Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Dr. Rahul Bansal Ors on 18 June, 2018
Author: Dipankar Datta
Bench: Shampa Sarkar, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Shampa Sarkar
A.S.T.A. 10 of 2018
in
M.A.T. 507 of 2018
The State of West Bengal & ors.
v.
Dr. Rahul Bansal ors.
For the appellants : Mr. T. K. Mukherjee,
Mr. Pranab Halder.
For the respondent no.1 : Mr. Kallol Bose,
Mr. Arik Banerjee,
Mr. Rajib Mullick,
Ms. Saheli Sen,
Mr. Rakesh Sankar.
For the respondent no.3 : Mr. D.N. Maiti,
Mr. Supratic Roy.
Hearing concluded on : June 13, 2018
Judgment on : June 18, 2018
DIPANKAR DATTA, J. :
1. The judgment and order dated May 21, 2018, which is under challenge in this intra-court writ appeal, disposed of a writ petition with certain directions on the very first day it was moved during the last summer vacation of this Court. While hearing an application for stay filed in the appeal, we have heard the parties on the merits of the appeal itself with their consent. We propose to dispose of the appeal and the application together by this judgment and order.
2. The writ jurisdiction of this Court had been invoked by the writ petitioner, who is the first respondent in this appeal, because the second to the sixth respondents in the writ petition (the principal respondents for short, hereafter) were not willing to return to him his documents/certificates relating to his achievements while he was pursuing studies to emerge as a qualified doctor. These included his (i) Bachelor of Medicine and Bachelor of Surgery (MBBS) certificate, (ii) permanent registration certificate of MBBS and (iii) 3rd Professional Part- II final year marksheet in original (the documents/certificates for short, hereafter).
3. Shortly put, the essential facts giving rise to the writ petition are these.
The writ petitioner after acquiring a degree in MBBS from LLRM College, Meerut, Uttar Pradesh, participated in the All India Post-Graduate Entrance Examination in 2015 and was selected for admission in the MD (Psychiatry) course in the Institute of Post-Graduate Medical Education and Research Centre, Kolkata, West Bengal (the IPGMER for short, hereafter) under 50% All India quota. Having been admitted on May 28, 2015 in the IPGMER, the writ petitioner successfully completed the course and obtained diploma in MD (Psychiatry) in June, 2017. At or about the time of his admission in the IPGMER, the writ petitioner had to execute an indemnity bond. Although the bond itself is not on record, a specimen copy thereof was produced before us in course of hearing. We consider it proper to reproduce the same in its entirety hereinbelow:
Indemnity bond for the post graduate trainee (other than state govt of West Bengal sponsored in-service doctors) to serve the state govt of West Bengal Execution of bond by the candidate for P G Diploma course in .............at .........Medical College situated in.............for the session........................ I, Sri/Smt........................................................................... S/o D/o W/o .............................., resident of ............................................................................selected for P G Diploma course in..................at..........................Medical College situated in .................................... for the session .............................., do hereby state that after successful completion of the Post Graduate course in State Medical Teaching Institutions in West Bengal, shall abide by the terms and conditions of Govt Notification No. HF/O/MERT/912/ME/MISC-78-13 dated 31/07/2013 as the same stands modified by the Government Notification No. HF/O/MERT/923/ME/MISC-78/13 dated 10/06/2014 both of MERT branch of Department of Health and Family Welfare Government of West Bengal to work in multispecialty/Super speciality Hospitals/Secondary/Tertiary level Hospitals in West Bengal for a continuous period of Two years to serve the people failing which, I shall be liable to recompense the State Government of West Bengal a penal amount of Rs Ten Lakhs for each defaulting year while the State Government of West Bengal shall be at liberty to realise the said penal amount from me in accordance with law.
I do hereby also accept the fact that all original documents (Mark Sheets, certificates and documents as required by the Department of Health and Family Welfare, Government of West Bengal from time to time) will be retained by the department of the concerned Medical Teaching Institution in West Bengal for the purpose of ensuring successful completion of the bond period or repayment of penal amount, as may be applicable by the same Government Notification as stated above. I further understand that during the bond period, I will be designated as Senior Resident and it shall be obligatory on my part to observe or perform according to the rules and regulations for the Senior Resident in the State of West Bengal prevailing during the tenure of the afore stated bond period.
................................................................. Signature of the student in full with date In presence of witness ........................................................... Signature of witness with date Accepted on behalf of the Govt of West Bengal (bold in original)
4. Reading of the aforesaid extract would reveal reference to two Government notifications, dated July 31, 2013 and June 10, 2014. For facility of reference, the same too are quoted below:
"No: HF/O/MERT/912/ME/MISC-78-13 Dated: 31st day of July 2013 It has been decided that Doctors, after completing their Postgraduate and Post-Doctoral Education in State Medical Teaching Institutions in West Bengal, will work in Multi-Specialty/Super-Specialty Hospitals, Secondary & Tertiary level Hospitals in West Bengal for a period of one year to serve the rural people.
It is hereby accordingly ordered that, all candidates, other than Government Sponsored in-service candidates (who have a separate bond), who are admitted in postgraduate and postdoctoral courses, shall have to execute a bond, at the time of admission, to serve this State Government, as above, after successful completion of the course, failing which such candidates will be liable to recompense the State Government a penal amount of Rs. 10 (Ten) Lakhs.
It is also ordered that, this arrangement shall be effective and applicable for the aforesaid doctors admitted in Postdoctoral courses in State Medical Teaching Institutions from this academic session, i.e., 2013-14 and onwards, while it shall be effective and applicable for such doctors admitted in Postgraduate courses in State Medical Teaching Institutions from the succeeding academic session, i.e., 2014-15 and onwards (as postgraduate admission has already commenced and on the verge of completion in the academic session 2013-14)."
"No.HF/O/MERT/923/ME/MISC-78-13 Dated Kolkata the 10th June, 2014 It has been decided that Doctors, after completing their post Graduate and Post Doctoral education in State Medical Teaching Institutions in West Bengal will work in multispeciality/Superspeciality Hospitals, Secondary & Tertiary Level Hospitals in West Bengal for certain number of years to serve the rural people.
Now, in partial modification of Notification Number HF/O/MERT/923/ME/MISC-78-13 dated 31 day of July, 2013, it is st hereby ordered that, every postgraduate trainee (other that State Government sponsored in - service doctors) has to execute an indemnity bond to serve this State Government for a period of three years after successful completion of Post Doctoral/MD/MS Course and for a period of two years after successful completion of PG Diploma course, failing which such candidates will be liable to recompense this State Government a penal amount of Rupees Ten lakh for each defaulting year.
All original documents (Mark Sheets, Certificates and documents as required by the Department of Health & Family Welfare, Government of West Bengal from time to time will be retained by the Department for the purpose of ensuring successful completion of the bond period or payment of penal amount, as may be is applicable. During bond period, specialists will be designated as Senior Resident.
It is also ordered that, this arrangement shall be effective and applicable for the aforesaid Doctors admitted in Post Doctoral/MD/MS & PG Diploma course in State Medical teaching Institutions from the succeeding academic session i.e. 2015-16 and onwards."
5. The writ petitioner by a letter dated November 16, 2017 addressed to the Director of Health Services, West Bengal (the DHS for short, hereafter) prayed for return of his documents/certificates stating that he did not "want to continue" his "services". He also expressed that he was willing to "pay the required bond amount". Allegedly, there was no response from the side of the DHS. A reminder dated April 17, 2018 followed but the DHS did not respond. The writ petitioner again approached the DHS on April 23, 2018. Apart from citing personal reasons why he was not inclined to serve in West Bengal, the writ petitioner indicated that the documents/certificates had to be produced by him in course of "second round of Post Diploma Centralised Entrance Test 2018" counselling, which was likely to be held in the second week of May, 2018. The same prayer was repeated by a letter dated May 7, 2018 with intimation that May 29, 2018 had been fixed as the date for counselling. Incidentally, the writ petitioner in his pursuit of enhancing knowledge in the stream of Psychiatry had appeared at the Post Diploma Centralised Entrance Test (PDCET), conducted by the National Board of Examination, on December 21, 2017 and secured the 18th rank by scoring 548 marks out of 1200. For want of the documents/certificates, the writ petitioner had failed to participate in the first round of counselling held on April 12, 2018. Inability to produce the documents/certificates even in course of the second round of counselling, the writ petitioner quite obviously felt, would cost him a life time opportunity to pursue the Post Diploma course. Finding no alternative and under compulsion, he presented a writ petition dated May 17, 2018 seeking, inter alia, direction on the principal respondents and the Registrar of the West Bengal University of Health Sciences, the seventh respondent, to produce the documents/certificates in original and to issue attested copies of the documents/certificates together with a no-objection certificate from the seventh respondent, to enable him participate in the second round of counselling scheduled on May 29, 2018. We were informed in course of hearing that on May 18, 2018 (the last day before the summer vacation of this Court), the writ petitioner had obtained the leave of the learned Judge, having the regular determination to hear the writ petition, to move the vacation bench. Despite service, none had appeared before the learned Judge on behalf of the principal respondents to contest the writ petition when it was taken up for consideration on May 21, 2018. Having regard to the urgency involved in the matter, the learned Judge had requested Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader to enter appearance on their behalf. We appreciate that it was difficult for Mr. Mukherjee to appropriately argue the case on behalf of the principal respondents without proper instructions as well as preparation, and that he was disabled thereby to raise all points that were available to be raised. Be that as it may, upon hearing the parties, the learned Judge finally disposed of the writ petition forming an opinion that since the writ petitioner was willing to bear the penal consequences arising out of the bond, the principal respondents were equally bound to return the documents/certificates to him. Accordingly, the writ petitioner was granted liberty to deposit with the principal respondents a demand draft of Rs. 20,00,000/- by May 23, 2018, whereupon they were directed to return to him the documents/certificates and also issue 'no objection' certificate by May 25, 2018.
6. Three points have been argued by Mr. Mukherjee before us, ~ one on the merits and the rest two touching the jurisdiction of the learned Judge not only in regard to entertainment of the writ petition but to dispose it off finally without calling for an affidavit.
7. First, referring to a notification dated August 7, 2017 issued by the Joint Secretary to the Government of West Bengal, Department of Health and Family Welfare (the said department for short, hereafter), available at page 52 of the stay application and corresponding to page 40 of the writ petition, Mr. Mukherjee vehemently contended that the writ petitioner is an employee of the State Government and, therefore, his remedy, if at all, lay before the West Bengal Administrative Tribunal (hereafter the tribunal). The writ petition, he contended, was not at all maintainable before this Court and the same should have been dismissed outright.
8. Secondly, Mr. Mukherjee contended that since the writ petition was disposed of by the learned Judge on the first day it came up for 'Admission', the State did not have the opportunity to place the necessary and important facts which were so very vital for a proper decision on the writ petition. Disposal of the writ petition without even calling for an affidavit from the side of the principal respondents, according to him, is in breach of the rules framed by this Court relating to applications under Article 226 of the Constitution and, therefore, the judgment and order merits reversal also on this ground.
9. Finally, Mr. Mukherjee gave us an idea regarding the policy of the Government to extend medical care facilities to every nook and corner of the State. According to him, the Government is committed to provide free and quality medical treatment facility including hospital facility to the citizens at large and particularly to the rural poor. Compared to the general population, the health care facility is inadequate and the hapless rural poor who cannot afford treatment at private hospitals and nursing homes are entirely dependent on the Secondary and Tertiary level hospitals run by the State Government. It was, therefore, felt that unless the Government health care facilities are improved and made accessible for each of the members of the public who is ailing, the Government would be failing to meet its commitment to the public at large so far as medical facility is concerned. In the backdrop of such situation, the Government has constantly been making endeavours with limited resources to open up more hospitals covering the entire State and till date, 41 (forty one) super specialty hospitals have been established for the purpose. It was submitted that the Government does not have at its disposal adequate number of doctors and currently there are about 4000 (four thousand) existing vacancies of doctors/medical officers and, therefore, unless these hospitals are manned by specialist doctors, proper medical facility can hardly be extended to the patients. He next submitted that the Government, being committed to secure sustained development of medical services in rural areas, introduced the concept of execution of medical service bonds for a definite period as a quid pro quo for providing post graduate medical education to the students at subsidized rates and as a sequel thereto, the candidates are paid stipends during the period of academic course and remuneration during the subsistence of the contract/bond. It is his submission that if the judgment and order under challenge is allowed to remain, it would in effect derail the health policy with regard to providing medical services in rural areas and usher in a phase of anarchy and chaos as the supervening public equity demands that a welfare state should provide adequate medical assistance in rural areas. Additionally, it would open the floodgates and other doctors, similarly placed like the writ petitioner, who have the financial resources at their end would follow suit after completion of the relevant courses without abiding by the term in the bond to serve in this State for the period mentioned therein. Based on the above, it was submitted that the doctors who pursued post graduate courses at subsidized rates should not be let off without serving those who are ill and who could be benefited by the special knowledge in medicine and medical care facilities that the doctors have acquired while studying in the medical colleges of the State.
10. Mr. Mukherjee has been heard at length by us. We are afraid, his contentions have not impressed us and we express our inability to be ad idem with him.
11. The notification dated August 7, 2017, issued in compliance with the said department's notifications dated July 26, 2016 (No. HF/O/MA/1468/HPT/23T-35-16) and dated June 10, 2014 (extracted supra) and in the name of the Governor, sought to "deploy with immediate effect the 73 (seventy three) pass-out Non-Sponsored Post Graduate Students of the West Bengal University of Health Sciences (as per bond executed by them), mentioned at column No. B, having Diploma in Disciplines mentioned at column No. D, with the name of Institutions of PG attachment mentioned at column No. C, to act as Contractual Medical Officer (Specialist) for a period of two years, in respective Institutions mentioned at column No. E, to be utilized in concerned disciplines mentioned at column No. F of the annexed list against their names, at a consolidated remuneration of Rs 50,000/- (Rupess fifty thousand) only per month" (bold in original). There were directions in such notification for the candidates to report for duties to the concerned superintendent immediately and for such superintendents to deploy the candidates in duty immediately to the assigned duty.
12. The notification dated July 26, 2016, referred to in the aforesaid extract, reads as follows:
HF/O/MA/1468/HPT/23T-35-16 Dt. 26th July, 2016 Sub: Contractual Engagement of up to 230 (Two Hundred and Thirty) pass- out non Service Post-Doctoral/MD/MS/Post Graduate Diploma students from West Bengal University of Health Sciences, by deploying them as Specialists in the Multi/Super Speciality and Secondary Tier hospitals in West Bengal after publication of their results at a consolidated monthly remuneration of Rs. 50,000/- (Rupees Fifty thousand only) for a period as per bond executed by the incumbents during their entry in Post Graduate Course under WBUHS.
The undersigned is directed by order of the governor to say that the Governor has been pleased to engage contractually up to 230 (Two Hundred and Thirty) pass-out non-service Post-Doctoral/MD/MS/Post Graduate Diploma students from West Bengal University of Health Sciences, by deploying them Specialists in the Multi/Super Speciality and Secondary Tier hospitals in West Bengal after publication of their results at a consolidated monthly remuneration of Rs. 50,000/- (Rupess Fifty Thousand only) for a period as per bond executed by the incumbents during their entry in Post Graduate Course under WBUHS.
The charge is debitable under the existing head of account in respect of salaries of existing staff of same categories of the said institution. The order is issued with the concurrence of finance Deptt. Vide their U.O. Gr.P2/2016-2017/0051 dated 16-06-2016 and also with the approval of Cabinet No. 16 dated 18-07-2016.
All concerned are being informed."
13. There seems to be little doubt that employment, whether private or public, has its origin in a contract. Ordinarily, two persons having entered into a contract with one party to the contract willing to serve the other on terms and conditions as agreed upon by and between them, the person employing is called the employer while the employee is the other party to the contract who agrees to render work for the employer. Insofar as employment under the State is concerned, i.e. public employment, although it is initially contractual, but the terms and conditions of service being regulated by statutory provisions, the employee upon accepting the terms and conditions of the offer of appointment earns the status of a Government employee. In terms of rule 2(c) of the West Bengal Services (Duties, Rights and Obligations of Government Employees) Rules, 1980, a Government employee "means a person appointed to a service or post in connection with the affairs of the State".
14. Employment of a person for rendering services under the Union and the States is covered by Part XIV of the Constitution. While Article 309 relates to recruitment and conditions of service of persons serving the Union or a State, Article 310 relates to tenure of office of persons serving the Union or a State. The control that can be exercised by the Union or a State over any one of its employees is, however, subject to the safeguards in Article 311. For the purpose of conducting examinations for appointment to the service of the Union as well as the States, the Constitution in Article 320 has ordained that it shall be the Union Public Service Commission or the State Public Service Commissions, as the case may be, to conduct such examinations. These provisions of the Constitution have to be borne in mind while understanding the ambit and scope of section 15 of the 1985 Act.
15. For facility of reference, section 15 of the 1985 Act is quoted below:
"15. Jurisdiction, powers and authority of State Administrative Tribunals.--(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to--
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of Section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation [or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.
***"
16. There are two terms/expressions in sub-section (1) of section 15 of the 1985 Act, which need to be understood. The first is 'service matters' and the other 'civil post' under the State.
17. Section 3 (q) of the 1985 Act defines 'service matters' to mean:
"3. Definitions.--In this Act, unless the context otherwise requires,-- ***
(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects--
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;"
18. The definition of 'service matters' is wide enough to take within its fold any kind of dispute that could arise in relation to a person's conditions of service in connection with the affairs of the Union or of a State. However, 'civil post' has not been defined in the 1985 Act.
19. While considering the question whether a 'mauzadar' is a person holding a civil post under the State within Article 311 of the Constitution and answering it in the affirmative, the Supreme Court in its decision reported in AIR 1967 SC 884 (State of Assam v. Kanak Chandra Dutta) held that there is no formal definition of 'post' and 'civil post' and the sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. It was also held therein as follows:
"9. ***A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to of Article 311. In Article 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. See the marginal notes to Articles 309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.
10. In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds 'office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Article 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post."
20. Therefore, this decision lays down the law that, a civil post is distinguished in Article 310 from a post connected with the defence side of the administration and is an employment in civil capacity under the Union or a State; that, in view of Article 311, a civil post means not connected with defence, outside the regular civil services; and also that, there must be a post before an appointment could be made and every employment is not a post.
21. The decision in Kanak Chandra Dutta (supra) seems to be the first, where the meaning of the term 'civil post' was attempted to be traced by the Supreme Court. Let us now take a quick look at subsequent decisions of the Supreme Court, upon consideration of Kanak Chandra Dutta (supra).
22. A Constitution Bench of the Supreme Court in its decision reported in (1983) 2 SCC 33 (State of Gujarat v. Raman Lal Keshav Lal Soni) was called upon to consider whether the members of the Gujarat Panchayat Services are Government servants. While answering the question in the affirmative, the Supreme Court had the occasion to observe as follows:
"27. We have to first consider the question whether the members of the Gujarat Panchayat Service are government servants. Earlier we have already said enough to indicate our view that they are government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. ***"
23. What follows from the aforesaid extract is that whether a person is a servant of the State or not, is a question of fact which is to be decided in each case depending on the circumstances of that case.
24. In its decision reported in (2006) 2 SCC 482 (Union Public Service Commission v. Girish Jayanti Lal Vaghela), the question that arose for consideration before the Supreme Court was whether the respondent- employee was entitled to age relaxation as on the date advertisement was published inviting applications for regular selection on the post of Drugs Inspector. He had been working on short-term contract basis, which was terminable at the end of six months or till the date the candidate selected by the Union Public Service Commission joined duty on regular basis. After every six months, the contract was renewed with short breaks and it continued for five years; in the process, the respondent became age-barred. The Bombay High Court had reversed the decision of the Central Administrative Tribunal, Bombay and directed the Administrator of the relevant union territory to issue age-relaxation certificate in favour of the respondent-employee. While holding that the respondent-employee could not have been regarded as a Government servant as he was working on contract basis, the decisions in Kanak Chandra Dutta (supra) and Raman Lal Keshav Lal Soni (supra) were considered and it was ruled as follows:
"14. A private employer in India enjoys almost complete freedom to select and appoint anyone he likes and there is no statutory provision mandating advertisement of the post or selection being made strictly on merit, even where some kind of competitive examination is held. A private employer has absolute liberty to appoint a less meritorious person. Except those who are covered by the definition of 'workman' and are governed by the provisions of the Industrial Disputes Act or any such allied enactment, an employee working in a private establishment normally does not enjoy any statutory protection regarding his tenure of service.
15. Though in State of Assam v. Kanak Chandra Dutta and in the Constitution Bench decision in State of Gujarat v. Raman Lal Keshav Lal the decision of the House of Lords in Short v. J.W. Henderson [(1946) 174 LT 417] and other English cases were not referred to but it appears that this Court adopted almost the same test for ascertaining whether a person holds a civil post under the Union or a State. But in England these tests were adopted in order to find out whether there was a relationship of master and servant and particularly in the context of private employment. In our country there is a substantial difference between an employee working in a private establishment and a government servant on account of the aforesaid constitutional provisions. Therefore, the indicia laid down in State of Assam v. Kanak Chandra Dutta and State of Gujarat v. Raman Lal Keshav Lal cannot be the only tests for determining whether a person is holder of a civil post under the Union or the State. In the case of a regular government servant there is undoubtedly a relationship of master and servant but on account of constitutional provisions like Articles 16, 309 and 311 his position is quite different from a private employee.
***
19. It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule-making authority, namely, the Government.
***
21. It is neither pleaded nor is there any material to show that the appointment of Respondent 1 had been made after issuing public advertisement or the body authorised under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a government servant had not arrived. While working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was he entitled to any pension which are normal incidents of a government service. Similarly, he could neither be placed under suspension entitling him to a suspension allowance nor could he be transferred. Some of the minor penalties which can be inflicted on a government servant while he continues to be in government service could not be imposed upon him nor was he entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that Respondent 1 was a government servant.
***
24. For the reasons discussed above, we are clearly of the opinion that Respondent 1 cannot be said to be a government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age-limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside."
25. The aforesaid decision, therefore, is an authority for the proposition that where the Government appoints a person on contract dehors the statutory rules for recruitment and violating the guarantee of equality enshrined in Article 16 of the Constitution, such a contractual appointee does not become a Government servant.
26. The Supreme Court, yet again, in the decision reported in (2007) 11 SCC 681 (State of Karnataka v. Ameerbi), had the occasion to consider whether anganwadi workers hold civil posts and whether their application before the State Administrative Tribunal was maintainable under section 15 of the 1985 Act or not. Upon consideration of various decisions, which included Kanak Chandra Dutta (supra) but not Raman Lal Keshav Lal Soni (supra) and Girish Jayanti Lal Vaghela (supra), it was held that the respondents in the civil appeal were not the holders of any civil post and, therefore, the tribunal had no jurisdiction to entertain the application. The tests laid down in Kanak Chandra (supra) were not accepted on the following reason:
"20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme exists. We do not think that the said decision has any application in the instant case."
The decision reported in (1992) 4 SCC 432 (Union of India v. Deep Chand Pandey), wherein casual employees were found to come within the purview of section 14(1) of the 1985 Act was distinguished on the ground that the employees were seeking temporary status and they had claimed a right to continue in employment; and, in view of the nature of the claim, the Supreme Court had opined that the application under section 14 of the 1985 Act was maintainable. Insofar as the other cited cases are concerned, it was noticed that the same centres around application of a statute, all the posts were statutory ones, and terms and conditions of services of the holder of the posts were governed by statutes. Considering that anganwadi workers were appointed under a scheme which is not of a permanent nature, although the same might have continued for a long time, and that the recruitment process was carried out through a committee, the Court observed that the same would not render the incumbents as holders of civil posts. One of the questions raised before the Court was in regard to the right of an anganwadi worker to contest an election. It was held that they are "indisputably free to do so" and further that a "holder of a civil post may not be entitled thereto". Finally, it was held that the State in terms of a scheme may exercise control a section of persons working but thereby only, they do not become entitled to protection under Article 311 of the Constitution.
27. Bearing the above decisions in mind, we proceed to consider the point raised by Mr. Mukherjee that the writ petition was not maintainable and the writ petitioner ought to have moved the tribunal.
28. The notification dated July 26, 2016 in its subject clearly makes a distinction. The notification is applicable to "non-service post- Doctoral/MD/MS/Post Graduate Diploma students from the West Bengal University of Health Sciences". It refers to contractual engagement by deploying the students as specialists in the multi/super speciality hospitals and other hospitals in West Bengal after publication of their results at a consolidated monthly remuneration of Rs. 50,000/- for the period as per the bond executed by the incumbents during their entry in the courses under the West Bengal University of Health Sciences. As has been held in Raman Lal Keshav Lal Soni (supra), a single factor may not be considered as absolutely essential for determining whether one is the holder of a civil post and, therefore, merely because the charge for paying consolidated monthly remuneration to the students is debitable under the existing head of account in respect of salaries of existing staff of same categories of institutions, it is not decisive. The other factors mentioned in Raman Lal Keshav Lal Soni (supra), as found from the passage that we have extracted above, would be necessary to be examined but in the absence of the relevant data, it would be difficult for us to embark on such an exercise. Even in terms of the decision in Girish Jayanti Lal Vaghela, a person appointed by the Government on contract basis without following the rules does not become a Government servant.
29. However, even in the absence of the necessary data to examine the claim on the anvil of the decision in Raman Lal Keshav Lal Soni (supra), what is interesting to note is that the writ petitioner does not appear to have been appointed either in the services of the State or on a civil post. The writ petitioner, along with other doctors, was merely deployed to act as a contractual medical officer. The dictionary meaning of the word deploy, relevant for our purpose, is to use something or someone, especially in an effective way.
30. We have no doubt in our mind that the word 'deploy' has been used consciously instead of 'appoint' so as not to make available to the pass-out non-service Post-Doctoral/MS/MS/Post Graduate Diploma students from the West Bengal University of Health Sciences the protection that is normally available to a Government servant under Article 311 of the Constitution. Once the Government has consciously decided against appointment of such non-service students in the services of the State or on civil posts, for whatever reason it might have had in mind, it is not open to it at this stage, to overcome the rigours of the directions contained in the impugned judgment and order, to contend that the writ petitioner ought to have moved the tribunal.
31. Assuming that the writ petitioner was appointed and not merely deployed, his appointment is no more than a contractual one for a period of 2 (two) years on a monthly remuneration. There are no terms and conditions of service mentioned in the notification dated August 7, 2017. Applying the law laid down in Girish Jayanti Lal Vaghela (supra), the conclusion is inescapable that the writ petitioner is not a Government servant.
32. The objection of Mr. Mukherjee on the point of jurisdiction of this Court to entertain the writ petition is not at all sound; accordingly, it is overruled.
33. Turning to the second point, it is true that the writ petition was disposed of on the first day when practically Mr. Mukherjee was unarmed to raise effective defence on behalf of the principal respondents in the writ petition. Appearance of Mr. Mukherjee before the learned Judge was in deference to His Lordship's request and by no stretch of imagination can disposal of the writ petition by the impugned judgment and order be viewed as a disposal on the basis of a contested hearing. Even though the principal respondents may not have appeared before His Lordship despite service of notices and copies of the writ petitions, a question can legitimately arise as to whether the learned Judge should or could have disposed of the writ petition on the first day. Viewed in the perspective of existence of a normal state of affairs where no element of urgency is involved in the lis that emerges for decision of the writ court and mandatory directions are passed in the absence of the party to be affected thereby, interdiction with such an order on the basis of the principles laid down by the Supreme Court in its decision reported in (2010)15 SCC 770 (Bar Council of India v. Ram Chandra Prasad] and a coordinate Bench decision of this Court reported in 2018 (1) CHN (CAL) 222 (Satpalsa High School v. Krishna Ram Bhattacharya)] is a distinct possibility. We are, however, not minded to do so in this case considering the urgency that was involved in the matter, i.e. the writ petitioner was anxious to get back the documents/certificates so that the same could be placed in course of counselling that was scheduled on May 29, 2018, and also considering an undisputable omission on the part of Mr. Mukherjee to seek an adjournment before His Lordship so that he could come prepared on the next day, which was May 23, 2018 (as we have found from the schedule of working days during the summer vacation, prepared by the registry). Since the date of counselling was scheduled on May 29, 2018, hearing could have waited till May 23, 2018. From the judgment and order under challenge, we have not found that despite an adjournment having been prayed for, the learned Judge proceeded to dispose of the writ petition. We have checked up the memorandum of appeal and do not see any ground therein to the effect that despite a prayer for adjournment having been made, the same was declined. In that view of the matter, we do not feel impressed to exercise intra-court appellate jurisdiction powers, on facts in the circumstances of the present case, based on the second point raised by Mr. Mukherjee.
34. Finally, we come to the merits. No one can dispute that the needs and aspirations of the members of a modern welfare state are immense. To cater to the same, it is for the Government of the day to evolve and frame policies to promote and/or further the interest of the public at large in every sphere of life keeping in mind the obligations envisaged in Part IV of the Constitution of India. We have no doubt in our mind that execution of bonds requiring the concerned doctors to work in multi-speciality/super- speciality/secondary/tertiary level hospitals in West Bengal for a continuous period of two years, is intended to extend medical care benefits under the supervision of qualified doctors to the ailing near his doorstep. The reasonableness of this policy is not a question which we are required to decide in this writ appeal, although we find that the writ petitioner has questioned the policy of the Government to compel him execute the bond allegedly under coercion. It is indeed true that the Government with the expectation of a quid pro quo for providing post graduate medical education to doctors like the writ petitioner at subsidized rates imposed the condition so that the services of the doctors could be made available in the hospitals of the nature indicated in the bonds. The terms of the bond were known to the writ petitioner. If indeed he was not willing to execute the bond and it is the result of coercion, he should have contemporaneously raised an objection. There is no such objection on record. The stand of the writ petitioner relating to coercion, thus, does not stand judicial scrutiny. So far so good. However, it seems to us that the further term in the bond imposed by the Government providing for the consequence of failure to serve in such hospitals, has proved to be its undoing. While Mr. Mukherjee sought to persuade us to hold that the quid pro quo should be held to be complete, at the end of the writ petitioner, when he has completed service in a hospital in West Bengal for the period of 2 (two) years mentioned in the bond, the terms of the bond are such that the quid pro quo could also be complete at the end of the writ petitioner by refusing to work in the hospital to which he has been deployed upon agreeing to pay Rs. 10,00,000/- per year for each defaulting year. The Government having kept an escape route ready for the writ petitioner cannot now be heard to contend that while construing the term of the bond, the Court may not look at the penultimate paragraph of the bond which, in no uncertain terms, makes it clear that the original documents (mark sheets, certificates and documents as referred by the said department from time to time) would be returned by the said department for the purpose of ensuring successful completion of the bond period or repayment of penal amount, as may be applicable. On the face of the terms contained in the penultimate paragraph, the original documents have to be returned in either of two contingencies, i.e. (i) completion of the bond period successfully or (ii) on payment of the penal amount which may extend to Rs. 20,00,000/-. Once a doctor who has executed the bond deposits the penal amount as envisaged therein, the Government ought not to be allowed to introduce a new sort of restriction which the bond does not envisage i.e. the original documents can be returned only after successful completion of the bond period and not otherwise. If this were the intention of the Government, the contents of the bond should have been differently written. The submission that the floodgates would be opened if the impugned judgment and order were not reversed, in our opinion is one that is advanced in desperation. The parties to the contract must respect its terms or else anarchy would follow. Having regard to the figures given by Mr. Mukherjee that was spent on each doctor, the State is getting more than double the amount. In view thereof, a decision not to return the documents/certificates must be based on reasons and not whims. If dismissal of this writ appeal results in opening of the floodgates, it is for the appellants to ponder and find out ways and means as to how the interest of the ailing public can be served better by engaging the non-service pass-out doctors. We do not wish to give any advice and hence allow the matter to rest here, but hasten to record that we have absolutely no hesitation in our mind that there has been an attempt on the part of the appellants to persuade us hold against the writ petitioner on the basis of sentiments which, obviously, has no place in the exercise of writ jurisdiction by the high courts under Article 226 of the Constitution.
35. The point raised by Mr. Mukherjee on the merits of the dispute is, thus, also overruled.
36. The appeal is liable to be and is hereby dismissed. The application for stay consequently does not survive and is also dismissed. We, however, refrain from imposing costs.
37. In terms of the interim order passed by a coordinate Bench on June 8, 2018, the writ petitioner has credited Rs. 20,00,000/- in the account of the Government. He is, thus, entitled to return of the documents/certificates which were taken from him at the time of execution of the bond. Also, he is entitled to have a 'no objection' issued in his favour. The writ petitioner is granted liberty to approach the Dean, IPGMER, the fifth appellant, by the end of working hours of June 20, 2018. If an approach is made, the fifth appellant shall return the documents/certificates to him and also handover a 'no objection' certificate to him. Should there be a failure or omission on the part of the fifth appellant to comply with the terms of this order despite an approach being made, the writ petitioner shall be at liberty to bring such non-compliance to our notice on June 21, 2018 at the first sitting of the Court.
38. The fifth appellant shall act on the basis of a website copy of this judgment and order, duly authenticated by his advocate-on-record.
39. Before parting, we wish to record that the controversy that we were called upon to resolve in this writ appeal has bared once again the strange ways of functioning of the Government machinery. Unmeritorious appeals like this not only clog the docket but precious judicial hours are lost in hearing and disposal of the same, when the time taken therefor could have been put to better use by us for the overall benefit of the State and its people. We hope and trust that the State Government would be more careful in the future in deciding whether to unnecessarily prolong the life of a litigation by presenting such an appeal which is thoroughly unmeritorious.
40. Photostat certified copy of this judgment and order be furnished to the parties on urgent basis, if an application therefor is made.
(SHAMPA SARKAR, J.) (DIPANKAR DATTA, J.)