Mr. R. Subramanian, J.full orderCompulsory service – Merely because, petitioners, had secured a certain percentage of marks, were allotted to the third respondent College in the general counselling held by the State Government, they do not form a separate class.
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Dr. S. Praveen Kumar v. Union of India, (Madras) : Law Finder Doc Id # 1735100
MADRAS HIGH COURT
Before:- Mr. R. Subramanian, J.
W.P. Nos. 7856 to 7858, 8363 of 2020 8433, 8434, 8435, 8436, 8437, 8440 and 8306, 8438 and 8439 of 2020 and connected Miscellaneous Petitions. D/d. 15.7.2020.
Dr. S. Praveen Kumar and other – Petitioners
Union of India, Rep by its Principal Secretary, Ministry of Heath and Family Welfare, Nirman Bhavan, New Delhi – 110 001 and other – Respondents
For the Petitioner (in all the petitions):- Mr.Haja Mohideen Gisthi, for Mr. T.K.S. Gandhi, Advocates.
For the Respondent No. 1 :- Mr. R. Vasudevan, Advocate.
For the Respondent Nos. 2 and 3 :- Mr. Mr. TNC Kaushik, Advocate.
For the Respondent No. 4 :- Mr. G. Sankaran, Advocate.
For the Respondent No. 5 :- Mr. Abdul Saleem, Advocate.
For the Respondent No. 6 :- Mr. V.P. Raman, Advocate.
Compulsory service – Merely because, petitioners, had secured a certain percentage of marks, were allotted to the third respondent College in the general counselling held by the State Government, they do not form a separate class.
Service Law – Validity of the Bonds that were extracted from the petitioners or their guardians at the time of admission into MBBS course – Compulsory service – Service by doctors – Requirement of execution of bond by students allotted respondent college alone clearly violates Article 14 – Merely because, the petitioners, who had secured a certain percentage of marks, were allotted to the third respondent College in the general counselling held by the State Government, they do not form a separate class – Court unable to subscribe to the views of another Hon’ble Judge be revisited by a larger bench.
[Paras 18 to 20]
Mr. R. Subramanian, J. – This matter is taken up for final hearing through Video-Conferencing with the consent of all the counsel.
2. The core question that arises in all these Writ Petitions is the validity of the Bonds that were extracted from the petitioners or their guardians at the time of admission into MBBS course in the third respondent college run by the second respondent viz., The Employees State Insurance Corporation. Since all the petitioners are similarly placed and their grievances are common, these Writ Petitions were taken up for hearing together and are disposed of by a common order.
3. It is not in dispute that the petitioners were all allotted Government seats in the third respondent College during the Academic Year 2013 – 2014, for the 4 ½ years under Graduate course in Medicine and one year compulsory intern ship program. The general prospectus issued by the State Government at the time of counselling did not include the third respondent College which was established by the second respondent under Section 59B of the Employees State Insurance Corporation Act, introduced in 2010.
4. The petitioners, who appeared for counselling were allotted seats in the third respondent College on the basis of merit and only when they were to join the College, they were informed that they will have to execute a bond undertaking to serve for 5 years in any one of the Hospitals run by the second respondent in India or in default to pay a sum of Rs.7,50,000/- with interest at 15% per annum. They were also informed that in the event of their refusal to execute such a bond, the allotments made to them would be cancelled. According to the petitioners, left without any option, they had executed the bonds and had joined the institution. They have also completed the course successfully. As per the bond conditions, the second respondent had given them appointment orders directing them to serve in various Hospitals run by the second respondent Corporation throughout the country.
5. It is the contention of the petitioners that they did not wilfully opt for the third respondent College and they were allotted Government seats in the third respondent College through the general counselling and therefore, they cannot be treated differently from the other students, who had been offered Government seats in various Government Colleges as well as Private Medical Colleges in Tamil Nadu. The petitioners would challenge the orders of appointment and also seek a Writ of Mandamus forbearing the second and third respondents from enforcing the bond that was obtained by them, according to the petitioners, under duress and coercion.
6. It is the further case of the petitioners that no other Medical College or University in India, except those in certain Hilly areas of Jammu and Kashmir and Uttarkhand, take a bond for service for Under Graduate Courses in Medicine. The petitioners would also aver that most of them have qualified for admission in Post Graduate Courses in medicine by appearing for the Post Graduate NEET examinations conducted for the year 2020. In the circumstances, if they are compelled to work for the second respondent they would lose the opportunity of pursuing Higher Education.
7. The claim of the petitioners is resisted by the second and third respondents mainly contending that the third respondent is not an Aided Medical College and being a self-financing Institution, it is entitled to have its own conditions for admission to its Under Graduate Medical Program. It is the further contention that having accepted the conditions at the time of joining and having executed the bonds, the petitioners cannot now seek to resile from their obligation under the bonds executed by them or their guardians, as the case may be. The respondents 2 and 3 would also rely upon the pronouncement of the Hon’ble Supreme Court in WP (C) No.376 of 2018 etc. batch, dated 19.08.2019, and the judgment of the Hon’ble Dr. Justice G.Jayachandran, in WP No.21173 of 2019 dated 04.11.2019.
8. The learned counsel for the petitioners would however seek to distinguish the Judgment of the Hon’ble Supreme Court, referred to above, on the ground that the judgment is concerned with Post Graduate Medical Education, where the uniform practice of all State Governments is to take a bond from the Post Graduate students, who are admitted to Post Graduate Courses in Medicine in Government Medical Colleges to serve the respective State Governments for the period of two years or to pay cash compensation.
9. The learned counsel for the petitioners would also draw my attention to the judgment of the learned Single Judge of the Karnataka High Court in WP Nos.29365 to 29368 of 2018 etc., batch dated 14.02.2020. According to the learned counsel for the petitioners, the Hon’ble Single Judge of this Court, who decided WP No.21173 of 2019 had only relied upon the judgment of the Hon’ble Supreme Court, referred to supra, without adverting to the distinction pointed out by him that the case before the Hon’ble Supreme Court related to Post Graduate Medical Education and not Under Graduate Medical Education. He would also draw my attention to specific references made by the Hon’ble Supreme Court in the said judgment with reference to the expenses incurred by the State Governments in providing Post Graduate Medical Education to justify the condition relating to execution of bond for compulsory service or for payment of compensation in lieu of such compulsory service.
10. I have considered the rival submissions.
11. The fact that the petitioners were all candidates, who came under the merit category and were admitted to the seats under Government quota in the third respondent College is not disputed. It is Fundamental Principle of Law that a class of persons, who are equally placed, must be treated equally. There cannot be a different treatment for persons belonging to the same group or same class which will be a violation of Article 14 of the Constitution of India. Once the fact that the petitioners are all meritorious candidates, who were allotted seats under the State quota, is admitted then it should be ensured that they are treated on par with candidates who have got admission in other State run or Private Medical Colleges/ Universities in the state. Just because they were allotted to the third respondent College during counselling, they cannot be treated differently.
12. No doubt the condition relating to the execution of the bond was incorporated in the prospectus issued by the third respondent College, but it is an admitted case that the same was not made part of the guidelines for admission issued by the State Government at the time of counselling. It is also seen from the fees structure that the third respondent College has not given any particular concession to the petitioners. While the third respondent College collects 26,000/- per year as fee, the other State run Medical Colleges and Private Medical Colleges in the State collect Rs.13,610/- per year on an average, and the premier Medical College in Tamil Nadu viz., The Madras Medical College collects a sum of Rs.20,500/- per year as fees, from its under graduate students.
13. It is also common knowledge that even Private Medical Colleges are allowed to collect only the fee that is prescribed by the State Government in respect of students who are allotted to them under the 50% State quota. It is also not in dispute though the third respondent College had a quota for the children of members of the Employees State Insurance Schemes, the same was struck down by this Court and the Appeal against the same is pending.
14. Therefore, the question that is to be considered in these Writ Petitions is, as to whether, the stipulation that students who are allotted to the third respondent College during the State counselling under the State quota could be compelled to execute a bond either for service or for compensation in lieu of service. As already pointed out one Hon’ble Judge of this Court (Hon’ble Dr. Justice G.Jayachandran), has upheld the claim of the 3rd respondent College in WP No.21173 of 2019 vide order dated 04.112019. The Hon’ble Judge had solely relied upon the judgment of the Hon’ble Supreme Court in WP (C) No.376 of 2018 etc. batch, dated 19.08.2019. Unfortunately the distinction on facts was not highlighted before the Hon’ble Judge, when the matter was argued before him. The Hon’ble Supreme Court in its Judgment in WP (C) No.376 of 2018 etc. batch was concerned with a stipulation of execution of compulsory bonds imposed by various State Governments in respect of Post Graduate courses in Medicine and not Under Graduate courses. The Hon’ble Supreme Court had also while upholding the right of the State Governments to impose conditions as to the execution of compulsory bonds has suggested that the Medical Council of India should evolve a uniform policy regarding compulsory services to be rendered by Doctors, who are trained in Government Institutions.
15. The Hon’ble Supreme Court has also pointed out that the conditions regarding execution of bonds cannot be considered to be a restraint on trade or profession. The Hon’ble Supreme Court has also noted the difference between students admitted under the All India Quota and the students admitted under the State quota. It is also seen that insofar as admissions to Post Graduate courses in Medical Education is concerned, Clause 12 of the Information Bulletin issued by the respective State Governments very clearly stipulated that the students, who are admitted to Post Graduate Medical Courses must execute a bond for serving the respective State Governments for a particular number of years and in default they must pay a stipulated amount towards damages. This is done taking into account the high cost involved in imparting Post Graduate Medical Education. There is nothing in the Information Bulletin issued by the State Governments stipulating execution of bonds for Under Graduate Courses in Medicine.
16. It is not in dispute that the information Bulletin issued by the State of Tamil Nadu, during the year 2013, did not contain any stipulation regarding the execution of bonds by the students, who are offered admission to under Graduate courses in Medicine in Government or Private Medical Colleges under the 50% state quota, as the case may be. This being so, whether the third respondent College could insist upon or enforce bonds obtained under duress and coercion assumes significance. Adverting to the decision of the Hon’ble Single Judge of the Karnataka High Court, which is heavily relied upon by the petitioners, the Hon’ble Single Judge had discussed the issue relating to execution of bonds at length. He has also noted that the Medical Council of India had made a statement that the ESI Corporation viz., the second respondent has no right or competence for prescribing 5 years compulsory services on the petitioners, who procured allotment by appearing for the entrance examination conducted by the Karnataka State Government.
17. The case of the petitioners herein is no way different. Even here Mr.V.P.Raman, learned counsel appearing for the Medical Council of India, would submit that the stand of the Medical Council of India is the same as it had projected before the Hon’ble Karnataka High Court. I had already pointed out that there is no concession that is offered to the petitioners in the fee payable merely because they agreed to serve the second respondent Corporation for a particular period of time. Of course, the third respondent College has been established by the second respondent Corporation under the powers conferred on it by Section 59B of the ESI Corporation Act. The said Section does not empower the Corporation to impose a condition regarding compulsory service. It is common knowledge that the ESI Corporation is a statutory Corporation which offers medical service to the members of the Employees State Insurance Schemes, upon collection of a premium therefore, the second respondent does not offer any free medical aid also. Moreover, the second respondent being a statutory Corporation coming within Article 12 of the Constitution of India is bound to act reasonably and all its acts must be sanctioned by some statutory power.
18. I am unable to find any provision under the Employees State Insurance Act and Rules framed there under, which enable the second respondent to extract such bonds from the students, who are allotted to the third respondent College through general counselling done by the State Government based on merit. I also find that the stipulation violates Article 14 of the Constitution of India and amounts to an unreasonable demand by the third respondent.
19. Yet another fundamental question that would arise in these cases is to the competence of the second and third respondents to super add a condition to the conditions imposed by the State Government to admit students, who are allotted to it under the State quota. In the scheme of admission to the Medical Colleges, each College which is run in a particular State and affiliated to a particular State University is bound to surrender a certain number of seats to the State quota and those seats could be filled up only by students who participate in the general counselling, according to the order of merit. Merely because, the petitioners, who had secured a certain percentage of marks, were allotted to the third respondent College in the general counselling held by the State Government, they do not form a separate class. They are still students allotted by the State Government to the seats surrendered by the third respondent College to the State quota. Therefore, there is an obligation on the part of the State to ensure that these students are treated equally along with the other students, who are allotted to various other medical colleges in the State under the State quota. To this extent, in my considered opinion, the requirement of execution of bond by the students who are allotted to the third respondent College alone clearly violates the Principles of Equality enshrined under Article 14 of the Constitution of India.
20. With great respect, I am unable to subscribe to the views of the Hon’ble Dr. Justice G.Jayachandran, who decided WP No. No.21173 of 2019, dated 04.11.2019 solely based on the judgment of the Hon’ble Supreme Court in WP (C) No.376 of 2018 etc. batch, dated 19.08.2019, which related to Post Graduate Medical Education and the treatment was uniform for all students, who had undertaken Post Graduate Medical Education in Government run Medical Colleges. It is common knowledge that students who undergo Post Graduate Medical Education in Private or Deemed Universities are not required to execute a bond for serving the University or the Private Institution, as the case may be, under their Management quota.
21. I am therefore of the considered opinion that the entire matter has to be revisited by a Larger Bench. Since I am not agreeing with the view of Hon’ble Dr. Justice G.Jayachandran, expressed in WP No. No.21173 of 2019, dated 04.11.2019 I frame the following questions for determination by a Larger Bench:
1) Whether the second respondent Corporation has the power to incorporate or super add an additional condition for admitting students, who are allotted to it for admission under the State quota.
2) Whether the stipulation requiring the students, who are allotted under the State quota to execute a bond, is in violation of Article 14 of the Constitution of India.
3) Whether the second and third respondents, who do not offer any concessional fee to the students could enforce the bonds executed under duress.
22. I therefore, direct the Registry to place the matter before the Hon’ble the Chief Justice, for constitution of a Larger Bench for hearing these cases.