“To Furnish bond/Bank Guarantee is not violative of Art.14 and 21 of the Constitution and it cannot be called as Burden on students coming from Economically Backward families” – Hon. Himachal Pradesh High Court (Division Bench).
Case Details :
Dr. Ramesh Kundal & ors. V/s. state of H.P. & ors, (CWP No.831/2017, Decided on 01/08/2017)
You may see the link to the Judgment :
http://164.100.138.228/casest/
Facts in Short :
1. The similar petitions were tagged together which challenged the Constitutional Validity of the provision of furnishing Bond/ Bank Guarantee in the Prospectus-cum-Application Form, issued by Department of Medical Education and Research, Himachal Pradesh, for admission to the Postgraduate Degree (MD/MS) Courses, in Indira Gandhi Medical College & Hospital, Shimla, and Dr. Rajindra Prasad Medical College and Hospital, Tanda, District Kangra.
2. As per the clause 4 of the said prospectus which dealt with BOND, BANK GUARANTEE, AND STIPEND, it was mandatory for all the candidates (All India quota and State Quota) to execute a Bond to serve the State for five years after completion of the PG course. If the bond is not executed, then stipend was also not to be paid. The Candidates were to also execute Bank Guarantee of Rs.10 lakhs (Rs.3 lakhs in 1st and 2 years and Rs.4 lakhs in 3rd year).
3. The Conditions of the Bond were deterrent. In case the students rescinding the Bond, the State Govt. was authorized to encash the Bank Guarantee and simultaneously to request MCI for cancellation of registration of their Degree. Similarly, if the student leaves the course in m-d-session, then he/she has to refund the entire stipend within a period of 1 month, else it would carry penal interest !!
Grounds of Challenge :
4. After the admission, but prior to start of the academic year, the petitioners challenged these provisions as Arbitrary, irrational and violative of Art.14 and 21 of the Indian Constitution as it only ensures admissions to economically affluent candidates and not to economically weaker persons and moreover no one would become a Doctor to serve the state on such condition. The Petitioners tried to rely on various judgments of other High Courts and in the Particularly judgment of the Gujarat High in Aswath Kumar R. v. State of Gujarat, (2000) 4 GLR 369.
Held :
1. The Division Bench (Hon. Sanjay Karol, the Acting Chief Justice and Hon. Ajay Mohan Goel ) dismissed all the petitions and upheld the provisions of Bond and Bank Guarantee as Constitutionally valid.
2. The Court said that the Petitioners did not raise any objection at the time of counseling or took their admission under protest. Having participated in the selection process, they are bound by the terms and conditions. Thus petitions must fail. But Court did not adopt such approach and dealt with from another angle.
3. While referring to the History of imposing such condition, it was pointed out by their Lordships that 90 % of the population in the State of Himachal Pradesh resides in difficult/remote areas. Providing medical health is a constitutional duty and obligation of the State. For such object, doctors, who are Specialists, are posted in remote areas. Previously if the doctors broke the Bond, the recovery of money was an issue, as there was no Bank Guarantee taken.
4. The Court further observed that candidates for such PG course are mature enough and are aware that they are being paid monthly stipend from Rs.35,000/- to Rs.45,000/- and the State is spending huge amounts on imparting education.
5. The amount of Bank Guarantee, which is to be executed in stages, is lesser than the stipend received by the Candidates.
6. While refuting the argument that the said prospectus is violative of Art.14 and Art.21, the court observed, simply because in the past such condition was not imposed, that fact itself cannot be a reason good enough not to review the Policy. In fact, it is only on the basis of previous experience that the Policy came to be altered and the Prospectus amended. Under the Constitution of India, State is to provide good health to all residents, in all areas, be it urban or rural. It is with this object, so to say to check the brain-drain, the condition stands imposed. The state does require more and more specialists to be posted in remote/rural areas.
7. A sum of 3,00,000/- is also not such that no doctor can afford. In our considered view, it does not cast any unnecessary burden upon the students belonging to economically backward families. In any case, none has approached the authorities, expressing such concern.
8. It relied upon the judgment of Apex Court in Centre for Public Interest Litigation v. Union of India and others, (2016) 6 SCC 408, wherein the Apex Court held as under: “22. Minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of deliberations of the technical experts in the fields inasmuch as Courts are not well-equipped to fathom into such domain which is left to the discretion of the execution”
9. On this background, the Court refused to strike down the conditions of Bond and Bank Guarantee. This judgment may have an impact on other states also and the reasoning given may be applicable to other states too. Unless the Apex Court in clear words decides in favor of candidates, those Candidates have to follow the judgment.
Thanks and Regards
(Adv. Rohit Erande)
Pune. ©
