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TMI Blog2019 (8) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... nt - HELD THAT:- Entry 66 of List I of the 7th Schedule to the Constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7th Schedule deals with education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds. Therefore, the States are free to legislate on the subject matter of medical bonds. Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature - 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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Harsh Parashar, AOR Mr. Krishnamohan K., AOR Mr. Dania Nayyar, Adv. Mr. Ankit Goel, AOR Ms. Ankita Prakash, Adv. Mr. N. Gukato Zhimomi, Adv. Ms. Radhika Gautam, AOR For the Respondent : Mr. K.M. Natraj, ASG Mr. Rajan Kumar Churasia, Adv. Mr. Sanjay Kumar Tyagi, Adv. Ms. Rekha Pandey, Adv. Mr. G.S. Makker, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Gurmeet Singh Makker, AOR Ms. Madhumita Bhattacharjee, AOR Mr. Gaurav Sharma, AOR Mr. Prateek Bhatia,Adv. Mr. Dhawal Mohan,Adv. Mr. Prasanna Mohan,Adv. Mr. Suhaan Mukerji, Adv. Ms. Astha Sharma, Adv. Mr. Amit Verma, Adv. Mr. Abhishek Manchanda, Adv. Ms. Kajal Dalal, Adv. Mr. Prastut Dalvi, Adv. Ms. Dimple Nagpal, Adv. Mr. Naveen Kumar, Adv. M/S. Plr Chambers And Co., AOR Ms. Ruchira Gupta, Adv. Ms. Anurag Sharma, Adv. Mr. Shishir Deshpande, AOR Mr. Aniruddha P. Mayee, AOR Ms. Deepanwita Priyanka, Adv. Mr. A. Rajarajan, Adv. Mr. Abhinav Mukerji, AOR Mrs.Bihu Sharma, Adv. Ms. Purnima Krishna, Adv. Mr. Siddharth Garg, Adv. Mr. G. Prakash, AOR Mr. Jishnu M.L., Adv. Mr. Shibashish Misra, AOR Dr. Manish Singhvi, Sr. Adv. Mr. Satyendra Kumar, Adv. Mr. Shailja Nanda Mishra, Adv. Mr. Harsha Vinoy, Adv. Mr. Milind Kumar, AOR Ms. Ruchi Kohli, AOR Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutions in West Bengal. Execution of bond at the time of admission to post-graduate courses and super Speciality courses, providing that they shall serve the State Government for a period of one year on successful completion of the courses, failing which they will be liable to recompense the State Government a penalty amount of Rs.10 Lakhs, was made compulsory. Partially modifying the Notification dated 31.07.2013, the Government of West Bengal issued a Notification on 10.06.2014 by which the condition pertaining to one year service was increased to two years. The compensation in case of failure by the Doctors to serve in the State was enhanced to Rs. 30 Lakhs. 139 Doctors who have acquired Degree of Bachelor of Medicine and Bachelor of Surgery from various universities in the country challenged the aforementioned Notifications in the High Court. The learned Single Judge of the Calcutta High Court by a judgment dated 03.11.2017 upheld the Notification dated 31.07.2013. However, the Notification dated 10.09.2014 was held to be arbitrary and unreasonable. Aggrieved by the judgment of the learned Single Judge, the State of West Bengal filed an appeal before the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent medical colleges in the State of West Bengal on the basis of their merit in the All India Post Graduate Medical Entrance Examination (AIPGMEE). According to them, additional eligibility conditions cannot be introduced by the State Government in respect of All India Quota candidates. Imposition of a condition of compulsory service infringes their fundamental rights under Articles 14, 19 and 21 of the Constitution of India. In any case, introduction of compulsory bonds can only be by way of legislation and not by an executive order. They relied on a judgment of this Court in Harsh Pratap Sisodia v. Union of India (1999) 2 SCC 575 to buttress their submission relating to the bar on the State in fixing addition eligibility criteria. In this connection, they placed reliance on an order passed by this Court in Anand Biji v. State of Kerala. 2001) 6 SCC 665 They further contended that the insistence of a condition to serve in the State compulsorily would result in reservations being made by the State, which would be contrary to the judgment of this Court in Dr. Pradeep Jain v. Union of India. (1984) 3 SCC 654 They further submitted that the service bonds executed by the Appellants fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such infirmity in the judgment and order impugned before us as would warrant interference by this Court? The first issue was answered in favour of the State by the Division Bench holding that the provisions of Article 166 (1) (2) were being complied with before the Notifications were issued. The Division Bench held that the Notifications issued by the State Government did not impinge on the freedom of the Appellants to practice any profession or to carry on any occupation, trade or business guaranteed by Article 19(1)(g) of the Constitution of India. Article 162 of the Constitution refers to the extent of the executive power of the State Government and that power is not restricted only to matters on which legislation has already been passed. The Division Bench observed that the State Government has the right to fill the vacuum which exists due to the absence of any legislation and which can be filled by the executive instructions in the form of circulars/notifications. The Division Bench was of the opinion that there is no fundamental right to pursue post-graduate medical education, especially in government colleges where higher education is subsidized. The Division Bench concurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted the obligation bond at the time of their admission. On completion of their courses, they filed a writ petition in the High Court questioning the bonds on several grounds. The points raised by them relating to the undertaking being vitiated by coercion and violation of Article 23 of the Constitution and other fundamental rights have been answered against them. The submission of the Appellants that they should be exempted from the bond obligations as they were admitted from the All India Quota was also rejected by the High Court. Kerala High Court: A Division Bench of the High Court of Kerala dealt with the issue pertaining to compulsory bonds and held that there is no restriction imposed on the medical students from practicing the profession. The restriction was only regarding their choice of place of practice for one year. After dealing with all the points pertaining to restriction from trade or profession and the public policy, Seshadri Naidu, J. speaking for the Court stated that those Appellants who were benefited by subsidised medical education must repay their debt/gratitude. High Court of Judicature at Bombay : Writ Petitions filed by the students of super speciality co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized in the best possible manner in places where there are facilities and they should not be wasted in rural areas. Their presence in institutions at the national level would be beneficial to the society apart from providing an opportunity to them to hone their skills. He stated that additional conditions in the nature of bonds cannot be imposed by the State Government which would disturb the balance stipulated by the Medical Council of India Regulations. He submitted that the conditions imposed by the State Government are onerous and he commended for our acceptance that a reasonable exit clause should exist. 7. Mr. Krishnamohan Menon, learned counsel appearing for the Appellants in SLP (Civil) No.2387 of 2019, SLP (C) No.10 of 2010 and SLP (C) No. 19100 of 2019 in the Appeals arising out of the judgment of the Calcutta High Court questioned the Notifications as being unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution. He urged that the notifications would not constitute law within the meaning of Article 13 of the Constitution. He submitted that the Appellants have freedom to carry on trade and profession guaranteed under Article 19(1)(g) of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of their admission to post-graduate courses to enable them to participate in the counselling for admissions into the super Speciality courses. 9. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the State of West Bengal submitted that the executive power of the State Government is co-extensive to the power of the State Legislature to legislate, as medical education falls under Entry 25 of List III of the 7th Schedule to the Constitution. Mr. Dwivedi posited that the State Government has a role to play in admissions unless the field is completely occupied by a Central Legislation. In support of the submission that the State has always the power to supplement and not supplant the provisions of a statute, he relied upon Ch. Tikaramji v. State of Uttar Pradesh AIR 1966 SC 676.and Modern Dental College and Research Centre v. State of Madhya Pradesh. (2016) 7 SCC 353 According to Mr. Dwivedi, the subject matter relating to compulsory bonds is not a subject matter of any legislation made by the Parliament. He further contended that in furtherance of the right to health which falls under Article 21 read with Article 14 of the Constitution, there is a duty cast on the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service bond is a part of the integral package for providing highly subsidized medical education at post-graduate level and that retention of the documents to ensure compliance with the conditions of the compulsory service bonds is permissible. 10. Mr. Atmaram Nadkarni, learned Additional Solicitor General appearing for the State of Goa provided information relating to the amounts spent on doctors receiving post-graduation education in the State of Goa. The State of Goa spends an amount of Rs.50 Lakhs for a student per annum for specialization. The amount of fee that is charged from each student is Rs.77,500/-. The students undergoing super Speciality courses are paid a monthly stipend of Rs. 86,927/- for the first year, Rs. 89,495/- for the second year and Rs. 92,191/- for the third year. The doctors who receive highly subsidized medical education are obligated to render public service and the State has a legitimate right to insist on the doctors serving the State for a short period of time. The bond condition in the State of Goa is that doctors who receive education in Government colleges should serve for three years in the State, in default of which they are liable to pay Rs.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the health need of the patients and the acute shortage of super specialists, the State Government decided to introduce the compulsory bond. The super specialists are posted only in the four super Speciality hospitals run by the Government. 14. Mr. Shibashish Misra, learned counsel appearing for the State of Orissa brought to our notice that all the 45 seats in the super Speciality courses in the State are filled up on the basis of merit in the All India Counselling. The fee charged in the Government colleges is Rs. 45,000/- per year and the stipend of Rs.56,826/- is paid to the doctors undergoing super Speciality courses. There is serious shortage of super Speciality doctors in the State and the Government s decision to introduce the bond system is in public interest. 15. Mr. Balaji Srinivasan, learned Additional Advocate General appearing for the State of Tamil Nadu stated that there are 334 super Speciality seats in 24 Government medical colleges run by the State Government. The Government is charging only Rs.30,000/- per annum from the doctors undergoing super Speciality courses. An amount of Rs.21 Lakhs is spent on each post-graduate student by the Government. Earlier, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Arbitrariness 18. The Appellants are aggrieved by the decision of the State Governments imposing conditions for their admission in the post-graduate courses and super Speciality courses. According to them, the State Governments have understood the decision of this Court in Harsh Pratap Sisodia (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 as arbitrary. This Court in Harsh Pratap Sisodia (supra) was concerned with the additional eligibility criteria being introduced by the State Governments for the 15% All India Quota students. The decision taken by the State Governments to impose a condition of compulsory bond for admission to post-graduate courses and super Speciality is on the basis of relevant material. Huge infrastructure has to be developed and maintained for running medical colleges with post-graduate and super Speciality courses. The amount of fees charged from the students is meagre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs. Article 19: 20. According to the Appellants, the right to carry on their profession which is guaranteed by Article 19(1)(g) is violated by the compulsory bonds. They contend that the compulsory bonds place a restriction on their right to carry on their profession on completion of their course. It is also submitted that any restriction on their right to carry on their profession by the State Government can be made only by a law as per Article 19(6) of the Constitution. Consequently, the Notifications that were issued by the State Governments fall foul of Article 19(1)(g). The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate and super Speciality courses. Conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional obligation imposed on the State to improve public health. The Directive Principle provides as follows: 47. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 24. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India (1981) 1 SCC 246 it was held that maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. It was further observed in the above judgment that attending to public health, therefore, is of high priority- perhaps the one at the top. 25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening Government hospitals and health centers, but in order to make it meaningful, it has to be within the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The constitutional right to dignity is intended to ensure human beings political and civil liberties as well as their social and economic freedoms Aharon Barak, Human Dignity: the Constitutional Value and the Constitutional Right in Christopher McCrudden (ed.), Understanding Human Dignity, Proceedings of the British Academy, 192, pp. 361-80 at p. 367. 29. Dr. A. K. Sikri. J. in K.S. Puttaswamy v. Union of India K.S. Puttaswamy v. Union of India, (2019) 10 SCC 1 [AADHAAR 5JB]. observed that the realisation of intrinsic worth of every human being as a member of society is an indispensable condition, and has been recognised as an important human right. Truly speaking, this is directed towards the deprived, downtrodden and the have-nots. He further held that the humanistic concept of human dignity which is to be accorded to that particular segment of the society has to be kept in mind. Their human dignity is based on the socio-economic rights that are read into the fundamental rights. The importance of the communitarian approach along with the individualistic approach to human dignity was addressed by Dr. A.K. Sikri, J. in the above judgment. The learned Judge emphasised on the role ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizes the right of every person to the enjoyment of the highest attainable standard of physical and mental health. ICESCR mandates the States Parties to achieve full realization of the aforementioned right through the creation of conditions which would assure to all, medical service and medical attention in the event of sickness, inter alia. 33. The above discussion leads us to the conclusion that right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis- -vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected. Article 23 34. Article 23 reads as follows: 23. (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sugar Co. Ltd. Rae Bareli Anr. v. Badri Nath Dixit Ors. (1991) 3 SCC 54 Reference can be made to the judgment of Jessel, M.R., in Rigby v. Connol (1880) 14 Ch D 482, 487 wherein he held that: The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant . 38. Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act. IV. Restraint on Profession 39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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