PG Candidates should furnish Bond & Bank Guarantee irrespective thier financial status.
"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 of the Judgment :
Facts
in Short :
1. The
similar petitions were tagged together which challenged the Constitutional Validity of the provision
of furnishing Bond/ Bank Guarntee 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
Guarntee of Rs.10
lakhs (Rs.3 laks in 1st and 2 year
and Rs.4 laks in 3rd year).
3. The Conditions of the Bond were deterrent. In case the students rescinding the Bond, the
State Govt. was authorised to encash the Bank Guarntee 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 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 Guarntee 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 angel.
3. While
referring to the History behind 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 Guarntee
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. 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
these background, the Court refused to strike down the conditions of Bond and
Bank Guarantee. This judgment may have impact on other states also and the
reasoning given may be applicable to other states too. Unless the Apex Court in
clear words decide in favour of candidates, those Candidates have to follow the
judgment.
Thanks and Regards
(Adv. Rohit Erande)
Pune.
Comments
Post a Comment