Madras High Court
T.K.Saravanan vs The State Of Tamil Nadu on 5 September, 2019
Equivalent citations: AIRONLINE 2019 MAD 671, (2019) 8 MAD LJ 1
Bench: S.Manikumar, Subramonium Prasad
WP.No.14112 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
WP.No.14112 of 2019
and
WMP No.14165 of 2019
T.K.Saravanan ... Petitioner
vs.
1. The State of Tamil Nadu,
Rep. by its Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.
2. The Director of Medical Education,
162, Periyar EVR High Road,
Kilpauk, Chennai – 600 010. ... Respondents
WRIT Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a writ of declaration, declaring that clause 38(d) & (h) of
the prospectus for admission to Post Graduate Degree / Diploma Courses for
2019-2020 session which requires furnishing of “Two sureties from
permanent government employee in the same or higher rank than the
candidate” for Admission to Post Graduate Degree / Diploma Courses in
Tamil Nadu Government Medical Colleges and Government Seats in Self-
Financing Medical Colleges affiliated to the Tamil Nadu Dr.MGR Medical
University & Rajah Muthiah Medical College affiliated to Annamalai
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WP.No.14112 of 2019
University is arbitrary, unreasonable, unfair, unjust and violative of Article
14, 19(1)(g) and 21 of the constitution and hence null and void and
consequently direct the Respondents to not impose any such condition.
For Petitioner : Mr.S.Ayyathurai
For Respondents : Mr.Vijay Narayan
Advocate General
Assisted by Mr.V.Kadhirvelu
Spl. Government Pleader
ORDER
(Order of the Court was delivered by SUBRAMONIUM PRASAD, J) This public interest litigation challenges clause 38 (d) and (h) of the prospectus for admission to Post Graduate Degree / Diploma Courses in Tamil Nadu Government Medical Colleges and Government Seats in Self-
Financing Medical Colleges affiliated to the Tamil Nadu Dr.MGR Medical University & Rajah Muthiah Medical College affiliated to Annamalai University for 2019-2020.
2. Clause 38 (d) and (h) of the prospectus, which is under challenge reads as under:
"(d) All Service Candidates of Tamil Nadu having more than five years of service after completing the PG Degree / Diploma Courses shall execute a bond for a sum of Rs.20,00,000/- (Rupees Twenty lakh only) on admission to Post Graduate Diploma courses 2019-2020 session and Rs.40,00,000/- (Rupees Forty Lakh only) on admission to Post Graduate Degree courses 2019-2020 session as security amount with the undertaking that they will serve the http://www.judis.nic.in 2/36 WP.No.14112 of 2019 Government of Tamil Nadu till Superannuation with three sureties.
Two sureties should be from permanent Government employee in the same or higher rank than the candidate. One surety should be from the spouse/ parent of the candidate. PAN numbers of the sureties should be furnished. The prescribed form of bond is enclosed in Annexure IV. The bond will become infructuous if the service candidates serve the Government of Tamil Nadu after the completion of the Course until superannuation.
(h) Non-Service candidates including candidates selected through 50% All India Quota shall execute a bond with three sureties for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) on admission to Post Graduate Diploma courses 2019-2020 session and Rs.40,00,000/- (Rupees Forty Lakhs only) on admission to Post Graduate Degree courses 2019-2020 session with an undertaking that they shall serve the Government of Tamil Nadu for a period of not less than two years, if the Government requires their services. During the above period, they will be paid salary on par with the fresh recruits of the Tamil Nadu Medical Services. The Government of Tamil Nadu will reckon their services within a period of 2 years from the date of completion of their Postgraduate Degree/ Diploma Courses. Two sureties should be from permanent Government employee in the same or higher rank than the candidate. One surety should be from spouse / parent of the candidate. PAN numbers of the sureties should be furnished. The prescribed form of bond is enclosed in Annexure IV. The bond will become infructuous if he/she serves under the Government of Tamil Nadu for a minimum period of 2 years.
Non-service candidates including candidates selected through 50% All India Quota, if they discontinue course they have to pay the total amount of penalty (Discontinuation Fee as per Clause 24(c) and the stipend received).
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3. The petitioner in the writ petition states that there could be no objection for execution of bond by a candidate as such, but the condition that the candidate should execute a bond with two sureties from permanent Government employee in the same or higher rank than the candidate is unreasonable, irrational and unfair.
4. The petitioner states that students who are economically disadvantaged or otherwise have no easy access to Government officials and are therefore, not in a position to get such sureties, cannot be deprived of a seat in Government college, because of their inability to get sureties.
5. The petitioner has also stated that some government officials are taking advantage of this unreasonable condition and demanding margin money for signing a surety. The petitioner states that poor students would not be in a position to give sureties from government servants. The petitioner would therefore contend that insisting on sureties from government servants for such a big amount and the failure to provide such surety, disentitling the students from continuing their education is arbitrary and liable to be struck down.
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6. On notice, the Government have filed its counter affidavit. The government has contended that government with its systematic investment has created 24 Medical Colleges. It is stated that for providing continuous medical service to the public at large, it requires further qualified manpower in the field of medicine and therefore, the students who acquire their degree must spend two years in the service of the State, which has made substantial investments on them.
7. Mr.Vijay Narayan, learned Advocate General states that insisting on doctors to serve the government after finishing their education cannot be said to be arbitrary. The learned Advocate General would contend that only to ensure that these doctors work for the Government for a period of two years, after finishing the degree, Government is insisting for two bonds from government servants. It is stated in the counter that the candidates, particularly the non service candidates do not come forward to work with the Government after completion of their course. It is also stated that the experience of the government has been that even after giving a bond, the students chose to defy the bond and take up jobs elsewhere. It is therefore contended that only to ensure strict compliance of the bond, government is insisting that the students must provide three sureties, out of which, two sureties should be from government servants.
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8. Heard the learned counsel for the petitioner and the learned Advocate General for the State of Tamil Nadu.
9. Clause 38 of the prospects deals with Stipend and Security Amount. The said clause, is being reproduced.
38 (a) All Non Service candidates selected will be paid stipend as per the Government Orders issued by Government from time to time for Government Medical Colleges and Rajah Muthiah Medical College (Annamalai University) as per the norms of the Institution concerned.
(b) Service Candidates will be paid salary as per the Government Orders issued by Government from time to time, if the candidates selected for Post Graduate Degree / Diploma Courses in the Government Medical Colleges.
(c) The Government of Tamil Nadu is offering Post Graduate Medical Education through its 16 Medical Colleges / Hospitals and The Tamil Nadu Dr.M.G.R Medical University / Specialized institutes. The Government spends a large amount of money to impart Medical Education including Post-Graduate Medical Education. It levies nominal fees and at the same time provides stipend to Private candidates and salary to Service candidates. It is natural that the Government desires to ensure that these seats are not wasted. Further, the Government looks forward to these Doctors who have undergone Post-Graduate training to serve the poor and the needy of this country at large and this State in particular. The public have the right to expect the Specialists to utilize the skills they acquired during their training for the benefit of the sick, the poor and the needy. To ensure that the services of trained Post Graduate Doctors are made available, an Undertaking http://www.judis.nic.in 6/36 WP.No.14112 of 2019 is obtained from them at the time of their admission. It is sincerely, believed that this will discourage an attitude of not paying attention to those poor people at whose expense they have been educated.
(d) All Service Candidates of Tamil Nadu having more than five years of service after completing the PG Degree / Diploma Courses shall execute a bond for a sum of Rs..20,00,000/- (Rupees Twenty lakh only) on admission to Post Graduate Diploma courses 2019-2020 session and Rs.40,00,000/- (Rupees Forty Lakh only) on admission to Post Graduate Degree courses 2019-2020 session as security amount with the undertaking that they will serve the Government of Tamil Nadu till Superannuation with three sureties. Two sureties should be from permanent Government employee in the same or higher rank than the candidate. One surety should be from the spouse/ parent of the candidate. PAN numbers of the sureties should be furnished. The prescribed form of bond is enclosed in Annexure IV. The bond will become infructuous if the service candidates serve the Government of Tamil Nadu after the completion of the Course until superannuation.
(e) All service candidates of Tamil Nadu who have less than 5 years of service after completing their PG Degree / Diploma courses, have to serve the Government for a period of 5 years from the date of Clearing the examination irrespective of the date of superannuation, if the Government requires their services. They have to furnish an undertaking to this effect at the time of joining the course.
(f) Non-service candidates including candidates selected through 50% All India Quota will be paid stipend till the age of 58 years only. For Service candidates, if their study period extends after superannuation (i.e. after 58 years) they will be given stipend on par with the non-service candidates.
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(g) Non-service candidates including candidates selected through 50% All India Quota who complete the following scarce specialities will have to work for a period of 5 years after completing the course, if the Government requires their services. They will be given salary on par with the salary of new recruits in the Tamil Nadu Medical Service. They should also furnish an undertaking to this effect at the time of joining the course.
PG DEGREE / DIPLOMA COURSES
Non-Clinical Clinical
1) MD Anatomy 1) MD Anaesthesia
2) MD Bio-Chemistry 2) MD Psychiatric Medicine
3) MD Community Medicine 3) MD Radio Diagnosis
4) MD Forensic Medicine 4) MD Radiotherapy
5) MD Microbiology 5) MD TB & Chest Diseases
6) MD Pathology
7) MD Pharmacology
8) MD Physiology
(h) Non-Service candidates including candidates selected through 50% All India Quota shall execute a bond with three sureties for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) on admission to Post Graduate Diploma courses 2019-2020 session and Rs.40,00,000/- (Rupees Forty Lakhs only) on admission to Post Graduate Degree courses 2019-2020 session with an undertaking that they shall serve the Government of Tamil Nadu for a period of not less than two years, if the Government requires their services. During the above period, they will be paid salary on par with the fresh recruits of the Tamil Nadu Medical Services. The Government of Tamil Nadu will reckon their services within a period of 2 years from the date of completion of their Postgraduate Degree/ Diploma Courses. Two sureties should be from permanent Government empolyee in the same or higher rank than the candidate. One surety should be from spouse / parent of the candidate. PAN http://www.judis.nic.in 8/36 WP.No.14112 of 2019 numbers of the sureties should be furnished. The prescribed form of bond is enclosed in Annexure IV. The bond will become infructuous if he/she serves under the Government of Tamil Nadu for a minimum period of 2 years.
Non-service candidates including candidates selected through 50% All India Quota, if they discontinue course they have to pay the total amount of penalty (Discontinuation Fee as per Clause 24(c) and the stipend received).
(i) If the Government requires the services of Non-service candidates including candidates selected through 50% All India Quota, who are unable to serve the Government for any reason during the above said period, his/her original certificates will be retained by the Government .
(j)The Security bonds are governed by Clause (c) under exemption under Article 57 of Schedule – I of the Indian Stamp Act of 1879 (Central Act II of 1879). Hence the Security Bonds executed need not be stamped.
10. Clause 38 (c) states that the Government of Tamil Nadu is offering Post Graduate Medical Education through its 16 Medical Colleges / Hospitals and The Tamil Nadu Dr.M.G.R Medical University / Specialized institutes. The Government spends a huge amount of money to impart Medical Education including Post-Graduate Medical Education. The clause also states that apart from the fact that the fees is very nominal, stipend is given to the private candidates and the in-service candidates get their http://www.judis.nic.in 9/36 WP.No.14112 of 2019 salary. Clause 38(c) categorically states that when the Government is spending such substantial amount of money in imparting education, the government desires that those Doctors who have undergone PG study should serve the poor and needy in the State and the public have a right to expect the Specialists to utilize the skills they acquired during their training for the benefit of the sick, the poor and the needy.
11. A reading of the above clause would show that the government believes that insisting on these doctors to serve the people, would discourage an attitude by the doctors, in not paying attention to the poor people at whose expenses they have been educated. A reading of the above clause would show that the there is a policy behind insisting a bond.
12. The learned Advocate General states that in the past five years, government has given posting orders to 338 non service candidates after completion of Post Graduate Degree / Diploma Course in Government Medical Colleges, to serve the poor patients in the State and out of 338 non service candidates, 110 candidates did not turn up to take up the postings in the government hospitals against the bond conditions. Eight candidates did not receive the posting order at all, and 20 candidates left the service before the completion of their tenure.
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13. The Advocate General therefore contends that since the bond conditions are being violated by the non service candidates, the government though fit that to ensure strict compliance of the bond conditions, two out of three sureties should be permanent government employees. The learned Advocate General would state that unless such conditions are not imposed, it could not be easy to enforce the bond given by the candidates.
14. In the State of Himachal Pradesh, Department of Medical Education and Research, Himachal Pradesh, issued a Prospectus-cum-
Application Form for admission to the Postgraduate Degree (MD/MS) Courses, in Indira Gandhi Medical College & Hospital, Shimla, and Dr. Rajindra Prasad Medical College and Hospital, Tanda, District Kangra, Himachal Pradesh. Clause 4 of the prospectus stated the Bond, Bank Guarantee and Stipend conditions. Clause 4.6 stated that the candidate selected for PG Degree / Diploma, should execute a bank guarantee for Rs.10 Lakhs ie. Rs.3 Lakhs in 1st and 2nd year respectively and Rs.4 lakhs in the 3rd year. The prospectus states that the Bank guarantee shall be submitted before the commencement of each academic year. This bond was to ensure that the students on completion of their MD/MS Degree would serve the State for five years after doing PG Degree course. Bank http://www.judis.nic.in 11/36 WP.No.14112 of 2019 Guarantee was given to ensure that the state Government can forfeit the bank guarantee in case the student after completion of education violates the bond conditions. This condition was challenged. The High Court of Himachal Pradesh, at Shimla, by judgment dated 20.09.2017 in Dr.Ramesh Kaundal and others Vs. State of H.P. & Others, reported in 2017 SCC Online HP 1449, upheld the bond condition. Paragraph No.23 of the said judgment reads as under.
"23. Condition of furnishing a bond as also Bank Guarantee, in our considered view, cannot be said to be unreasonable, irrational, illogical and thus illegal. Simply because in the past such condition was not imposed, that fact itself cannot be a reason good enough not to review the Policy. In fact, it is only on the basis of previous experience that the Policy came to be altered and the Prospectus amended. Under the Constitution of India, State is to provide good health to all residents, in all areas, be it urban or rural. It is with this object, so to say to check the brain-drain, the condition stands imposed. State does require more and more specialists to be posted in remote/rural areas. Under these circumstances, the condition cannot be said to be violative of Articles 14 & 21 of the Constitution of India. It also cannot be said that the condition is violative of Part-III of the Constitution, as it does not restrict admission only to such of those persons, who are economically affluent. Not only the State is incurring expenditures in imparting education, but is also making payment to them in one form or the other. That apart, the Bank Guarantee is required to be furnished in phases and not in one go. Rs. 3,00,000/- per annum is not a huge amount, which a specialist cannot afford to arrange for and that too for the purpose of Bank Guarantee. Yes, Bank http://www.judis.nic.in 12/36 WP.No.14112 of 2019 Guarantee is furnished against some tangible security, but then a sum of Rs. 3,00,000/- is also not such that no doctor can afford. In our considered view, it does not cast any unnecessary burden upon the students belonging to economically backward families. In any case, none has approached the authorities, expressing such concern. Nexus with the object sought to be achieved is very much evident and explained. There is co-relation between the imposition of condition and admission to a degree course. For after all, State is incurring huge expenditure and as already observed the endeavour is to stop brain-drain and enable the specialists to serve the residents of the State to provide benefits to the residents of the State.
15. Similarly, a Hon'ble Division Bench of High Court of Kerala at Ernakulam, in Dr.Ayisha Beegam and others Vs.State of Kerala, reported in 2018 SCC online Ker 1287, while considering the correctness of the State Government insisting on a bond, for ensuring compulsory medical service, has observed as under.
(2) Conditions: …
(d)(ii) If candidates other than service quota violate the terms mentioned in Clause XIII(1)(c) above, it will be construed as Professional Misconduct and the fact reported to the T.C. Medical Council for suitable action including cancellation of Registration by the Council. A sum of Rs. 20,00,000/- (in addition to the stipend/salary drawn during the period of the course and the amount spent by the Government for their studies with interest as fixed by Government) will be levied as liquidated damages from those who fail to do the Government service as stipulated.
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29. Indeed, Clause XIII of the Ext.P2 Prospectus issued by the Government of Kerala for “Admission to Medical Post-Graduate Degree/Diploma Courses-2013.” mandates the students to execute a compulsory-service Bond or to pay liquidated damages. In other words, all the non-service quota candidates admitted to Medical Postgraduate Courses shall serve the Government in Health Services or Medical Education Services as decided by the Government of Kerala for a period not less than one year after their completing the course. Therefore, neither Anand S. Biji Vs. State of Kerala (2017 (2) KLT 691) nor Harsh Pratap Sisodia Vs. Union of India (1999(2) SCC
575) saves the students, for those judgments turn on the conditions then imposed in the prospectus."
16. Similarly, a challenge was raised in a writ petition in the Hon'ble Supreme Court of India, regarding compulsory bonds to be executed for admission to super specialty courses. An Association of Medical Super Speciality Aspirants and Residents filed WP (Civil) No.376 of 2018 against Union of India & Others, seeking a writ of mandamus, for quashing the compulsory bond conditions, as imposed in super speciality courses by the States of Andhra Pradesh, Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Tamil Nadu, Telangana and West Bengal, respectively.
17. The Hon'ble Supreme Court by a judgment dated 19.08.2019, observed as hereunder.
http://www.judis.nic.in 14/36 WP.No.14112 of 2019 I. Jurisdiction of the State Government:
17. Entry 66 of List I of the 7th Schedule to the Constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7th Schedule deals with education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds. Therefore, the States are free to legislate on the subject matter of medical bonds.
Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature. Even in the absence of any legislation, the State Government has the competence to issue executive orders under Article 162 of the Constitution on matters over which the State legislature has the power to legislate. The Notifications issued by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to postgraduate courses and super Speciality courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected.
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Article 14 :
A. Arbitrariness
18. The Appellants are aggrieved by the decision of the State Governments imposing conditions for their admission in the post-graduate courses and super Speciality courses. According to them, the State Governments have understood the decision of this Court in Harsh Pratap Sisodia (1999 (2) SCC 575) to be a restraint on the exercise of their power in matters relating to eligibility criteria for admission to medical course. Suddenly, the introduction of the compulsory bonds after 15 years of the judgment in Harsh Pratap Sisodia (supra) is the result of decision taken by the State Governments which is dubbed by the Appellants as arbitrary. This Court in Harsh Pratap Sisodia (supra) was concerned with the additional eligibility criteria being introduced by the State Governments for the 15% All India Quota students. The decision taken by the State Governments to impose a condition of compulsory bond for admission to post-graduate courses and super Speciality is on the basis of relevant material. Huge infrastructure has to be developed and maintained for running medical colleges with post-graduate and super Speciality courses. The amount of fees charged from the students is meagre in comparison to the private medical colleges. Reasonable stipend has to be paid to the doctors. Above all, the State Governments have taken into account the need to provide health care to the people and the scarcity of super specialists in their States. Consequently, a policy decision taken by the State Governments to utilize the services of doctors who were beneficiaries of Government assistance to complete their education cannot be termed arbitrary.
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19. Reasonableness is a ground that pervades through the submissions made by the counsel on both sides. In the State of West Bengal, the requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of Tamil Nadu, the bond condition was that a doctor has to serve for ten years in the State and in default of which, the doctor was to pay Rs.2 Crores. This was reduced to two years and Rs.50 Lakhs. The Armed Forces Medical College imposes a condition of five years compulsory service in the Army for post-graduate and super Speciality doctors who prosecuted their study in the college. They have an option of not serving for five years by recompensing the Government by paying Rs.25 Lakhs. The main contention of the counsel appearing for the Appellants is that the condition of a long period of service that is imposed is unreasonable. The basis for the submission is that they have already served the society by working in Government hospitals while undergoing their course. Further conditions imposed on them would impede the progress of their careers. Restrictions placed on their choice of place of work are also unreasonable according to them. An alternate submission made by the counsel appearing for the Appellants is that the imposition of the condition of compulsory bond should be reasonable and the exit clause should be relaxed. Notifications issued by the State Governments imposing a condition of compulsory service and a default clause are per se not unreasonable. However, we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be reasonable. The State Governments and the Armed Forces Medical College are directed to consider imposing http://www.judis.nic.in 17/36 WP.No.14112 of 2019 the condition of compulsory service period of two years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs.
20. According to the Appellants, the right to carry on their profession which is guaranteed by Article 19(1)(g) is violated by the compulsory bonds. They contend that the compulsory bonds place a restriction on their right to carry on their profession on completion of their course. It is also submitted that any restriction on their right to carry on their profession by the State Government can be made only by a “law” as per Article 19(6) of the Constitution. Consequently, the Notifications that were issued by the State Governments fall foul of Article 19(1)(g). The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate and super Speciality courses. Conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a case pertaining to admission to a college. There is no doubt, that the condition that is imposed has a connection with the professional activity of a doctor on completion of the course. However, the Appellants have, without any protest, accepted the admissions and executed the compulsory bonds. Execution of bonds is part of a composite package. We are in agreement with the judgment of the Calcutta High Court that the Appellants have not been able to succeed in their attempt of assailing the Notifications for being violative of Article 19(1)(g) of the Constitution. We uphold the said finding of the Division Bench.
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21. The Appellants contended before the Calcutta High Court that their liberty is curtailed by the compulsory bonds. The scope of liberty which has been enhanced by this Court includes personal autonomy to take decisions relating to their profession. It was contended that the condition requiring them to compulsorily work for a certain period of time with the Government corrodes their liberty, affecting their right to life. They relied upon judgments of this Court in Kharak Singh v. State of U.P.(AIR 1963 SC 1295) and K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1) while advancing this submission. Referring to a judgment of this Court in Sayyed Ratanbhai Sayeed ((2016) 4 SCC
631), the High Court held that private rights, when in conflict with public interest, have to take a back seat. The High Court also recalled what Marcus Tullius Cicero said about the good of the people being the chief law.
22. Article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right guaranteed under Article 21 of the Constitution Paschim Banga Ket Mazdoor Samity Vs. State of W.B. (1996) 4 SCC 37). Therefore, in a welfare State it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. (Vincent Panikurlangara Vs. Union of India (1987) 2 SCC 165.
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23. Article 47 of the Constitution reiterates the constitutional obligation imposed on the State to improve public health. The Directive Principle provides as follows:
“47. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
24. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India ((1981) 1 SCC 246) it was held that maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. It was further observed in the above judgment that attending to public health, therefore, is of high priority- perhaps the one at the top.
25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening Government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities to employ best of talents and tone up its administration to give effective contribution, which is also the duty of the Government (State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117).
26. Right to health is integral to the right to life.
http://www.judis.nic.in 20/36 WP.No.14112 of 2019 Government has a constitutional obligation to provide health facilities (State of Punjab & Ors. v. Mohinder Singh Chawla (1997) 2 SCC 83). The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and the restriction would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights (Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608).
27. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasizing, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III of the Constitution. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence (K.S. Puttaswamy (supra)).
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28. The State’s obligations are not satisfied solely by refraining from imposing limitations on the right to human dignity. The State must also take action to protect human dignity and to facilitate its realization. The constitutional right to dignity is intended to ensure human beings’ political and civil liberties as well as their social and economic freedoms (Aharon Barak, Human Dignity: the Constitutional Value and the Constitutional Right in Christopher McCrudden (ed.), Understanding Human Dignity, Proceedings of the British Academy, 192, pp. 361-80 at p. 367.)
29. Dr. A. K. Sikri. J. in K.S. Puttaswamy v. Union of India( (2019) 10 SCC 1 [AADHAAR 5JB]) observed that the realisation of intrinsic worth of every human being as a member of society is an indispensable condition, and has been recognised as an important human right. Truly speaking, this is directed towards the deprived, downtrodden and the have-nots. He further held that the humanistic concept of human dignity which is to be accorded to that particular segment of the society has to be kept in mind. Their human dignity is based on the socio-economic rights that are read into the fundamental rights. The importance of the communitarian approach along with the individualistic approach to human dignity was addressed by Dr. A.K. Sikri, J. in the above judgment. The learned Judge emphasised on the role of the State and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of the good life.
30. We accept the submission of Mr. Rakesh Dwivedi, learned Senior Counsel for the State of West Bengal that the positive obligation of the State to uphold the dignity of a larger section of the society is to protect the rights conferred on them http://www.judis.nic.in 22/36 WP.No.14112 of 2019 by Article 21 of the Constitution. The immediate need of the deprived sections of the society to have proper health care was the reason behind the policy decision of the Government. The objective of the policy is to ensure that specialist health care is extended to the have-nots also.
31. The next question that arises is whether there is a conflict between the rights of the community and the rights of the Appellants. As stated earlier, the right that is claimed by the Appellants is to make an individual choice to carry on their profession which might be hindered by the decision of the Government. On the other hand, the basic idea behind the Government’s decision is larger public interest. The judgment of this Court in Sayyed Ratanbhai Sayeed ((2016) 4 SCC 631) relied upon by the High Court is to the effect that private interest has to take a back seat when pitted against public interest. In Mr. X v. Hospital ‘Z’, ((1998) 8 SCC 296) Saghir Ahmad J speaking for this Court, held that:
"44….Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the right which would advance the public morality or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”.[emphasis supplied].
32. The Universal Declaration of Human Rights (UDHR) http://www.judis.nic.in 23/36 WP.No.14112 of 2019 recorded in the Preamble its recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of every person to the enjoyment of the highest attainable standard of physical and mental health. ICESCR mandates the States Parties to achieve full realization of the aforementioned right through the creation of conditions which would assure to all, medical service and medical attention in the event of sickness, inter alia.
33. The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected.
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35. The submission of Mr. Huzefa Ahmadi, learned Senior Counsel for the Appellants is that the conditions of the bond per se amount to ‘forced labour’ and thus are violative of Article 23 (1) of the Constitution. Mr. Dwivedi expostulated the said submission by referring to Article 23 (2) which confers power on http://www.judis.nic.in 24/36 WP.No.14112 of 2019 the State to impose compulsory service for public purpose. Reliance was placed upon the Constituent Assembly Debates by Mr. Dwivedi explaining the scope of compulsory employment for public purpose under Article 23 (2) of the Constitution of India. The Appellants who are required to work for a short period on a decent stipend cannot complain that they are made to perform ‘forced labour’, especially after the Appellants have taken an informed decision to avail the benefits of admission in government medical colleges and received subsidized education. By no means, the service rendered by the Appellants in Government hospitals would fall under the expression of ‘forced labour’.
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38. Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act.
IV. Restraint on Profession
39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical http://www.judis.nic.in 25/36 WP.No.14112 of 2019 Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper’s Garage (Stourport) Ltd.,(1967 1 All ER
699.) that “if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade’, the High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872.
40. The upshot of the above discussion is that the Writ Petitions and the Appeals deserve to be dismissed. Consequently, all the Doctors who have executed compulsory bonds shall be bound by the conditions contained therein.
18. A perusal of the above mentioned judgment would show that the Supreme Court has upheld the act of the State Government in insisting on compulsory bond conditions to ensure that the students who passed PG courses serve the people of the State.
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19. The other issue which arises is about the insistence of sureties i.e., out of three sureties two sureties must be permanent government employee in the same or higher rank of the candidate. This condition is applicable to in-service candidates under sub clause (d) and non service candidates under sub clause (h) of Clause 38 of the prospectus.
20. We find some force in the submission of the learned counsel for the petitioner that a student from a poor family background might not be able to get government sureties or even if he gets government servant sureties then he would not be able to manage to get such huge amount of money to secure the interest of the Government Servants. We are of the opinion that insistence of such nature would mean that only students who know government servants, who would be willing to stand as a surety, alone would be in a position to secure admission in a Post Graduate study.
21. The learned Advocate General after consultation with the government stated that no selected candidate would be denied admission to Post Graduate Degree / Diploma course on the ground that the candidate has not produced two government sureties as required in the prospectus.
He stated that normally, a period of three months is given to the candidate to produce two government sureties. He has stated that in the event of non http://www.judis.nic.in 27/36 WP.No.14112 of 2019 production of two government sureties, the candidate will not be removed from the Roll and he would be permitted to complete the course subject to other rules in force.
22. The learned Advocate General further stated that such students who are not able to furnish two government sureties would not be paid stipend and the payment of stipend would commence only after the candidate submits two government sureties.
23. The learned Advocate General further submitted that on completion of the course and after obtaining Degree, the candidate can join the government service, as per the bond and the arrears of stipend will be paid to the candidate. In case the candidate does not join the government service the government would proceed to recover the balance amount ie.
the bond amount less the stipend amount which has not been paid, from the 3rd surety.
24. The learned Advocate General filed a Position Note duly signed by the Deputy Director of Medical Education (PG), Selection Committee, Directorate of Medical Education, Chennai. Relevant portion of the Position Note reads as under.
"With respect to the Sureties by two Government Officers, http://www.judis.nic.in 28/36 WP.No.14112 of 2019 it is submitted as follows:
i) No selected candidates will be denied admission to Post Graduate Degree / Diploma Course on the ground that the candidate has not furnished Government sureties as required in the Prospectus.
ii) Normally, a period of 3 months is given for the candidate to produce two Government sureties. It is submitted that in the event of non production of two Government sureties, the candidate will not be removed from the Roll and he will be permitted to complete the course subject to other rules in force.
iii) As per the prevailing practice, payment of stipend will commence only after he submits two sureties from the Government servants. In the event that the sureties are not submitted, no stipend will be paid during the course.
iv) After completion of the course and after obtaining Degree, if the candidate joins Government service, the arrears of stipend will be paid to him.
v) In the event that the candidate does not join Government service, the Government would be free to recover the balance between Bond amount and the stipend amount from the candidate or his surety in a manner known to law.
25. As noted in the earlier paragraphs of this judgment, the Hon'ble Supreme Court, Kerala High Court and Himachal Pradesh High Court, have upheld the policy of the government to insist on bonds executed by the candidates to ensure that such candidates after completing their PG degree / diploma serve in the state which has provided education.
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26. The Hon'ble Supreme Court by a judgment in Association of Medical Super Speciality Aspirants and Residents & Others Vs. Union of India and Others, has held that the State governments are competent to issue such directions. These directions are reasonable and are not violative of Articles 19 and 20 of the Constitution of India. They are in conformity with Article 47 of the Constitution of India, which lays down the constitutional obligation imposed on the State to improve public health and the Hon'ble Supreme Court has also held that there is a positive obligation on the State to uphold the dignity of a larger section of the society and to ensure that the immediate need of the deprived sections of the society to have proper health care, is fulfilled. Hon'ble Supreme Court has held that the reason behind the policy of the government cannot be said to be arbitrary and has to be upheld by Courts.
27. The learned Advocate General has also pointed out that number of students after acquiring the qualification violated the bond conditions and do not perform their obligation which they had agreed to, at the time of securing admission to the government colleges i.e to serve the people of the State which has provided them education. In fact, it is a national duty is cast on the doctors to provide services to the poor, needy, old and infirmed sections of the population, who are not in a position to afford costly medical health care.
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28. The learned counsel for the petitioner stated that poor students who are not able to bring in government sureties would be deprived of their stipend and such a policy would be opposed to Articles 14 and 21 of the Constitution of India. According to him, apart from gaining education, they are also working in the hospitals and provide service to the patients. We are not in agreement with the learned counsel for the petitioner. After the completion of the course, once they join the state government in compliance with the condition in the bond, they would be given the entire stipend back. However, we request the state government to consider as to whether this condition of non payment of stipend can be relaxed in favour of students, who come from a family background where the annual income is less than Rs.8 Lakhs. This would ensure that such student will be able to sustain his day to day needs.
29. The government have made it clear that no student has to discontinue the education because of his inability to provide government surety, but, the student would lose his stipend, which will be paid back to the student when he decides to perform his obligation of serving the state.
Such a policy cannot be said to be violative of Article 14 of the Constitution of India, and it is in line with the policy of the State, which has been upheld by the Hon'ble Supreme Court.
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30. In view of the undertaking given by the State government, that the students, who are not able to produce government sureties will not be deprived of the study, we uphold clause 38(d) & (h) of the prospectus.
31. During the course of hearing, we were concerned as to which posts would these doctors who pass out after completing their education, be appointed. We therefore asked the learned Advocate General to give us the vacancy position in the Directorate of Public Health and Preventive Medicine (DPH&PM), Directorate of Medical and Rural Health Services (DMRHS) and Directorate of Medical Education (DME). The Relevant portion in the position note reads as under.
"In respect of the vacancy position in the following Directorates, the facts are given below:
i) It is submitted that for the current year (2019-2010) there are following vacancies in all the three directorates.
S.No. Name of the Directorate Sanction In Position Vacancy 1 Directorate of Public 6339 5840 499 Health and Preventive Medicine (DPH&PM), 2 Directorate of Medical 4320 4028 292 and Rural Health Services (DMRHS) 3 Directorate of Medical 5420 5166 254 Education (DME)
ii) It is submitted that the plan of action for filling up the vacancies as follows:
http://www.judis.nic.in 32/36 WP.No.14112 of 2019 * Directorate the Public Health and Preventive Medicine (DPH & PM): 188 doctors out of 499 will be posted during September 2019 through Medical Recruitment Board list. Remaining vacancies 311 will be initiated to full post in October for new recruitment of doctors through Medical Recruitment Board.
* Directorate of Medical and Rural Health Services (DMRHS):
Vacancies will be filled by Non-service Post Graduate Candidates for full filling bond obligations.
* Directorate of Medical Education (DME)12: Posting of 242 Service Post Graduates completing by May 2019 in the vacancies of DME side is pending due to various writ petitions filed before Hon'ble High Court of Madras.
32. When we specifically asked, the learned Advocate General stated that the Doctors, who pass out from college after completing their post graduate course would be posted in the Directorate of Public Health and preventing Medicine or Directorate of Medical and Rural Health Services or Directorate of Medical Services. We were assured by the learned Advocate General, that steps would be taken to ensure that the regular posts will not be filled in, by these candidates.
33. The learned Advocate General further stated that after completing this two years of service, a qualifying examination is held for http://www.judis.nic.in 33/36 WP.No.14112 of 2019 these doctors to accommodate them in vacant posts. We are not sure as to whether this method would be in conformity with the mandate of Article 16(1) of the Constitution of India. Article 16(1) of the Constitution of India, reads as under.
16. Equality of opportunity in matters of public employment.: (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
34. If a qualifying examination is held only for the doctors who have done two years of service as stipulated in the bond, after completion of the PG Course, this would amount to discrimination with other students from other States, who would seek to join in the State of Tamilnadu. The State Government is therefore, directed to frame an appropriate policy to ensure that students passing out after completing the PG examinations are not asked to man regular posts in the three directorates and that the regular posts are filled up only through the normal recruitment process. Posts of Doctors should not be kept vacant, as their services are required by the people. Therefore, Government is also directed to fill up the vacant posts in all the Directorates, as expeditiously as possible.
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35. The writ petition is disposed of accordingly. No Costs.
Consequently, the connected writ miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.) 05.09.2019 Index: Yes/No Internet: Yes Speaking/Non speaking ars To
1. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai – 600 009.
2. The Director of Medical Education, 162, Periyar EVR High Road, Kilpauk, Chennai – 600 010.
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AND SUBRAMONIUM PRASAD, J.
ars Pre-delivery order in WP.No.14112 of 2019 and WMP No.14165 of 2019 05.09.2019 http://www.judis.nic.in 36/36