve under the Government of Jharkhand for a period of three years, failing which an amount of Rs.30 lacs along with the amount of stipend as well as other allowances received by the students during the course would be recovered in one go. The petitioners being aggrieved with the terms and conditions of the Resolution, 2018 approached the authority concerned i.e. Principal Secretary-Department of Health and Family Welfare, Govt. of Jharkhand on 4th May, 2018 but their grievances were not redressed. The petitioners being aggrieved with the terms and conditions of the Resolution, 2018 approached the authority concerned i.e. Principal Secretary-Department of Health and Family Welfare, Govt. of Jharkhand on 4th May, 2018 but their grievances were not redressed. The petitioners also represented before various authorities for redressal of their grievances but to no effect. It is further case of the case of the writ petitioners that after strong agitation by the senior postgraduate (Medical/MDS) students of the RIMS, Ranchi, the authorities decided that the impugned Resolution, 2018 would not be made applicable to the senior students, rather the same would be applied to the students of new session i.e., the first year postgraduate (Medical/MDS) students, the writ petitioners herein, the session of which was going to start from 31st May, 2018. The writ petitioners left with no option, approached this Court by invoking power conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (C) No. 2628 of 2018 for quashing Resolution as contained in Memo No.9/Chi.Maha-07-08/2014 (part-1)-179(9) as also new format of bond issued under the signature of Principal Secretary, Department of Health, Medical Education & Family Welfare, which was allowed holding that Resolution as contained in Memo No.9/Chi.Maha-07-08/2014 (part-1)-179(9) dated 24th April, 2018 cannot be made applicable to the petitioners by enforcing it retrospectively and as such bonds executed by them in terms of said Resolution were quashed and set aside, which is the subject matter of present intra-court appeal. 11. Mr. Sachin Kumar, learned A.A.G. II appearing for the appellants-State has raised the issue that the learned Single Judge, without appreciating the fact that the Resolution, 2018 will be applicable on the ground that the said Resolution has been approved by the Cabinet by which requirement has been made under new format of bond has been issued containing a condition of serving in the State of Jharkhand for a period of three years. 12. While on the other hand, the contention of the writ petitioners is that the Resolution, 2015 issued on 22nd December, 2015 which laid down a condition for serving one year in the State of Jharkhand will be applicable in the case of writ petitioners. 13. 12. While on the other hand, the contention of the writ petitioners is that the Resolution, 2015 issued on 22nd December, 2015 which laid down a condition for serving one year in the State of Jharkhand will be applicable in the case of writ petitioners. 13. This Court having heard learned counsel for the parties and on appreciating their arguments, deem it fit and proper to reflect certain admitted facts: The National Board of Examinations (NBE) published an advertisement for the National Eligibility cum Entrance Test (Postgraduate) on 17th October, 2017, for admission to MD/MS/Postgraduate/Diploma Courses, 2018. Pursuant thereto, the writ petitioners submitted application form for NEET-PG and appeared for examination conducted, in which they were found qualified. Thereafter, as per procedure of admission, counselling was conducted by the Medical Counselling Committee under the Director General of Health Services, Ministry of Health and Family Welfare, Government of India, in which, they participated and after completion of several round of counselling, the writ petitioners qualified and opted for Rajendra Institute of Medical Sciences, Ranchi. The last date for admission as well as leaving the course after completion of 2nd Round of counselling was fixed as 23rd April, 2018. As per terms and condition of the Resolution, 2015, which was in vogue at that time, the writ petitioners signed the bond wherein it has been stipulated that - (1)if leave the course before completion will have to deposit Rs. 10,00,000/- and stipend received during the period (2)Serve under Jharkhand Govt. one year after passing. They had also submitted all the documents and certificates in original in the institution (RIMS) on 23rd April, 2018 i.e. at the time of admission. However, on the next date i.e., 24th April, 2018, another Resolution as contained in Memo no.9/Chi.Maha-07-08/2014 (part-1)-179(9) was issued under the signature of Principal Secretary-Department of Health and Family Welfare, Govt. of Jharkhand making amendment to Resolution, 2015. The writ petitioners were aggrieved with certain clauses of the new Resolution, 2018. As per Clause (iii) of the Resolution, 2018, bonds were required to be taken from all the students of PG (medical/MDS) courses seeking admission in the Medical Colleges situated within the State of Jharkhand to the effect that an amount of Rs.30 lacs was to be recovered from those students who did not intend to take admission after selection. As per Clause (iii) of the Resolution, 2018, bonds were required to be taken from all the students of PG (medical/MDS) courses seeking admission in the Medical Colleges situated within the State of Jharkhand to the effect that an amount of Rs.30 lacs was to be recovered from those students who did not intend to take admission after selection. Further, Clause (iv) of the Resolution, 2018 provided that a bond would be taken from all the students of Postgraduate (Medical/M.D.S.) courses to the effect that those students who intended to leave the courses after taking admission or in the midst of academic session, they would be required to deposit Rs.30 lacs along with the amount of stipend as well as other allowances received by them during the course period in one go. As per Clause (V) of Resolution, 2018, the students after completion of Postgraduate course have to compulsorily serve under the Government of Jharkhand for a period of three years, failing which an amount of Rs.30 lacs along with the amount of stipend as well as other allowances received by the students during the course would be recovered in one go. With the conditions aforesaid, a format of new bond was issued to be signed by the writ petitioners. Being aggrieved with the terms and conditions of the Resolution, 2018 as also new format, the writ petitioners approached the authority concerned but to no effect, hence the writ petitioners approached before the writ Court by filing writ petition, which was allowed holding the Resolution, 2018 not applicable to the writ petitioners and new bond format issued in the light of Resolution, 2018 was quashed and set aside. 14. In the backdrop of these facts and submissions advanced by learned counsel for State to the effect that since Resolution, 2018 was passed by the Cabinet before 23rd April, 2018 i.e. prior to the date of signing of bond, therefore, the Resolution, 2018 will be applicable with respect to cases of the writ petitioners, the issue which is required to be answered in this case is as to: “Whether the effect of the Resolution, 2018 will be said to have taken its effect on the date of its approval by the Cabinet or will take its effect from the date of notification after due assent by the Governor of the State?” 15. This Court before answering this issue deem it fit and proper to refer the constitutional frame-work of the country which provides the democratic set up wherein the decision is required to be initiated by the concerned department and through a routine channel i.e. through Cabinet Secretary. Such decision or agenda will be produced before the Cabinet and once the Cabinet will approve it the same will be sent before the Governor of the State for its assent and thereafter the file will again be returned through the same channel before the concerned department for its notification and publication in official gazette, meaning thereby merely because the Cabinet has approved their agenda it will not take the shape of an order so long as the notification in this regard is issued by way of publication in official gazette and duly assented by the Governor of the State. 16. It is admitted case of the State-appellants that notification pertaining to Resolution, 2018 has come on 24th April, 2018 and by that time, the writ petitioners had signed the bond as per Resolution, 2015, therefore, the writ petitioners will be said to be governed by Resolution, 2015 and not be by the Resolution of the year 2018 as the said Resolution even though was approved by the Cabinet prior to 23rd April, 2018, the date on which the writ petitioners took admission and signed the bond, by that time it did not take the shape of an order of the State Government i.e. as on 23rd April, 2018 as till date it had not got the assent of the Governor of the State. 17. The aforesaid process of business has also been formulated by the State of Jharkhand in exercise of power conferred under Article 162 of the Constitution of India in the name and style of “Rules of Executive Business”. 17. The aforesaid process of business has also been formulated by the State of Jharkhand in exercise of power conferred under Article 162 of the Constitution of India in the name and style of “Rules of Executive Business”. However, this aspect of the matter has not been raised by the State-appellants before the writ Court about the applicability of the Resolution, 2018 on the basis of its approval by the Cabinet rather they have pleaded it is the domain of the executive to see as to which decision is best suited for the people of the State and further the stipulation made in the bond executed by the writ petitioners on 23rd April, 2018 in terms of Resolution, 2015 to the effect that any change in the terms and conditions regarding bond will be applicable as per Government order. But, admittedly, as per the discussions made hereinabove, the Resolution dated 2018 was not in operation as on 23rd April, 2018, hence such argument is not tenable, which has been dealt with by the learned Single Judge holding in the impugned order that Resolution, 2018 dated 24th April, 2018 will not be applicable retrospectively, which according to our view has rightly been held on the principle that any notification or circular cannot be implemented with retrospective effect, if it has specifically not been mentioned, and such power is only vested with the parliament or legislature and none others. 18. In order to demonstrate that it is not a case of retrospective application rather it will be said to be prospective in nature, learned counsel for the appellants-State has submitted that Resolution, 2018 had got approval by the Cabinet prior to 23rd April, 2018 the date when the bond in terms of Resolution, 2015 was executed by the writ petitioners, but as we have held hereinabove, by referring ‘Rules of Executive Business’, that merely Cabinet had approved a decision under an agenda, the same cannot take a shape of order unless assented by the Governor of State thereafter, notified in the official gazette, which admittedly has not been done in this case. Therefore, according to our considered view the point which has been raised by learned counsel for the appellants-State about applicability of the Resolution, 2018 on the basis of its approval by the Cabinet is misconceived one as such the same is hereby discarded. 19. Therefore, according to our considered view the point which has been raised by learned counsel for the appellants-State about applicability of the Resolution, 2018 on the basis of its approval by the Cabinet is misconceived one as such the same is hereby discarded. 19. This Court, after taking into consideration the facts in entirety and considering the fact that the learned Single Judge has delved upon the applicability of the Resolution, 2018 prospectively, we find no reason to interfere with the impugned order passed by the learned Single Judge. 20. At this juncture, learned counsel for the writ petitioners has submitted that the original testimonials are still with the appellants-State as such they may be directed to release the same in favour of writ petitioners. 21. Upon this, Mr. Sachin Kumar, learned A.A.G. II appearing for the appellants-State undertakes to return the testimonials in favour of one or the other writ petitioners. 22. Learned counsel for the appellants-State has submitted that doctors who are willing to continue under the contract may be allowed to do so. 23. Upon this, learned counsel for the petitioners has submitted that such observation may be recorded. 24. We, after considering the submissions advanced by the parties, are not passing any specific direction rather it is left open to the one or the other writ petitioners that if they are willing to continue under the contract, they may do so if the State wants and the order passed by this Court will not come in their way. 25. With the aforesaid observations and directions, the instant appeal stands dismissed. 26. Consequent upon the dismissal of the appeal, I.A. No. 6620 of 2020 stands disposed of.