Gujarat High Court
Aditya Vimalbhai Jivrajani vs The State Of Gujarat Department Of ... on 20 February, 2021
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/SCA/16026/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16026 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and Sd/-
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ADITYA VIMALBHAI JIVRAJANI & 306 other(s)
Versus
THE STATE OF GUJARAT DEPARTMENT OF HEALTH AND FAMILY
WELFARE & 1 other(s)
================================================================
Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE with MR DIGANT B KAKKAD for
the Petitioner(s).
MR KAMAL B.TRIVEDI, ADVOCATE GENERAL with MS MANISHA
LAVKUMAR SHAH, GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 20/02/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) Page 1 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT
1. By this application under Article 226 of the Constitution of India, the writapplicants have prayed for the following reliefs :
"(A) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the Respondent No.1 or its delegates, officers, subordinates to honor the Bond Contract executed between the Petitioners and Respondent No.1. Further, to issue Bond Free Certificate to those Petitioners who are ready and willing to honor the Bond by paying Rs.5,00,000/ (Rupees Five Lakhs Only) as described in Bond Contract;
(B) This Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction to the Respondent No.1 or its delegates, officers, subordinates, NOT to enforce orders granting appointment to Petitioners i.e. orders dated 24.07.2020, 10.11.2020, 20.11.2020, 22.11.2020, 25.11.2020, 27.11.2020, 29.11.2020 and 03.12.2020 at Annexures - 'C', 'D', 'E', 'FColly', till NEETPG Entrance Exams are held in 2021;
(C) Your Lordships may be pleased to issue writ of mandamus by issuing any appropriate writ, order or direction in the nature of mandamus or any other writ, to quash and setaside orders dated 20.11.2020, 22.11.2020, 25.11.2020, 27.11.2020, 29.11.2020 and 03.12.2020 i.e. Annexures - 'C', 'D', 'E', 'FColly' passed by the Respondent No.1 granting appointment to the Petitioners and other Page 2 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT similarly situated persons, as being without any authority of law;
(D) Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the orders dated 24.07.2020, 10.11.2020, 20.11.2020, 22.11.2020, 25.11.2020, 27.11.2020, 29.11.2020 and 03.12.2020 passed by the Respondent No.1 granting appointment to the Petitioners and other similarly situated persons till NEETPG Entrance Exams are held in 2021;
(E) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be granted in favour of the petitioner."
2. In this hour of crisis when the battle against the Covid19 pandemic is still on, a batch of almost 307 doctors have once again disappointed this Court by saying that the Government should not ask them to render their services compulsorily at the Covid Hospitals as they all intend to prepare themselves for the forthcoming PG Entrance Examination (NEET) scheduled to be held some time in March 2021.
3. We would like to remind the writapplicants of what we observed in an identical litigation in the case of Patel Shreyaskumar Kamleshkumar vs. State of Gujarat (Special Civil Application No.9139 of 2020, decided on 19 th August 2020). We quote the relevant observations thus :
Page 3 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT"Any one with reasonable intelligence matched with hard work can become a doctor and attain the coveted degree of MBBS. However, privileged are the few who are blessed with an opportunity to use their degree and learning to heal this ailing world while it is going through a global crises. You have an opportunity now to not just become the qualified doctors but frontline soldiers in this war against the Covid19 pandemic. It is neither a demand nor a request. In our opinion, this is a privilege that all of you are blessed with to achieve the self satisfaction of becoming Doctors for a cause. On one hand it is a call of duty. But more than duty, here is an opportunity of a life time to experience the beautify of healing on a scale and challenges which, in our opinion, happen to be historic. Your reward will be the satisfaction of saving lives to scale. Your reward will be selffulfillment. You will earn the respect of your family, friends and peers as frontline Covid Warriors but, above all, else you will find new respect for life and for living with a sense of purpose and responsibility. Rise to this opportunity to make MBBS = Medics Bound By Service (to all humanity).
In the universal record of 'good karma', the names of young aspiring doctors like you shall be etched in letters of gold, especially in the hearts of the ailing, their families and for generations to come stories of your heroic deeds shall be remembered with affection and respect. Your success at the Page 4 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT end of this war will be your pride. The true reward of serving others is not what you get out of it. It's what you become as a result of that service fulfilled, satisfied, proud and that "feel good factor" of having done something heroic and historic. We repeat, it's a privilege that all are not blessed with. You have the qualifications and the skills and as medics you are not just frontline soldiers you are healers of this ailing world."
4. It is the case of the writapplicants that they have, in the present case, completed their M.B.B.S. course and had commenced compulsory internship of one year. For some of the writapplicants, the internship was to come to an end in February 2020, whereas for few others, it was to come to end in September 2020. They all now intend to prepare themselves for the NEETPG 2021 (National EligibilitycumEntrance Test for PostGraduation).
5. It is the case of the writapplicants that they had executed a bond and solvency certificate and the same was handed over to the Dean of the respective Government Medical College at the time of their admission for the M.B.B.S. Degree Course for the Academic Year 201415. The conditions of the bond are as under:
"(1) Diligently prosecute and complete the said course at the said college or any other Medical College in the State and pass the prescribed university examination for the said course, and Page 5 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT (2) within a period of 30 days from the date of his/her completing the period of internships or rotating housemanship give to the Government by registered post notice in writing intimating the completion of his/her period of internship or housemanship provided however that if the student is desirous of continuing postgraduate studies.
Such notice shall expressly specify such desire and request for permission of the Government to continue such post graduate studies and it shall be open to the Government in its absolute discretion to refuse such permission or to grant it subject to the condition that the student shall within one month from the completion of postgraduate course give a like notice to the Government: and (3) When called upon by the Government at any time within a period of six months from the receipt of the notice from the student as aforesaid join the state Services and serve in any of the rural areas of the state for a minimum period of three years including one year service in any of the tribal areas of the State at such remuneration as may be prescribed thereof and in the event of the student not being so called upon by the Government to join the State Services and serve them for the aggregate period of three years in any of the rural areas of the State including one year service in any of the tribal areas of the State and during the period which the student is required to serve under the provisions of this bond faithfully discharge the duties assigned to him/her by the Government or his/her other superiors with Page 6 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT utmost diligence and efficiency and shall observe the rules for time being in force regulating the conduct of persons so serving.
Then the above written bond shall become void otherwise the same shall remain in full force and virtue.
And in the event of student committing a breach of any of the above terms and conditions the whole of the amount of Rs.5,00,000 (Rupees Five lakh only) as per Government of Gujarat Health & Family Welfare Department Gandhinagar resolution dated 28062013 & 01072013 No.MCG/1013/ SFS54/J or such lesser sum as the Government may in its absolute discretion decide, shall become payable jointly, and severally by the student or the father/natural guardian of the student in case of minor student and the above surety ........................................................ (Full name of the Surety) ........................................................... forthwith and the Government may without prejudice to any other rights and remedies of the Government recover the same from the student or the father/natural guardian of the student in case of a minor student and the above surety.
...............................................................................................
(Full name of the surety) And upon making of such payment the above written obligation shall be void and of no effect, otherwise it shall be and remain in full force and virtue ;
Page 7 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENTProvided always and it is hereby agreed and declared that the decision of the Government as whether the said student has or has not performed and observed any of the obligations and conditions herein before recited and the amount of compensation payable in this behalf shall be final and binding on the parties hereto.
Provided further that the liability of the surety here under shall not be impaired or discharged by reasons of time being granted or any forbearance, act of omission of the Government (with or without the knowledge or consent of the surety) in aspect of or in relation to the several obligations and conditions to be performed or discharged by the student provided that the government may without prejudice to any other rights or remedies of the Government to recover such amounts due here under from the student or father/ natural guardian of a minor student or from the surety as an arrears of land revenue and provided further that this bond shall in all respect be governed by the laws of India. The expenses of stamp duty on the bond if any, shall be borne by the Government."
6. The grievance of the writapplicants is that they are being forced on the strength of the various orders passed by the respondents to render their services in the Government Hospitals with respect to the Covid19 pandemic. According to the writapplicants, if the authorities want to enforce the bond, Page 8 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT they may do so. The writapplicants are ready to deposit Rs.5 lakh with the treasury of the State. However, they should not be forced or it should not be made mandatory for them to render their services as there is no sufficient time for them to prepare for the NEETPG Entrance Exam.
7. In such circumstances referred to above, the 307 doctors are here before us with the present writapplication.
8. Mr.Anshin Desai, the learned senior advocate, assisted by Mr.Digant B.Kakkad, the learned counsel appearing for the writ applicants, vehemently submitted that the bond executed by the writapplicants is within the realm of contract. The consequences of nonperformance or breach thereof may result into appropriate steps being taken in accordance with the terms of the contract, but there is no provision in law, by which the writapplicants can be compelled to serve in the hospitals as per the impugned orders. In other words, the argument of Mr.Desai is that if the writapplicants decline to render their services, at the most, the respondents may proceed to recover the amount of Rs.5 lakh by enforcing the bond and solvency certificate. Even if the authorities concerned are not inclined to enforce the bond, they cannot force the writapplicants to serve in the hospitals.
9. Mr.Desai would submit that Section 14 of the Specific Relief Act bars the performance of service contract, i.e. a personal service contract cannot be enforced.
Page 9 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT10. Mr.Desai next contended that the Notification dated 13 th March 2020 issued by the Government of Gujarat, Health and Family Welfare Department, in exercise of powers conferred under Sections 2, 3 and 4 of the Epidemic Disease Act, 1897, framing regulations called "the Gujarat Epidemic Diseases, COVID19 Regulations, 2020" is erroneous in law and without jurisdiction.
11. Mr.Desai would submit that it is under such regulations framed by the State Government that the writapplicants are being asked to render their services compulsorily in the Government Hospitals. According to Mr.Desai, Sections 2, 3 and 4 of the Act, 1897, do not confer any such power upon the State Government to frame such regulations. In other words, by virtue of the provisions of the Act, 1897, the Government cannot make it compulsory for the doctors to render their services in times like the present Covid19 pandemic.
12. Mr.Desai next submitted that why only the doctors who have passed and cleared the M.B.B.S. from the Government Hospitals are being asked to render their services compulsorily and why the doctors who have passed and cleared the M.B.B.S. from private colleges are not being asked to render their services compulsorily. They should also be asked to render their services compulsorily.
13. In the last, Mr.Desai submitted that there is lot of harassment to the writapplicants at the end of the police. He Page 10 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT submits that the students are being summoned at the police station and are being questioned as to why they are declining to render their services. According to Mr.Desai, why should the police involve itself into these type of matters. He submits that all the writapplicants hail from respectable strata of society and they are not criminals to be dealt with by the police only because they have declined to render their services in these times of Covid19 pandemic.
14. Mr.Desai laid much emphasis on the fact that the conditions have drastically improved. The Covid19 pandemic cases are on a decline. The beds in the Designated Covid Hospitals are empty. The beds at the Government Hospitals are also empty. In such circumstances, why the writapplicants are being disturbed and not permitted to prepare themselves for the forthcoming NEETPG Exam.
15. In such circumstances referred to above, Mr.Desai prays that there being merit in his writapplication, the same be allowed and the reliefs prayed for be granted.
16. On the other hand, this writapplication has been vehemently opposed by Mr.Kamal B.Trivedi, the learned Advocate General, assisted by Ms.Manisha Lavkumar Shah, the learned Government Pleader, appearing for the respondents.
17. Mr.Trivedi would submit that the issues raised in the Page 11 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT present writapplication are the very same issues as were raised in the Special Civil Application No.9139 of 2020, decided by this Court vide judgment and order dated 19 th August 2020. Mr.Trivedi would submit that after due consideration of all the relevant aspects of the matter including the Notification issued by the State Government dated 13 th March 2020 in exercise of the powers conferred under Sections 2, 3 and 4 of the Act, 1897, this Court declined to grant any relief to the identically situated doctors and rejected the writapplication.
18. Mr.Trivedi would submit that the Covid19 pandemic is not over. The battle is yet to be completely won, and in such circumstances, the services of the writapplicants are very much required as on date. It would be incorrect to say that as the cases of the Covid19 in the State are on a decline, the writ applicants should not be asked to render their services. Mr.Trivedi, the learned Advocate General, assures this Court that he would see to it that there is no undue harassment at the end of the police to the writapplicants. The police will involve itself only if some legal proceedings are initiated by the concerned authorities in accordance with law. However, the police shall not pressurize or create fear in the minds of the writ applicants in any manner. In such circumstances referred to above, Mr.Trivedi prays that there being no merit in this writ application, the same be rejected.
19. We may quote few relevant observations made by this Court in the judgment rendered in the case of Patel Shreyaskumar Kamleshkumar (supra) thus :
Page 12 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT"48. In short, without going into any further controversy, we are of the opinion that 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. The intention in issuing the impugned resolution has a direct nexus with public interest. In such circumstances, such a decision of the State Government is not liable to be interfered with as the power of the State cannot be abridged on the basis of an individual interest. In general, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India would not exercise its power of judicial review to interfere with a policy made by the Government in exercise of its power under Article 162 of the Constitution of India, particularly where it involves public health and safety. (See Shri Sitaram Sugar Company Limited and another v. Union of India and others, AIR 1990 SC 1277)
49. The modern phenomenon in administrative process is an emergence of the institution of directions. Directions are less formal than rules. Administrative authorities issue directions for a variety of purposes and in a variety of ways, for example, through letters, circulars, instructions, orders, memoranda, directives, bulletins, guidelines, manuals, Page 13 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT pamphlets, public notices, press notes, clarifications, etc. Directions may be specific being applicable to a specific person or matter or may be general in nature laying down some general norm or principle or policy, practice or procedure to be followed in all similar cases. The directions are part and parcel of the internal administrative procedure of a Government department. Directions are issued under the Government's administrative and not legislative power. Articles 73(1) and 162 confer administrative power on the Central and the State Government respectively. For example, Article 73(1) says that subject to the provisions of the Constitution, the executive power of the Union extends to matters with respect to which the Parliament has power to make laws. Similarly, under Article 162, the executive power of the State extends to matters with respect to which a State Legislature has power to make laws. The administrative power of a Government is thus coextensive with its legislative power.
50. A decision of a Government in exercise of its executive power is reviewable by this Court under Article 226 of the Constitution. But, the extent of judicial review is limited to examining, whether the Government has acted bonafide and on relevant considerations only and the same cannot be examined as if it is an appeal. When the State is badly in need of the services of the final year M.B.B.S. students to meet with the emergent situation of the Covid19 pandemic, then in such circumstances, an order can be validly and Page 14 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT legally made by the Government even without furnishing reasons and the court may not even compel the Government to give reasons. But, when the Government itself chooses to give reasons, though it is not bound to give reasons, this Court can examine the validity of such reasons to the extent whether they are relevant to the subject and no more. If any of the reasons given by the Government is found to be irrelevant, the court can only strike down the order but cannot substitute its own reasons or uphold the order as it can do in cases of judicial or quasijudicial orders.
51. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Asif Hameed and others v. State of Jammu and Kashmir and others, reported in AIR 1989 SC 1899, wherein in paragraph 19, the following has been observed :
"19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strikedown the action. While doing so the court must remain within its selfimposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit Page 15 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
52. There need not be any debate on the principle of law that the executive Governments are bound to conform not only to the law of the land but also to the provisions of the Constitution. Even the Legislature cannot override the fundamental rights guaranteed by it to the citizens. Even if the acts of the executive are deemed to be sanctioned by the Legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the writapplicants guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights or any other legal rights of the writapplicants have been infringed thereby, the latter would obviously have no right to complain under Article 226 of the Constitution. The material question for consideration therefore is: What fundamental rights of the petitioners, if any, have been violated by the impugned resolution and acts of the executive Government of Gujarat undertaken by them in larger public interest keeping in mind the current Covid19 pandemic situation ?
53. In the aforesaid context, we have to our advantage a Page 16 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT Constitution Bench decision of the Supreme Court in the case of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, reported in AIR 1955 SC 549, wherein the Supreme Court has explained Article 162 of the Constitution of India.
54. In the case before the Supreme Court, a petition under Article 32 of the Constitution of India was preferred by six individuals who were carrying on the business of preparing, printing, publishing and selling textbooks for different classes in the schools of Punjab. They alleged that the Education Department of the Punjab Government had, in pursuance to their policy of nationalization of textbooks, issued a series of notifications regarding printing, publication and sale of those textbooks which could be said to have placed unwarrantable restrictions upon the rights of the petitioners to carry on their business. It was argued before the Supreme Court that no restrictions could have been imposed upon the petitioners' right to carry on the trade guaranteed under Article 19(1)(g) of the Constitution of India by mere executive orders without proper legislation and that legislation, if any, must conform to the requirement of clause (6) of Article 19 of the Constitution of India. Accordingly, it was prayed before the Supreme Court to issue writs in the nature of mandamus directing the Punjab Government to withdraw the notifications which had affected their rights. The Supreme Court, while dismissing the petition, observed thus :
Page 17 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT"6. The first point raised by Mr.Pathak, in substance, amounts to this, that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competition with private agencies without the sanction of the legislature. It is not argued that the functions of a modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community. What Mr.Pathak says, however, is, that as our Constitution clearly recognises a division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the function of the executive cannot but be to execute the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out. The learned counsel has, in support of this contention, placed considerable reliance upon Articles 73 and 162 of our Constitution and also upon certain decided authorities of the Australian High Court to which we shall presently refer.
7. Article 73 of the Constitution relates to the Page 18 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these Articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down :
"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws :
Provided that in any matter with respect to which the Legislature of a State and 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 this Constitution or by any law made by Parliament upon the Union or authorities thereof."
8. Thus under this Article the executive authority of the State is executive in respect to matters enumerated Page 19 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these Articles contain any definition as to what the executive function is and what activities would legitimately come 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, as Mr.Pathak seems to suggest, 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 to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Page 20 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr.Pathak's contention.
14. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does Page 21 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.
15. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
21. These discussions however are to some extent academic and are not sufficient by themselves to dispose of the petitioners' case. As we have said Page 22 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution. The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under Article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed. The material question for consideration therefore is : What fundamental rights of the petitioners, if any, have been violated by the notifications and acts of the executive Government of Punjab undertaken by them in furtherance of their policy of nationalisation of the text books for the school students ?"
55. We pose the very same question as posed by the Supreme Court in the above referred judgment : "What fundamental rights or any other legal rights of the writ Page 23 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT applicants could be said to have been violated by the impugned resolution and acts of the executive Government of Gujarat ?" In our view, none.
56. Thus, by reasons of executive instructions issued under Article 162 of the Constitution of India, the State is entitled, in absence of any legislation operating in the field, to issue such directions which are permissible in terms of the above referred two Entries in the State List and the Concurrent List of the Seventh Schedule of the Constitution of India.
57. In Bishambhar Dayal Chandra Mohan v. State of U.P., reported in AIR 1982 SC 32, it was held :
"...The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab, 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 connotes the residue Page 24 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT of governmental functions that remain after legislative and judicial functions are taken away"."
58. It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of the 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.
59. The aforesaid situation also takes care of the submission of Mr.Yagnik that the State Government has not been able to show any source of power to issue the impugned Government Resolution dated 17th July 2020.
60. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Pt.Parmanand Katara v. Union of India and others, reported in (1989)4 SCC 286, Page 25 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT more particularly the observations as contained in paragraphs 8 and 9 respectively, which read thus :
"8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, dutybound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/ delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. On this basis, we have not issued, notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law Page 26 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT of the land by proceeding to treat the injured victim on his appearance before Him either by himself or being carried by others. We must make it clear that zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative. We order accordingly.
9. We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this Court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio. The Registry shall forward adequate number of copies of this judgment to every High Court so that without delay the respective High Courts can forward them to every Sessions Judge within their respective jurisdictions and the Sessions Judges in their turn shall give due publicity to the same within their jurisdictions. The Medical Council of India shall forward copies of this judgment to every medical college affiliated to it. Copies of the judgment shall be forwarded to every State Government with a Page 27 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT direction that wide publicity should be given about the relevant aspects so that every practising doctor would soon become aware of the position."
61. We may also refer to a recent pronouncement of the Supreme Court in the case of Association of Medical Superspeciality Aspirants and Residents and others v. Union of India and others, reported in (2019)8 SCC 607, more particularly the observations made in paragraphs 17, 18, 22 and 23 to 28, which read thus :
"17. Schedule VII List I Entry 66 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 coextensive with that of the Page 28 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT 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.
18. The Appellants are aggrieved by the decision of the State Governments imposing conditions for their admission in the postgraduate courses and super speciality courses. According to them, the State Governments have understood the decision of this Court in Harsh Pratap Sisodia (supra) 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 Page 29 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT 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 postgraduate courses and super speciality is on the basis of relevant material. Huge infrastructure has to be developed and maintained for running medical colleges with postgraduate 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.
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 Page 30 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT 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. 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.
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 MANU/SC/0058/1980 : (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 Page 31 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT 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 priorityperhaps 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.
26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. 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 Page 32 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT 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.
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.
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 Page 33 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT their social and economic freedoms."
62. We are at pains to note one very unusual argument of Mr.Yagnik. Mr.Yagnik tried to distinguish the above referred two decisions of the Supreme Court on the premise that those decisions talk about doctors; whereas, his clients, as on date, are not doctors but they are final year M.B.B.S. students. The students are the future of this country. Being students they owe lot of responsibilities and obligations. In the near future they are going to be the members of the medical fraternity. Therefore, it hardly makes any difference whether as on date they are fullfledged doctors or final year M.B.B.S. students. We understand this much that being the final year M.B.B.S. students, they are now well trained in all faculties of Medicine. They cannot say that they would not do a particular type of work. We are asking a question to ourselves. Are the writapplicants before us frightened to render their services or they want to shirk from their responsibility to perform the duties in public interest ? Whatever may be the reason, ultimately, by this litigation they have established that whatever may happen to the society at large, they would like to remain safe."
20. We are not impressed with the submission of Mr.Desai that as the Covid19 pandemic cases are on a decline, the writ applicants may be relieved of their duty of rendering their services at the Government Hospitals. Such complacency or such a complacent attitude may lead to further trouble.
Page 34 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT21. We may refer to one article reported by the Indian Express dated 25th January 2021. The Chief of CSIR, namely Dr.Shekhar Mande, was interviewed on the subject about "guarded optimism" over drop in Covid19 cases. According to Dr.Mande, even after the present pandemic is over, there is a possibility of another one might still be around the corner and we should be prepared for that. A specific question was put to Dr.Mande. The question reads as under :
"In your assessment, is the Covid19 graph in India in an irreversible decline, or is there still a fear of a second wave ? Also, can you tell us a little bit about the different Covid19 strains that have emerged ?"
22. The reply is as under :
"Are we over the pandemic in India? There is a very guarded optimism about it. The number of cases is going down. It's hovering between 16,00020,000 cases per day in India, compared to about 2,20,0002,40,000 per day in the U.S. But we are guarded, because the pandemic isn't over. If we let our guard down, there is every possibility of a second wave. So, we must be very, very careful when we say that the number of cases have gone down. Compared to other more developed nations, the defining feature in India has been the early lockdown. It gave us the opportunity to tell people about the dangers of the pandemic, and to prepare to handle the pandemic as well."Page 35 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT
23. We take this opportunity of reminding one and all that the ensuing election to the Municipal Corporations, Municipalities & Panchayats and the carefree attitude of the people at large has once again pushed us almost to the edge of a cliff. In such circumstances, it is always prudent and advisable to take a step backward. Any complacency or reckless attitude from here onwards may once again push us to the horrifying days of lockdown. In this regard, we sound a note of caution to the State Government as well as to the people at large.
24. So far as the issue of bond is concerned, we do not intend to go into the same. In what manner the bond is to be enforced or executed is for the concerned authority to decide. However, we are not impressed with the submission of the learned senior counsel that once the writapplicants say that the amount of bond may be recovered they would stand relieved of all other obligations and, therefore, they should not be asked to render their services at the Government Hospitals with regard to the Covid19 pandemic.
25. Even while deciding the Special Civil Application No.9139 of 2020, we had observed that this is not the time to adjudicate the legal issues with regard to the applicability of the Epidemic Disease Act, 1897 and the Disaster Management Act, 2005. However, we take this opportunity of observing that the Act is more than a century old. It was enacted when the organizations like the World Health Organization and U.N. were not even established. In India, there are several laws enacted by the Page 36 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT Parliament on public health which are not addressed under one single enactment or law. It is the need of the hour for the Legislature to amend the century old law in order to be ready for any kind of epidemic.
26. As regards the grievance of the writapplicants that they are being harassed by the police, we may only say that the police shall, in no manner, summon the writapplicants at the police station. The police shall not cause any harassment in the form of threats, etc. to the writapplicants. The role of police will come into play once appropriate legal proceedings are initiated by the concerned authority in accordance with law. If the writ applicants do not intend to render their services as called upon by virtue of the various orders, then what follows next are the legal consequences of the same. It is at that point of time that the police may perhaps have to play its own role in accordance with law.
27. Before we close this litigation, we once again make a humble request to the writapplicants to rise to the occasion and render their services. We do not intend to say that at the cost of preparing themselves for the NEETPG Exam they should render their services. A balance can always be tilted in such a scenario. Some modalities can be worked out, by which the writ applicants can render their services for a reasonable period of time, and at the same time, they can also prepare themselves for the forthcoming NEETPG Exam.
28. We direct the respondents to look into this issue and try to Page 37 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022 C/SCA/16026/2020 CAV JUDGMENT work out the modalities striking the balance accordingly.
29. For the foregoing reasons, we decline to interfere in this writapplication and dispose of the same with the necessary observations.
(VIKRAM NATH, CJ.) (J. B. PARDIWALA, J.) /MOINUDDIN Page 38 of 38 Downloaded on : Thu Jan 13 01:17:34 IST 2022