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2024 DIGILAW 1676 (KER)

Divya K. S. , D/o. Soman K. Nair v. State Of Kerala, Represented By Its Hon’ble Chief Secretary, Govt. Of Kerala

2024-12-19

N.NAGARESH

body2024
JUDGMENT : (N. Nagaresh, J.) The petitioners are M.Sc. Nursing Degree Course students under the academic batches 2022-2024 and 20232025. They are currently pursuing their Post Graduate Degree Course. They have approached this Court seeking to quash Ext.P1 Notification issued by respondents 1 and 2 and to direct the 2nd respondent to allow the petitioners’ request to make the compulsory bonded service optional. The petitioners also seek to direct the 1st respondent to systematically raise the stipend for the compulsory service in a decent manner in comparison to the salaries paid to the Assistant Professors with the same qualification as of the petitioners. 2. The petitioners state that M.Sc. Nursing Course is a Two Year Degree Course having examinations on yearly basis for two academic years. The 7th respondent-University has the authority to lay syllabus in the matter of academics, training period and award of Certificates. The 9th respondent-Indian Nursing Council oversees the standards of education, registration and working environment of nurses in the country. 3. Government of Kerala published Ext.P1 Government Order dated 11.07.2024. In Ext.P1, it has been stated that Compulsory Service will be optional to the students admitted for M.Sc. Nursing Course in Government Colleges of Nursing. If Government desires to implement Compulsory Service, every student is bound to do the same. The petitioners are challenging the above provision. 4. The petitioners state that few of the students from the Government Nursing Colleges of Kannur and Kottayam addressing their difficulties relating to this Bonded Service submitted Ext.P5 representation to the 3rd respondent. The petitioners state that they were made to sign a bond attached as Annexure-II along with respective Prospectus of the years 2023 and 2024. The bond executed was relating to the completion of the course without violating Rules and Regulations and was not related to any complusory bonded service. The petitioners put up the issue to their official association also, as can be seen from Ext.P8. 5. The petitioners, who graduated four year B.Sc. Nursing Degree Course and had been working in different hospitals, were drawing salary at the range from Rs.30,000/-to Rs.50,000/-. They are mostly middle aged women and men, married, with kids and living separated from their family, staying in College Hostels. The M.Sc. Nursing Degree academics require sleepless hours, four hours of classes and eight hours of hospital service, six days per week, without vacation or leave. 6. They are mostly middle aged women and men, married, with kids and living separated from their family, staying in College Hostels. The M.Sc. Nursing Degree academics require sleepless hours, four hours of classes and eight hours of hospital service, six days per week, without vacation or leave. 6. The petitioners joined the course with an intention to accelerate their career prospectives and to improve their family standard of living by joining high paying jobs in India or in Hospitals abroad. Ext.P1 imposing Bonded Service is highly arbitrary and illegal, contended the petitioners. The counsel for the petitioners pointed out that Ext.P1 Government Order was issued on 11.07.2024. The petitioners had joined the Course earlier to that. Therefore, Ext.P1 cannot be made applicable to the petitioners. 7. The enforcement of the Bonded System is without any prior notice and without even providing any information before hand to the petitioners. Though the Prospectus gave power to the Government to implement bonded service system, the Prospectus did not provide as to the length of the bonded service or as to the honorarium or the allowances to be paid during the bonded service. In fact, the petitioners have not executed any bond. As long as the petitioners have not executed bond, they cannot be forced merely on the basis of a condition in the Prospectus. Ext.P1 is therefore highly arbitrary and is liable to be quashed, contended the petitioners. 8. The 2nd respondent filed a counter affidavit. The 2nd respondent submitted that it was clearly stipulated in the Prospectus that if the Government desires to implement Compulsory Service, every student is bound to do the same. The Government has decided to make applicable their existing optional teaching internship as compulsory to all the students, who have got admission from 2022-2023 academic year onwards. The petitioners cannot be heard to contend that they were not aware of compulsory teaching internship. 9. The 2nd respondent further submitted that the Bonded service is proposed with an intention to maintain the quality of Nursing Education in the State of Kerala and to maintain the Teacher-Student ratio of 1:10 as envisaged in Indian Nursing Council Regulations. M.Sc. (N) graduates are being engaged as Bonded Lecturers for several years. The teaching internship was only optional, but not compulsory in previous years. The Government have started six new Nursing Colleges in the State during 2023-2024 academic year. M.Sc. (N) graduates are being engaged as Bonded Lecturers for several years. The teaching internship was only optional, but not compulsory in previous years. The Government have started six new Nursing Colleges in the State during 2023-2024 academic year. There was need for more Bonded Lecturers to maintain the Teacher-Student ratio of 1:10. Therefore, the Government considered it necessary to implement compulsory teaching internship. 10. The 2nd respondent further submitted that those, who are being appointed as Bonded Lecturers, will be getting a monthly stipend of Rs.25,000/-. The stipend was increased by 21.9%. The 2nd respondent pointed out that the Medical Nursing Professionals from Kerala have made their mark in the Health Care Sector all over the world. The requirement of qualified Nurses is increases. It is intended to start Nursing Colleges in association with Medical Colleges at Idukki and Wayanad, Taluk Hospitals and General Hospitals in the State. The Bonded Lectureship system is introduced in order to maintain Teacher-Student ratio. 11. The 9th respondent-Indian Nursing Council also filed a counter affidavit. The 9th respondent submitted that insofar as the Bond System mentioned in guidelines and minimum requirements to establish M.Sc (N) programme is concerned, the same relates to the practice of some Nursing Institutions to forcefully retain the Original Certificates of students in order to force the persons to work as Nurses in Hospitals of the choice of the management of Nursing Institutions. Forceful retention of Original Certificates is an unethical practice and need to be stopped. The paragraph relating to ‘Bond System’ issued by the Indian Nursing Council has no relation with the impugned Notification of the Government of Kerala challenged by the petitioners. 12. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 to 6 and 11 to 16 and the respective Standing Counsel takes notice for respondents 7 to 9. 13. The grievance of the petitioners is relating to Paragraph 4 of Ext.P1 Government Order dated 11.07.2024. Due to Ext.P1 Order, the Post Graduate M.Sc. Nursing students have to work in the post of Tutor for a period of one year compulsorily for an internship stipend of Rs.25,000/-. The petitioners would submit that at the time of their joining M.Sc. Nursing Course, there was no such system of Bonded Teaching. Due to Ext.P1 Order, the Post Graduate M.Sc. Nursing students have to work in the post of Tutor for a period of one year compulsorily for an internship stipend of Rs.25,000/-. The petitioners would submit that at the time of their joining M.Sc. Nursing Course, there was no such system of Bonded Teaching. Ext.P1 is therefore highly illegal and arbitrary and offends the fundamental rights guaranteed to the petitioners under the Constitution of India. 14. It is however to be noted that Clause 16.2 (f) of Ext.P2 Prospectus for admission to Post Graduate Degree in Nursing issued in the year 2022, in response to which the petitioners have taken admission, stated that Compulsory Service will be optional to the students admitted for M.Sc. Nursing Course in Government College of Nursing and if Government desires to implement Compulsory Service, every student is bound to do the same. 15. In view of Clause 16.2(f), it is clear that while joining the Course, the petitioners were aware of the fact that the Government can introduce Compulsory Service system at any time. The Government has issued the Compulsory Service system thereafter as per Ext.P1. 16. The question whether such Compulsory Bonded Teaching System is legally sustainable was considered by this Court in W.P.(C) No.31101 of 2016. The said writ petition related to Compulsory Service imposed on Medical PG students. This Court held that State Government is spending money from its Exchequer in order to ensure successful completion of the Post Graduate Course by the petitioners. One cannot become unmindful of the stipulations of the authorities in order to continue the recognition of various disciplines in the Medical Institutions situated within the State, the services of the petitioners are very essential and pivotal to satisfy the requirement of Medical Council of India. Since the petitioners were aware of their liability, they are bound to discharge and fulfill the parameters and stipulations undertaken as per the bonded obligations with the State Government. As per undergoing the Course, the petitioners are not entitled to turn around and contend that they do not abide by any bond conditions. 17. The issue was again considered by a Division Bench of this Court in Aiysha Beegum (Dr.) and others v. State of Kerala and others [ 2018 (2) KLT 471 ]. The Division Bench held that doctrine of public policy is highly subjective, shifting and even changing. 17. The issue was again considered by a Division Bench of this Court in Aiysha Beegum (Dr.) and others v. State of Kerala and others [ 2018 (2) KLT 471 ]. The Division Bench held that doctrine of public policy is highly subjective, shifting and even changing. Statutorily examined, the compulsion of the students fulfilling the bond obligation does not seem to fall foul of any public policy. The Government permitted the College, University or the State Government to impose its own conditions for admission. The students, consciously, consented to the conditions, executed the bonds and never challenged them, until they completed their Course. 18. The Division Bench held that students have still options. They may serve the State and be paid or sever their relation and leave it. It comes at a price of paying liquidated damages. If the students leave for greener pastures, they must be prepared to pay, to compensate. The medical profession is not all about money, it has still an element of service. The Division Bench considered the issue of the State retaining certificates and documents on the failure to discharge bonded obligation. The Division Bench held that after their leaving the place, it is well nigh impossible for the State or the Colleges to enforce recovery. So, as is permissible under law and as agreed in Clause 2.2 of the State Prospectus, it can enforce its contractual right, by retaining the documents. 19. The Hon’ble Apex Court considered the legality of executive instructions imposing conditions of Service Bond at the time of admission for Post Graduate courses and Super Specialty Courses in Medical Science in Association of Medical Super Speciality Aspirants and Residents and others v. Union of India and others [ (2019) 8 SCC 607 ]. 20. The Hon’ble Apex Court held that legislations can be made by the State Legislatures relating to medical education. Even in the absence of any legislation, the State Government has the competence to issue executive orders under Article 162 of the Constitution of India on matters over which the State Legislature has the power to legislate. The Notifications issued by the State Government imposing a condition of execution of Compulsory Bond at the time of admission to Post Graduate courses and Super Speciality Courses cannot be said to be vitiated due to lack of authority or competence. 21. The Notifications issued by the State Government imposing a condition of execution of Compulsory Bond at the time of admission to Post Graduate courses and Super Speciality Courses cannot be said to be vitiated due to lack of authority or competence. 21. The decision taken by the State Government to impose a condition of Compulsory Bond for admission to M.Sc. Nursing Course is on the basis of relevant materials. The State found that in order to maintain the medical education / nursing sector, more Government Nursing Colleges have to be started. The Nursing Colleges had to maintain 1:10 Teacher-Student ratio. It is to satisfy the 1:10 ratio that the Post Graduate students like the petitioners are required to serve the Nursing Colleges. It is a policy decision taken by the State Government to utilise the service of Post Graduate Nurses, who were beneficiaries of Government assistance to complete their education. The said system therefore cannot be termed as arbitrary. 22. The conditions imposed for admission to Nursing Course will not directly violate the right of an individual to carry on his / her profession. The right to carry on profession would start on the completion of the course. The condition as to Bonded Service has a connection with the professional activity of Nurses on completion of the Course. The petitioners have accepted admission based on the Prospectus with open eyes without any protest. In such circumstances, taking into consideration the law laid down by this Court, no interference can be made in Ext.P1. 23. The petitioners have a further case that the stipend paid for the Bonded Service period is too low. The petitioners have been working earlier as Nurses, drawing salary upto Rs.50,000/-. They pointed out that they are being inducted to Bonded Service in order to compensate the scarcity in the post of Tutors. When the petitioners are made to discharge the duties of Tutors, the State cannot extract work from the petitioners for an amount of Rs.25,000/-per month. There should be substantial increase in the stipend amount, contend the petitioners. 24. I am of the view that this is a matter, which has to be looked into by the State and a decision has to be taken, taking into consideration the financial capacity of the State also. The petitioners will be free to pursue this demand with the 1st respondent, in accordance with law. 24. I am of the view that this is a matter, which has to be looked into by the State and a decision has to be taken, taking into consideration the financial capacity of the State also. The petitioners will be free to pursue this demand with the 1st respondent, in accordance with law. With the said observation, the writ petition is disposed of.