Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Dr. Naval Patel & Ors on 14 September, 2018
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
MAT 2076 of 2017
CAN 1529 of 2018
The State of West Bengal & Ors.
-Vs.-
Dr. Naval Patel & Ors.
With
MAT 380 of 2018
Dr. Vinamrata Shukla & Ors.
-Vs.-
State of West Bengal & Ors.
With
COT 49 of 2018
Dr. Aparanta Chandra & Ors.
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble The Chief Justice Jyotirmay
Bhattacharya
&
The Hon'ble Justice Arijit Banerjee
For the appellants : Mr. Abhratosh Majumdar, Ld. AAG,
Mr. Amitesh Banerjee, Sr. Standing
Counsel,
Mr. T. M. Siddiqui, Adv.
Mr. Avra Majumder, Adv.
Mr. Nilotpal Chatterjee, Adv.
For the respondent nos. : Mr. Pratik Dhar, Sr. Adv.
5, 6, 8, 10-14, 16-26, Ms. Deblina Lahiri, Adv.
28-31, 33, 35, 36, 42-44, Mr. Samir Halder, Adv.
46, 47, 49, 51, 52, 55-57 Ms. Samapti Roy, Adv.
59-64, 67, 68, 73-76,
84-93 in MAT 2076 of 2017
And appellants in MAT
380 of 2018)
For the MCI : Mr. Saugata Bhattacharyya, Adv.
Mr. Sunit Kumar Ray, Adv.
For the UOI : Mr. Kumarjyoti Tewari, Adv.
Mr. Apurba Ghosh, Adv.
For the WB University of : Mr. Supratic Roy, Adv.
Health Sciences
For the State : Mr. Tapan Kumar Mukherjee, Ld. AGP
(in MAT 380 of 2018) Mr. Somnath Naskar, Adv.
Heard On : 12.07.2018, 16.07.2018, 19.07.2018
26.07.2018, 30.07.2018, 02.08.2018
03.08.2018, 16.08.2018, 30.08.2018
Judgment On : 14.09.2018
Arijit Banerjee, J.:-
(1) These two appeals and the Cross Objection are directed against a
judgement and order dated 3 November 2017 whereby WP No. 18035
(W) 2016 (Dr. Naval Patel & Ors.-vs.-The State of West Bengal & Ors.)
was disposed of.
(2) Five notifications issued by the Department of Health and Family
Welfare, Government of West Bengal were under challenge before the
Learned Single Judge. The first notification which was dated 31 July
2013 reads as follows:-
"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.
2. 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.
3. It is also ordered that, 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 post graduate
admission has already commenced and on the verge
of completion in this academic session 2013-14)."
The second notification dated 21 March 2014 was essentially a
consequential notification, the subject whereof was implementation of
Bond for Doctors (other than Government sponsored in-service
candidates) undergoing Post Graduates and Post Doctoral Courses.
The third notification dated 10 June 2014 which was issued in
partial modification of the notification dated 31 July 2013 reads, in so
far as, is material for our purpose as follows:-
"Now, in partial modification of Notification
Number HF/Q/MERT/912/ME/MISC-78-13 dated 31st
day of July, 2013, it is hereby ordered that, every
postgraduate trainee (other than 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 panel
amount of Rupees Ten lakh for each defaulting year.
All original documents (Mark-Sheets, Certificates
and document as required by the Department of
Health & Family Welfare, Government of West
Bengal for time to time) will be retained by the
Department for the purpose of ensuring successful
completion of the bond prior or payment of panel
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."
The fourth and fifth notifications were again consequential
notifications issued to give effect to the earlier notifications and
pertain to the appointment of doctors in terms of the earlier
notifications for rendering compulsory service in Government Medical
Institutions.
(3) The 139 writ petitioners who challenged the aforesaid
notifications have all acquired the degree of Bachelor of Medicine and
Bachelor of Surgery (MBBS) from various State Universities. They are
also registered with the respective State Medical Councils.
(4) In all the States of the country except Jammu and Kashmir and
Andhra Pradesh, the Government Medical Teaching Institutions
conducting the MD, MS & PG Diploma courses have to keep 50 % of the
seats for students who qualify in the All India Entrance Examinations.
These examinations are known as the All India Post Graduate Medical
Entrance Examination (AIPGMEE) and the All India Post Graduate
Dental Entrance Examination (AIPGDEE). The remaining 50% seats can
be filled up by the State by conducting its own examination or on the
basis of results of AIPDMEE or AIPGDEE. The West Bengal Government
conducts separate examination for filling up the remaining 50 % of the
post graduate medical and dental seats.
(5) The writ petitioners qualified in the All India Entrance
Examination. After the counselling process, each of the writ
petitioners was allotted a medical teaching institute in West Bengal
and the petitioners took admission therein. At the time of their
admission, they were required to sign a Bond in terms of the
notifications mentioned above, to the effect that they would serve in
the rural areas of the State under the Department of Health & Family
Welfare for a specified period after obtaining the qualification. In
case they failed to do so, they would have to compensate the State
Government as stipulated in the Bond.
(6) Being aggrieved by such bondage, the writ petitioners challenged
the validity of the aforesaid notifications. The learned Single Judge by
the impugned judgment and order dated 3 November, 2017, held as
follows:-
"1. The impugned notifications dated 31st July, 2013
and 10th June, 2014 are products of executive action
of the state under Article 162 of the Constitution of
India. They are administrative orders. They are not
law within the meaning of Article 19 (2) of the
Constitution of India read with Article 13 (3)
thereof. Such exercise of executive power had the
sanction of the Constitution.
2. The aforesaid administrative orders were made
after due observance of the Conduct of Government
Business Rules contemplated in Article 166 of the
Constitution. In that respect the notifications are
valid.
3. The legal relationship between the petitioners
and the state was that the latter would provide post
graduate degree or diploma in medicine, on the
condition that the qualified doctors would serve the
rural areas of the state for a specified period of
time, failing which they would have to pay
liquidated damages. This is to be taken as a
composite bargain between the state and students.
The restriction in practice does not extend to any
period outside the contractual period. Hence, the
contract is not hit by Section 27 of the said Act.
4. No coercion or duress was exercised by the
respondents to compel the petitioners to sign the
bond promising to offer their service to the state for
a limited time and to pay compensation to the state
in case of breach. The candidates were aware of the
condition and wrote the entrance examination and
took admission subject to those conditions with their
eyes wide open.
5. The condition to render three year's
government service or make payment of penalty @
Rs. 10 lakhs per year per student is unreasonable
and arbitrary.
6. Only the notification dated 31st July, 2013 can
be enforced but on the condition that in case a
candidate wants to exit from government service, he
or she can pay Rs. 10 lakhs in five equal instalments
over a period of five years as may be specified by
the State Government within four weeks of this
order.
7. If there is default in the payment of
instalments the degree or diploma already granted
to a candidate may be suspended on the condition
that upon payment of the balance dues together
with such interest as may be specified by the state
government within a particular period of time the
degree or diploma may be restored.
8. The notification dated 10th June, 2014 is
unconstitutional, arbitrary, unreasonable and is set
aside. The notification dated 31st July, 2013 subject
to clauses 6 and 7 above will also apply to
petitioners covered by the 10th June, 2014
notification.
9. The petitioners or such of them to whom the
notifications apply will have an option whether to
avail of the notifications dated 26th July, 2016 and
10th August, 2016. In case they opt out of the
purview of the notifications or choose not to accept
them, they will be allowed the benefit of the
notification dated 31st July, 2013, read with
judgement and order, by the respondents.
10. The respondents will release all the documents
of the petitioners, e.g. mark sheet, degree/diploma
certificate held by them, within two weeks of
receipt of the penalty or the first instalment of it as
determined by them on the basis of this judgement
and order. "
(7) Being aggrieved the State is before us by way of MAT 2076 of
2017. Some of the writ petitioners have also preferred an appeal from
the same judgment and order being MAT 380 of 2018. Some other writ
petitioners have filed a Cross Objection being COT 49 of 2018. Since
the same issues are involved in the two appeals and the Cross
Objection, the same are taken up for hearing and disposal together.
(8) Appearing for the State Mr. Majumder, learned Additional
Advocate General drew our attention to a file note of the Health
Department, wherein it is recorded that the State is suffering from
inadequacy of Specialist Doctors. A proposal was noted to the effect
that a doctor acquiring Post-doctoral Degree (D.M & M.CH) may be
placed at secondary tiers in State Hospitals including Multi-Specialty
and Super-Specialty hospitals to serve there for at least one year. They
would be designated as Medical Officer (Specialist) and would be
engaged on a contractual basis. It was further suggested that the post-
doctoral course candidates would execute a 'Bond' to that effect and
if the condition of the bond is broken, they would be liable to deposit
bond money of Rs. 15 lakhs in favour of West Bengal Health and Family
Welfare Samity. Learned Counsel submitted that on the basis of the
aforesaid proposal the abovementioned notifications were issued.
(9) Mr. Majumder submitted that candidates were apprised of the
bond system prior to their sitting the Entrance Examinations. He
referred to the Information Bulletin for All India Post-Graduate Medical
Entrance Examination for the year 2014 and subsequent years and in
particular referred to question no. 30 under the heading 'Frequently
Asked Questions', which reads as follows:-
"Q. No. 30. What about condition of
stipend/fee/structure/course duration/bond
amount/rendering of service in rural/tribal
area/other conditionalities.
Ans: Stipend/fee structure/course duration/bond
amount/rendering of service in rural/tribal
area/other conditions etc. may vary from State to
State and Institute to Institute. Some seats may be
approved/permitted but not yet recognized by MCI.
The allotment made through online allotment
process will be firm and final as per Hon'ble
Supreme Court's guidelines. Therefore, the
candidates should well examine these points before
opting for a seat at a medical college. The Medical
Counselling Committee (MCC) shall neither be
responsible nor shall entertain any case on above
grounds, if any. The information received from
various participating Medical Colleges will be made
available on Ministry of Health & Family Welfare
website (under the Medical Counselling Post-
graduate Counselling 2014 - Information about
college, fee, bond information etc.) before
commencement of 50% All India PG Counselling 2014.
Candidates are also advised to visit the website of
college/institution to check the information. In case
they require any additional information, they can
contact the college/institution on telephone."
Learned Counsel submitted that the candidates were made aware
of the bond system and denial of such prior knowledge is dishonest.
(10) Mr. Majumdar referred to the A/O affirmed on behalf of the
State before the Learned Single Judge and submitted that various
valuable educational facilities are made available by the State to the
candidates undertaking the medical courses at a very nominal cost. In
effect, the State is offering highly subsidized medical education to the
candidates and hence it is not at all unreasonable for the State to
require them to serve the State Medical Institutions for a limited
period once they acquire their qualifications. Learned Counsel also
referred to the Global Policy Booklet published by World Health
Organization and submitted that WHO also recommends utilizing
services of these doctors in rural areas. Mr. Majumdar referred to the
decision of the Hon'ble Apex Court in the case of State of Punjab-vs.-
Shiv Ram & Ors., (2005) 7 SCC 1, wherein at paragraph 34 of the
judgment it was observed as follows:-
"34. The medical profession is one of the oldest
professions of the world and is the most
humanitarian one. There is no better service than
to serve the suffering, wounded and the sick.
Inherent in the concept of any profession is a code
of conduct, containing the basic ethics that
underline the moral values that govern professional
practice and is aimed at upholding its dignity.
Medical ethics underpin the values at the heart of
the practitioner-client relationship. In recent
times, professionals are developing a tendency to
forget that the self-regulation which is at the heart
of their profession is a privilege and not a right and
a profession obtains this privilege in return for an
implicit contract with society to provide good,
competent and accountable service to the public. It
must always be kept in mind that a doctor's is a
noble profession and the aim must be to serve
humanity, otherwise this dignified profession will
lost its true worth."
Learned Counsel submitted that the stand of the writ petitioners
is antithetic to the ethics of medical profession. The implicit social
responsibility of doctors has been made explicit by the bond system.
(11) He submitted that the medical students serving the rural areas
for a limited period after acquiring higher qualification is in greater
public interest. Where public interest is pitted against private
interest, the latter must give way to the former. In this connection he
referred to the Apex Court decision in the case of Sayyed Ratanbhai
Sayeed (dead) through legal representatives & Ors.-vs.-Shirdi Nagar
Panchayat & Anr., (2016) 4 SCC 631 to which we will revert back
later. Public interest demands the service of the newly qualified
doctors in rural areas. Learned Counsel submitted that the concerned
doctors are not made to render free service. They receive a
stipend/salary and in the process of serving in the State Medical
Institutions, they also gain valuable experience. Subsidized education
and compulsory service under the State come as a composite package.
Having enjoyed the benefit of subsidized medical education, the
people like the writ petitioners cannot shirk their responsibilities of
rendering compulsory service in the State Institutions. Learned
Counsel referred to the decision of the Bombay High Court in the case
of Dr. Vinod Shankarlal Sharma & Ors.-vs.-The State of Maharashtra
& Anr., 2013 AIR Bom 1. In that case the Bombay High Court upheld
the constitutional validity of the requirement imposed by the State as
incorporated in the bonds executed by the doctors pursuing super
specialized medical courses to the effect that they shall be required to
render one year service after the completion of their degrees in
Government or Municipal run medical colleges or in the defence
services.
(12) Learned Counsel then submitted that the learned Single Judge
has held that the writ petitioners signed the bond with eyes wide
open. After that, they cannot claim any equitable relief. The learned
Judge has disbelieved the writ petitioners' case that they were not
aware of the implications of the bond prior to executing the same.
Such finding has not been challenged. He submitted that the writ
petitioners did not approach the Court with clean hands and are thus
not entitled to any equitable relief. In this connection, he placed
reliance on the decision of the Apex Court in the case of Kishore
Samrite-vs.-State of Uttar Pradesh & Ors., (2013) 2 SCC 398.
Justice, equity and conscience are the trinity of a justice delivery
system, submitted Mr. Majumdar.
(13) Mr. Majumdar relied heavily on the recent decision of the Kerala
High Court in the case of Dr. Ayisha Beegam Devasya House, Pudu,
Bantwal, Dakshina Kannada, Karnataka 574169-vs.-State of Kerala
Represented by the Secretary to Government Health and Family
Affairs Department, Government Secretariat, Thiruvananthapuram
695001, (2018) SCC Online Ker 1287. In particular he relied on
paragraphs 38 and 42 to 46 of the judgment which read as follows:-
"38. But here, we see no absolute restraint on the
students' finding employment. In fact, the State
assures them of employment for the immediate one
year; they are entitled to pay and perks, too. True, it
restricts their choice, but that is a matter of contract,
which they chose to enter into. So it is fallacious to
claim that the students suffered any restraint on their
profession. In any event, we will examine both the
propositions-the public policy and professionals
restraint-in the factual backdrop.
............................................................
42. So we compel ourselves to conclude that the doctrine of public policy is highly subjective, shifting, and even changing. Statutorily examined, the compulsion of the students' fulfilling the bond- obligation does not seem to fall foul of any public policy. The Central Government, through Ext. P1, permitted the college, university, or the State Government to impose its own conditions for admission. The students, consciously, consented to the conditions, executed the bonds, and never challenged them--until they completed their course. True, students have a weak bargaining power in a contract vis-a-vis the college or the establishment. So they may have signed on the dotted lines, without demur. That said, still their conduct while they continued the course is inexplicable. They could have challenged the bond obligations. They did not.
43. Granted, education occupies the pride of place, and the students deserve every sympathy. But let us look at what underlines this transaction: the State or the college insisting on compulsory service or compensation. The State acted in its permissible limits and imposed an eligibility criterion; the student agreed and got admitted. The State compels the student to serve one year in the State where she dad honed her medical skills and acquired a higher qualification. After all the State invests and subsidizes medical education. In the scenario of limited resources, spending somewhere amounts to not spending somewhere else. So those who get benefitted must repay their debt--of gratitude.
44. Viewed differently, the doors are not shut on the students. They may serve the State and be paid or server their relation and leave it; it comes at a price; paying liquidated damages. If the students leave for greener pastures, they must be prepared to pay, to compensate. Medical profession--tough as it is and, perhaps, lucrative as it may be--is not all about money; it has still an element of service.
45. About the State's retaining the documents, we may observe that most students are from other states. After their leaving the place, it is well neigh impossible for the State or in the colleges to enforce recovery. So, as is permissible under law, and as agreed in clause 2.2 of the State prospectus, it can enforce its contractual right, by retaining the documents.
46. So the options for the student are two-fold: (1) the students must serve the bond period; or (2) they may, instead, pay the liquidated damages. For the college or Government, the options are these: (a) it can insist on the student's serving the bond period; (2) it can, on the student's refusal, recover the liquidated damages; (3) till such recovery, it can withhold the documents, as a matter of particular lien."
(14) Mr. Majumdar finally submitted that having accepted and upheld all the points of law argued on behalf of the State, the learned Single Judge in conclusion created a new contract between the writ petitioners and the State. By doing so, the learned Judge exceeded his jurisdiction.
Submission on behalf of the respondents/writ petitioners:-
(15) Appearing for the writ petitioners Mr. Pratik Dhar, learned Sr. Counsel submitted that the constitutional rights of the writ petitioners under Arts. 19(1)(g) and 21 have been sought to be curtailed by executive instructions in the form of the impugned notifications. This is impermissible in law.
(16) He then referred to the list of documents required for all India 50% quota at the time of admission for the years 2014, 2015 and 2016.
There is no mention of any service bond.
(17) Mr. Dhar then referred to a letter dated 27 December, 2001 issued by the office of the Director General of Health Services to all the Secretaries (Health & ME) of all States/Union Territories as also to Principal/Dean, Director of all Government Medical Colleges/Institutions stating therein that as per the directions given by the Apex Court on 27 July, 2001 in CA No. 1944 of 1993, there should not be any additional eligibility conditions/bonds for All India Quota Candidates. Learned Counsel submitted that the State of West Bengal complied with this exemption for All India Quota candidates from additional eligibility conditions till the year 2013. By way of example he referred to an admission document of Dr. B. C. Roy Post Graduate Institute of Paediatric Sciences, Calcutta wherein it is noted that any additional State condition shall not be applicable to All India Quota candidates. The State followed a path from 2001 to 2013. A sudden departure from such path by issuing departmental notification is not permissible. This can only be done by valid legislation. The writ petitioners are fighting as a matter of principle since the service bond has resulted in curtailment of their freedom. It is not that there will be an exodus even without the bond system invoked. Majority of the candidates are likely to serve in State Medical Institutions initially but the same should be a matter of choice for them. They cannot be compelled to do so.
(18) Mr. Dhar submitted that the impugned notifications interfere with the writ petitioner's liberty to work at a place they want to. Liberty does not only mean freedom to move around. The term 'liberty' is not confined to mere freedom from bodily restraint and liberty under law extends to the full range of conduct which the individual is free to pursue. It is a fundamental right of a citizen of our country. In this connection, learned Counsel relied on the decisions of the Apex Court in the cases of Kharak Singh-vs.-State of U.P. & Ors, AIR 1963 SC 1295 and K.S. Puttaswamy & Anr.-vs.-Union of India, (2017) 10 SCC 1.
(19) Mr. Dhar then relied on the decision of the Apex Court in the case of Harsh Pratap Sisodia-vs.-UOI & Ors., (1999) 2 SCC 575 in support of his submission that the State or the colleges cannot insist upon the satisfaction of the 'State requirements' as a condition to grant admission to the allottees against the all India quota. It is not open to any State to fix any additional eligibility criterion in cases of candidates who fall under the all India quota. For the same proposition he also referred to the decision of the Apex Court in the case of Anand S. Biji-vs.-State of Kerala & Ors., 2001 (6) SCALE 665. (20) Mr. Dhar referred to paragraph 4(a) of the A/O affirmed on behalf of the State respondents before the learned Single Judge and submitted that there is a clear admission that service bond requirement does not apply to All India Quota candidates and is meant only for the State Quota candidates. Paragraph 4(a) of the said A/O is set out hereinunder.
" That the petitioners had to sign a bond to serve the Rural Area under the Department of Health and Family Welfare, Government of West Bengal or in default pay the State Government an amount of Rs. 10,00,000/- with interest thereon. It was categorically mentioned to all the candidates in the information booklet meant for the State quota candidates before admission in the academic session 2013-14 onwards that notification no.:
HF/O/MERT/912/ME/MISC-78-13 dated 31.07.2013 annexure P-6 to the writ petition is required to be complied and all the doctors after completion their Post graduat4e and Post doctoral education in the State Medical Teaching institutes in West Bengal will have to work in Multispecialty /Super Specialist hospitals, Secondary and Tertiary level hospitals, in West Bengal for a continuous period of one year to serve the rural poor and for the purpose they were required to execute a bond at the time of admission with a penal amount of Rs. 10 Lakhs to re-
compensate the State Government in case of default. Subsequently, by notification No.: HF/O/MERT/923/ME/MISC-78-13 dated Kolkata, the 10th June 2014 annexure P-7 to the writ petition such period was extended to 2 years from the academic session 2015-16 onwards."
(21) Mr. Dhar then referred to the decision of the Apex Court in the case of Dr. Pradeep Jain & Ors.-vs.-Union of India & Ors., (1984) 3 SCC 654, in support of his submission that in regard to admissions to the Post-graduate course and particularly Super-specialty such as neuro-surgery and cardiology, there should be no reservation at all and admission should be granted purely on merit on all India basis. (22) Mr. Dhar referred to the file note that we have adverted to above and submitted that what is observed there is shortage of doctors with post-doctoral qualification. The writ petitioners are not such persons. However, at the time of issuing the notification post- graduate doctors were also roped in.
(23) Mr. Dhar submitted that freedom to practice medicine is a fundamental right under Art. 19 of the Constitution. Freedom to practice includes freedom not to practice. This freedom cannot be restricted by notification. Further, a fundamental right cannot be waived by a citizen. For this proposition learned Counsel relied on the decision of a Constitutional Bench of the Apex Court in the case of Basheshar Nath-vs.-Commissioner of Income Tax Delhi & Rajasthan And Anr., AIR 1959 SC 149. Reliance was also placed on the Apex Court decision in the case of OLGA Tellis & Ors.-vs.-Bombay Municipal Corporation & Ors., (1985) 3 SCC 545.
(24) Learned Counsel then referred to the decision of the Uttarakhand High Court in the case of Romil Saini & Ors.-vs.-State of Uttarakhand & Ors., (2015) SCC Online Utt 1296, wherein it was held that in view of the judgment passed by the Apex Court in the case of Anand S. Biji (supra) the State Government did not have jurisdiction to pressurise the petitioners to execute bonds to serve the State Government for five years or else to pay damages to the tune of Rs. 30 lac. Learned Counsel also referred to the decision of the Gujarat High Court in the case of Poojaben Rajeshkumar Patel-vs.-State of Gujarat & Ors., (2014) SCC Online Guj 7988, wherein it was held that in the absence of Rules or Regulations, the respondent college could not retain the original documents of the petitioner and could not refuse to return the same even if there has been breach of the terms and the conditions of the service bond executed by the petitioner.
(25) Mr. Dhar referred to an unreported decision of the Chhattisgarh High Court in Writ Petition (C) No. 586 of 2012 (Dr. Amit Bishamlal Vallabhani-vs.-State of Chhattisgarh, Through Secretary, Department of Health & Family Welfare, DKS Bhawan, Mantralaya, Raipur (CG)). In that case the Division Bench of the Chhattisgarh High Court by its order dated 10 July, 2012 while upholding the validity and constitutionality of the concerned rules providing for execution of service bond, held that the same cannot be used, implemented and enforced against those candidates who are given admission due to they having passed All India Quota Entrance Examination. In other words, All India Quota candidates could not be required to execute service bonds.
(26) Mr. Dhar then submitted that the executive cannot change the law nor can supersede a judgment of a competent court. The Government having followed for long the decision of the Apex Court in the cases of Harsh Pratap Sisodia (supra) and Anand S. Biji (supra), cannot suddenly now deviate therefrom. In this connection, he relied on the decision of the Apex Court in the case of Nookala Setharamaiah-vs.-Kotaiah Naidu & Ors, (1970) 2 SCC 13. (27) Mr. Dhar then submitted that the impugned notifications have been issued by the State in exercise of its power under Art. 162 of the Constitution. Such notifications are the results of administrative decisions and are not law within the meaning of Art. 13 of the Constitution of India. If a customary law is to be given a go-bye for any purpose, the same must be done in terms of a statute and not otherwise. For this proposition he relied on the decision of the Apex Court in the case of Punit Rai-vs.-Dinesh Chaudhary, (2003) 8 SCC
204. For the same proposition he also relied on the decision of the Apex Court in the case of State of Kerala & Ors.-vs.- Chandramohanan, (2004) 3 SCC 429.
(28) Learned Counsel then submitted that just because the State has spent money for training of the writ petitioners, the State cannot demand that the said All India Quota candidates must serve the State for a certain period. These candidates have succeeded on their own merit in an All India competitive examination. State has not done any favour to them or has not conferred any special benefit on them. The service bonds extracted from the writ petitioners are illegal and just because the State has spent some money for the education of the writ petitioners, such illegality would not become legitimate. In this connection, Mr. Dhar relied on the Apex Court decision in the case of Sri K. Ramadas Shenoy-vs.-The Chief Officers, Town Municipal Council, UDIPI & Ors., (1974) 2 SCC 506.
(29) Mr. Dhar then submitted that any Act of the Government, if the same prejudices a citizen, must have legislative sanction. Otherwise, such Act must be struck down. In support of this submission, he relied on the decision of the Apex Court in the case of State of Madhya Pradesh & Anr.-vs.-Thakur Bharat Singh, AIR 1967 SC 1170. (30) Learned Counsel then submitted that just because the writ petitioners executed the bonds, they are not precluded from challenging the impugned notifications. Nobody can be precluded from exercising his constitutional right of invoking Art. 226 of the Constitution. There can be no estoppel against a statute much less against a constitutional provision. In this connection, learned Counsel relied on the decisions of the Apex Court in the cases of AIR India-vs.- Nergesh Meerza & Ors., (1981) 4 SCC 335 and Prashant Ramachandra Deshpande-vs.-Maruti Balaram Haibatti, (1995) Supp (2) SCC 539.
(31) Mr. Dhar submitted that to the extent the bonds executed by the writ petitioners are being sought to be enforced beyond the period of the educational course undergone by the writ petitioners, the same are void. If the terms and conditions of a contract are sought to be enforced beyond the term and expiry of the agreement, it becomes void. For this proposition learned Counsel relied on the decision of the Apex Court in the case of Percept D'Mark (India) (P) Ltd.-vs.- Zaheer Khan & Anr., (2006) 4 SCC 227.
(32) Mr. Dhar then submitted that the service bonds executed by the writ petitioners fall foul of Sec. 27 of the Indian Contract Act being in restraint of a lawful profession and accordingly void. In this connection, reliance was placed on the decision of the Apex Court in the case of Gujarat Bottling Co. Ltd. & Ors.-vs.-Coca Cola Co. & Ors., (1995) 5 SCC 545.
(33) Mr. Saugata Bhattacharyya, Learned Senior Counsel, appearing for the Indian Medical Council referred to various provisions of the Indian Medical Council Act, 1956. He referred to Section 33 of the 1956 Act which empowers the Medical Council of India (MCI) to make regulations relating to various matters including conduct of professional examinations, conditions for participating in such examinations and qualifications of examiners. He also referred to the Post-graduate Medical Education Regulations, 2000 and two Apex Court's decisions in the cases of Harsh Pratap Sisodia (supra) and Dr. Preeti Srivastava & Anr.-vs.-State of Madhya Pradesh & Ors., AIR 1999 SC 2894. The second decision states that both the Union as well as the States have the power to legislate on education including medical education subject to, inter alia, Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has the right to control education including medical education so long as the field is not occupied by any Union Legislation. The State cannot while controlling education in the State, impinge on standards in institutions for higher education because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. However, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. Thus, a State may, for admission to the post graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But in lowering of the norms laid down can and do have an adverse effect on the standards of education in the institutes of higher education.
With respect, we do not find much relevance of the above decision to the facts of the present case.
State in reply:
(34) In reply, learned Addl. Adv. General submitted that the State can issue executive instructions with respect to any matter in the State List or Concurrent List so long as it is not in conflict with a Central instruction. If the field is not occupied, the State Government can issue executive instructions. In this connection, learned Counsel relied on the Apex Court's decision in the case of Rai Sahib Ram Jawaya Kapur & Ors.-vs.-State of Punjab, AIR 1955 SC 549 and in the case of Bishambhar Dayal Chandra Mohan & Ors.-vs.-State of Uttar Pradesh & Ors., (1982) 1 SCC 39. Learned Counsel also referred to the Rules of Business of the Government of West Bengal framed under Art. 166 (3) of the Constitution of India and in particular Rule 47. (35) Learned Counsel then referred to the State's affidavit dated 11 May, 2017 filed before the learned Single Judge wherein at paragraph 5 it is stated that the answer to question no. 28 in the Frequently Asked Questions for the All India Quota Post Graduate Medical/Dental Seats, 2014 online allotment process clearly indicated that the stipend/fee structure/course duration/bond amount/rendering of service in rural/tribal areas/other conditions etc. may vary from State to State and institute to institute. In fact, all the writ petitioners executed bonds for rural service without any protest or demur. Their stand before the learned Single Judge that the Frequently Asked Questions were not made available to them prior to the entrance examination i.e, All India Medical Entrance Examination, 2014 was disbelieved by the learned Single Judge and this finding of fact has not been assailed in the Memorandum of Appeal.
(36) Mr. Majumdar then submitted that the writ petitioners do not have any fundamental right to pursue post graduate medical education at subsidised rates. Art. 19(1)(g) of the Constitution does not confer any such right on them. The petitioners had unfettered freedom of choice while opting for West Bengal as their educational destination.
They did not do so under any duress. They chose West Bengal because of the low educational cost. Further, they are still free to go for higher education by paying the bond amount.
(37) Referring to the decisions in Harsh Pratap Sisodia (supra) and Anand S. Biji (supra), Learned Counsel submitted that the bond is not an eligibility criterion. Hence, the bond does not fall foul of the said two Apex Court's decisions.
Court's View:-
(38) We have carefully considered the rival contentions of the parties.
In the facts of the case, the following issues arise for our consideration and determination:-
(i) Could the State Government have introduced the bond system by issuing the notifications which are under challenge in the present proceeding or was legislation necessary for that purpose?
(ii) Do the notifications impinge upon the freedom of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art. 19(1)(g) of the Constitution?
(iii) Were the writ petitioners aware of the bond system before opting for West Bengal as their academic destination for post graduate medical studies?
(iv) Is the bond system in restraint of a lawful profession, trade or business and is thus violative of Sec. 27 of the Indian Contract Act?
(v) Is there any such infirmity in the judgment and order impugned before us as would warrant interference by this Court? Re: Issue No. (i):-
(39) Mr. Dhar argued that the impugned notifications are the results of administrative decisions and not law within the meaning of Art. 13 of the Constitution. Specific legislation is required if a customary law is to be given a go-bye. We are unable to agree with learned Counsel.
Art. 166 of the Constitution of India pertains to conduct of business of the Government of a State. Clause 3 of that Article provides that the Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the State business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In exercise of power under Art. 166(3) Rules of Business have been framed for the Government of West Bengal. Under Rule 47 of the Rules of Business the Addl. Chief Secretary or the Principal Secretary or the Secretary or the Special Secretary or the Joint Secretary-in-charge of the Department concerned is responsible for the proper transaction of business on careful observance of the Rules. The rules may, to such extent as necessary, be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. The impugned notifications have been issued either by the Joint Secretary or the Special Secretary to the Government of West Bengal. Thus, they are issued by the Officers of the State authorised in that regard under the Rules of Business of the State Government. (40) The question now is whether the clauses 1 and 2 of Art. 166 of the Constitution have been followed. Clause 1 provides that all executive actions of the Government of a State shall be exercised to be taken in the name of the Governor. Clause 2 provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the Rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(41) It was urged on behalf of the writ petitioners that Clauses (1) and (2) of Art. 166 of the Constitution were not complied with while issuing the impugned notifications. Even assuming that in issuing the notifications under challenge Clauses (1) and (2) of Art. 166 were not adhered to, the same per se, would not make the notifications bad. In this connection, one may refer to the decision of the Apex Court in the case of Lalaram & Ors.-vs.-Jaipur Development Authority & Anr., (2016) 11 SCC 31.
(42) The next question is whether or not the State Government could introduce the bond system by issuing notifications? In our opinion, the answer is in the affirmative. Under Art. 162 of the Constitution the executive power of a State shall extend to the matters with respect to which the State Legislature has power to make laws; provided that, in any matter with respect to which both the State Legislature and the Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.
(43) Entry 25 of List II of Schedule 7 to the Constitution vests the State legislature with the power to make laws with regard to education including technical education, medical education and universities subject to the provisions of Entries 63, 64, 65 and 66 of List I and vocational and technical training of labour. Hence, the State can exercise executive power by issuing administrative circulars/notifications in relation to education in a field which is not occupied by any Central Legislation or notification. (44) In the case of Rai Sahib Ram Jawaya Kapur & Ors.-vs.-State of Punjab (supra), the Apex Court in the context of Art. 73 (extent of executive power of the Union) and Art. 162 observed that neither of these articles contained any definition as to what the executive function is and what activities are legitimately given within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State Executive, as the case may be, can proceed to function in respect of them. On the other hand, the language of Art. 162 clearly indicates that the powers of the State Executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Art. 73 of the Constitution. In Bishambhar Dayal Chandra Mohan & Ors.- vs.-State of Uttar Pradesh & Ors. (supra), at paragraph 20 of the reported judgment the Apex Court observed as follows:-
"20. Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, Mukherjea, C.J., dealt with the scope of Arts. 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: "Ordinarily the executive power con-notes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill."
(45) Hence, it is clear that in a field which is not occupied by any legislation, be it Central or State law or any Central notification, and the State Legislature is competent to legislate in that field, the State Government can fill up the vacuum by issuing executive instructions in the form of circulars/notifications etc. following the Rules of Business. This power must be conceded to the State Government as otherwise administration is likely to come to a standstill. Naturally, there cannot be legislation with respect to each and every matter which affects daily decision of the affairs of a Government. In the present case, there is no law, whether Central or State, relating to compulsory service bond. Hence, in our view, the State Government was competent to issue the notifications impugned in this proceeding and by doing so has not exceeded its jurisdiction. The first issue is therefore decided in favour of the State Government. It may be noted that this point was decided in favour of the State also by the learned Single Judge.
Re: Issue nos. (ii) and (iii):-
(46) Mr. Dhar submitted that the freedom to practise medicine is a fundamental right under Art. 19((1)(g) of the Constitution. This freedom includes freedom not to practice also. A fundamental right cannot be waived. We quite appreciate Mr. Dhar's submission. As a proposition of law it is unexceptionable that a fundamental right cannot be waived. But in our opinion, no question of waiver of any fundamental right arises in the present case. We are in agreement with the submission of learned Add. Adv. General that the writ petitioners did not have any fundamental right to pursue post graduate medical education in the State of West Bengal at a highly subsidised rate. With open eyes they chose West Bengal as the State where they wanted to pursue the post graduate medical education at highly subsidised costs. The writ petitioners are all post graduate degree trainees/students. For them the fee structure was as follows:-
POST GRADUATE DEGREE TRAINEES/STUDENTS Admission fees Rs. 2000/-
Tuition fees Rs. 1000/- per month
(36months)
Examination Fees Rs. 10000/-
Registration Fees Rs. 2000/-
Total Rs. 50,000/-
Thus, the three years post graduate medical course cost each of the petitioners Rs. 50,000/- in all. The State has to spend much more to run these post graduate medical courses. Obviously, to take advantage of this highly subsidised post graduate medical education, the writ petitioners opted for this State. They were at liberty and had full freedom not to pursue their studies in West Bengal. Their stand that they were not aware of the compulsory service bond prior to sitting the entrance examination has been disbelieved by the learned Single Judge. Such finding of fact has not been challenged before us. Even independently, it is difficult for us to believe that being medical graduates the writ petitioners would not apprise themselves of all the terms and conditions on which they could pursue a post graduate medical course in West Bengal. Question no. 28 and the answer thereto of the Frequently Asked Questions appended to the Information Bulletin for All India Quota Post Graduate Medical/Dental Seats for the relevant period reads as follows:-
"28. Q. What about condition of stipend / fee structure / course duration / bond amount / rendering of service in rural / tribal area / other conditionalities.
Ans. Stipend/fee structure/course duration/bond amount/rendering of service in rural/tribal area/other conditions etc. may vary from State to State and Institute to Institute. Some seats may be approved/ permitted but not yet recognised by MCI. The allotment through online allotment process will be firm and final as per Hon'ble Supreme Court's guidelines. Therefore, the candidates should well examine these points before opting for a seat at a medical college. The medical Counselling Committee (MCC) shall neither be responsible nor shall entertain any case on above grounds, if any. The information received from various participating Medical / Dental Colleges has been made available on Ministry of Health & Family Welfare / MCC website (under the Medical Counselling -Post graduate Counselling 2014 - Information about college, fee, bond information etc.). Candidates are advised to visit the website of college/ institution to check the information. In case they require any additional information, they can contact the college / institution on telephone."
In view of the said advise, if the writ petitioners chose not to take the trouble of finding out the applicability of compulsory bond service in West Bengal, then they did so at their own peril. Mr. Dhar, learned Counsel for the writ petitioners strongly relied on a statement made in paragraph 4(a) of the State's A/O affirmed on 9 January, 2017 and filed before the learned Single Judge to the effect that the requirement of compulsory rural service was mentioned in the information booklet meant for the State Quota candidates. He submitted that since the writ petitioners were All India Quota candidates the compulsory bond service did not apply to them. We are of the opinion that such a stray statement in the said affidavit should not be read in isolation. The statement made in the State's A/O dated 11 May, 2017 at paragraph 5 which we have referred to above must also be considered. The learned Single Judge has also found that the writ petitioners were well aware of the compulsory bond service in West Bengal prior to participating in the entrance examination or at least prior to they undergoing the counselling process. The ignorance pleaded in that regard by the writ petitioners are not acceptable to us. (47) Therefore, we conclude that with open eyes and with full knowledge that if they pursue the post graduate medical course in West Bengal at the highly subsidised rate, they would have to undergo compulsory service as contractual medical officers in rural areas as per the bond condition, the writ petitioners opted for West Bengal as their post graduate educational destination. They executed the bonds voluntarily to take advantage of the low educational cost in this State and did not do so under any duress. This was also the finding learned Single Judge with which we fully concur.
(48) In the above factual scenario, can it be said that any fundamental right of the writ petitioners has been infringed by requiring them to execute the compulsory service bonds as a pre- condition for pursuing the post graduate medical course in West Bengal? To our mind, the answer must be in the negative. The writ petitioners had a complete freedom of choice regarding their academic destination. They were conscious that in so far as this State is concerned, the post graduate medical course and the compulsory medical service bond came as an integral package. If they wanted higher education at extremely low cost, they had to serve the State Government medical institutions in rural areas for the period of time mentioned in the respective bonds. Otherwise, they were free to opt for any other State where the bond requirement was not there. It is also pertinent to note that they are not required to serve the State Government free of cost. They would be appointed as contractual medical officers at a monthly remuneration of Rs. 50,000/- for the compulsory service period. We do not find anything unreasonable or arbitrary or unlawful about the compulsory service bonds. It is a policy decision of the State Government in public interest. The submission of Mr. Dhar that the State Government did not insist on such service bonds between 2001-13 and suddenly could not have deviated from past practise from 2014 onwards, cannot be countenanced. The Government is always free to change its policy if the administrative exigencies so warrant. It is only that the new policy ought not to be unreasonable or arbitrary or capricious or in contravention of any law. (49) The submission of Mr. Dhar that the service bonds are contrary to the decisions of the Apex Court in the case of Harsh Pratap Sisodia (supra) and Anand S. Biji (supra) is also not acceptable. As we read the said decisions, they were to the effect that additional eligibility criteria should not be prescribed by the State Governments for admission to the post graduate medical courses. The compulsory service bond is not an eligibility criterion. The eligibility criteria pertain to the educational qualifications of the candidates. The compulsory service bond is a condition to which a candidate has to agree to avail of the subsidised post graduate educational facilities in West Bengal. The writ petitioners were not compelled to undergo post graduate medical studies in West Bengal. It was an informed decision that they took by exercising their freedom of choice uninfluenced by the State authorities in any manner. It was a kind of contract that the writ petitioners entered into with the State to serve the State medical institutions for the bond period in return for the State imparting high quality and highly subsidised post graduate medical education to them. It was a bargain that the writ petitioners struck on their own volition and they must honour their obligation under the deal. It is not that they do not have an exit route. It is not that they are in a position of servitude. They are free to pursue their career elsewhere without serving the State for the bond period upon payment of the recompense amounts mentioned in the bond.
(50) It is also established law that a policy decision taken by the State in public interest should not be lightly interfered with. In Census Commissioner & Ors.-vs.-R. Krishnamurthy, (2015) 2 SCC 796, the Apex Court held inter alia, that it is not within the domain of the Courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court may interfere only if the policy framed is absolutely capricious or not informed with reasons or totally arbitrary offending the basic requirement of Art. 14 of the Constitution. As often said, in certain matters there can be opinions and opinions but the Court in exercise of its power of judicial review should not sit as an appellate authority on an opinion formed by the State Administration. Similar observations have been made by the Apex Court in the case of Union of India & Ors.-vs.-M. Selvakumar & Anr., (2017) 3 SCC 504, at paragraph 47 of the reported judgment.
We are also of the view that in so far as health of the members of the public at large is concerned, private interest must give way to public interest.
(51) In Sayyed Ratanbhai Sayeed (dead) through LRs & Ors.-vs.- Shirdi Nagar Panchayat & Anr., (supra), the Apex Court observed that the notion of public interest is synonymous with collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine - res communis i.e. by everyone in common. Perceptionally, health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights if in conflict therewith, have to take a back seat. In the words of Marcus Tullius Cicero, the great Roman Statesman, orator, lawyer and philosopher, "the good of the people is the chief law". The Apex Court referred to the latin maxim Salus Populi Suprema Lex Esto which means the health, welfare, good salvation and felicity of the people should be the supreme law. The Apex Court quoted with approval the enunciation made by Herbert Broom, in his celebrated publication "A Selection of Legal Maxims", wherein he stated that the aforesaid latin maxim is based on the implied agreement of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good.
In view of the aforesaid, issue nos. (ii) and (iii) are also decided in favour of the State.
(52) Coming to issue no. (iv) i.e., whether the bond system falls foul of Sec.27 of the Indian Contract Act, in our opinion, the answer is in the negative. The post graduate medical course and the service bond come as a package. The service bond in effect operates as a negative covenant during the period of the bond requiring to the candidate serve the State for the bond period or pay compensation in lieu thereof. It is not in restraint of any business or profession. On the contrary, the State offers the job of medical officer on a contractual basis to the concerned candidate. This covenant operates only during the period of the employment and it does not operate beyond such period and hence, is fully valid in law. In this connection reference may be made to the following decisions of the Apex Court in the cases of Gujarat Bottling Co. Ltd. (supra) and Percept D'Mark (India) (P) Ltd. (supra). In the first of these cases, the Apex Court referred to the dictum of Lord Morris in the case of Esso Petroleum Co. Ltd.-vs.- Harper's Garage (Stourport) Ltd., (1967) 1 All ER 699, to the following effect:- 'thus, 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'. In the same case, the Apex Court referred to the dicta of A.P. Sen, J., in the case of Superintendence Company of India Pvt. Ltd.-vs.- Krishan Murgai, (1981) 2 SCC 246, to the effect that 'the doctrine of restraint of trade never applies during the continuance of a contract of employment; it applies only when the contract comes to an end'. Similarly observations of the Apex Court are there in the case of Percept D'Mark (India) (P) Ltd. (supra).
(53) A Division Bench of the Bombay High Court upheld the constitutionality of similar rural service bond in the case of Dr. Vinod Shankarlal Sharma (supra). In that case, it was observed that the State Government does not charge fees commensurate with the cost of medical education from students who pursue their MBBS degrees or post graduation or super-specialization in Government and Municipal medical colleges. Admissions to such colleges are highly regarded because of the exposure and knowledge which students gain in the course of their medical studies in those institutions. The State spends a considerable amount of money in providing subsidised medical education. As a condition attaching to the provisions of subsidised medical education, it is legitimately open to the State to assert that upon the completion of their studies, such doctors should be required to render public service for a specified period of time as mentioned in the service bond. After completion of service for the bond period, the doctor is free for the rest of his or her professional career to serve elsewhere in the country or wherever. The condition imposed by the State Government requiring service for a specified period which of course has to be reasonable, cannot be regarded as arbitrary or unreasonable. Even as a matter of first principle, the State has a legitimate interest in ensuring that while on the one hand it creates an infrastructure necessary for the pursuit of medical studies especially for the higher level students who benefit from that infrastructure and its attendant resource base, they must contribute back to the community by rendering public service. The importance of the wider social perspective cannot be lost from purview. The Bombay High Court did not find any infirmity in the policy decision of the State Government that students who complete their medical degrees from Government and Municipal run medical colleges must perform public service for a stipulated period in recognition of the fact that the public exchequer bears a large burden of the expenditure incurred on their medical education. It was held that such a requirement is based on a valid rationale and the classification meets the requirements of a reasonable classification for the purposes of Art. 14 of the Constitution. We completely agree with the reasoning and the decision of the Bombay High Court in the said case. (54) A Division Bench of the Kerala High Court has also taken a similar view and has held such service bonds to be constitutionally valid in the case of Ayisha Beegam (Dr.) (supra). We completely agree with the rationale and conclusion of the said High Court contained in paragraphs 42 to 46 of its judgment which have been set out at paragraph 13 of this judgment.
(55) In so far as the judgments in Kharak Singh (supra), M. P. Singh (supra) and K. S. Puttaswamy (supra) are concerned, the same relate to the right to privacy. Neither physical privacy nor informational privacy nor privacy of choice was held to be relatable to Art. 19(1)(g) of the Constitution. In our opinion, the said decisions are not germane for deciding the issues involved in the present case. (56) In so far as the decision of the Uttarakhand High Court in Romil Saini (supra) and of the Gujarat High Court in Poojaben Rajeshkumar Patel (supra) are concerned, the same have been delivered following the Apex Court decision in Harsh Pratap Sisodia (supra) and Anand S. Biji (supra). We have already indicated above as to how the service bond does not run counter to the said two decisions of the Apex Court. In the case of Dr. Amit Bishamlal Vallabhani & Ors.-vs.-State of Chattisgarh & Ors (Writ Petition (C) No. 586 of 2012) the petitioners had refused to execute the bond and questioned the legality and validity of the relevant rules introducing condition for execution of bond by filing writ petition before the High Court at Chattisgarh. The Chattisgarh High Court declared the said rules to be unconstitutional. However, in the present case, the writ petitioners duly executed the bonds and only later during the continuance of their medical courses they challenged the notification issued by the State Government providing for execution of the bond. In any event, none of the said High Courts considered the effect of the Information Bulletin issued by the National Board of Examination for AIPGMEE.
Re: Issue no. (v):-
(57) The only issue that remains is whether or not there is such an error in the judgment and order impugned before us which calls for our interference. We have extracted the summary of the Learned Single Judge's judgment at paragraph 6 above. It may be noted that the Learned Judge has held that exercise of executive power by the State had the sanction of the Constitution. The impugned notifications were validly issued in accordance with the Conduct of Government Business Rules. Admission to the post graduate medical course and execution of compulsory service bond are to be taken as a composite bargain between the States and the students. The restriction in practice does not extend to any period beyond the contractual period and hence, the contract is not hit by Section 27 of the Indian Contract Act. No coercion or duress was exercised on the students for signing the service bond. The candidates were fully conscious of the condition and sat the entrance examination and took admission subject to such condition.
With all such findings we are in complete agreement. However, we cannot agree with the findings of the Learned Judge as set out in sub- paragraphs 5 to 10 under paragraph 6 above.
(58) For the reasons indicated above, we are of the opinion that the notifications impugned are neither unreasonable nor arbitrary. Further, the learned Judge should not have created a new contract between the State and the students by allowing the students to pay the bond amount in five equal annual instalments with the rider that upon payment of the first instalment the respondent authorities will release the documents of the students, e.g., mark sheet, degree/diploma certificate etc.. It is not within the domain of the Court to novate a contract between the two litigating parties. Accordingly, the findings set out at sub-paragraphs 5 to 10 of paragraph 6 above are set aside. The State's appeal is allowed to that extent. The other appeal being MAT 380 of 2018 preferred by some of the writ petitioners and the cross-objection being COT 49 of 2018 filed by some other writ petitioners are dismissed. We make it clear that the service bonds executed by the writ petitioners are valid and constitutional and constitute a binding contract between the State and the students and are legally enforceable.
(59) The appeals and the cross-objection are accordingly disposed of. (60) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.)