Author: Deepa, stt=udent at Lloyd Law College, Meerut.
Citation: 376 0f 2018 (civil)
Date of Decision: 19/08/2019
Bench: L. Nageshwara Rao, Hemant Gupta
Original Copy: here
Issues in Question:
- Was it filed to challenge the present situation of medical facilities or legislation necessary for that purpose ?
- Is this notification impinged upon the freedom of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art (19) of the Constitution of India and also violates the section 27 of the Indian Contract Act ?
Background of the case:
- The notification raised by the department of health and family welfare, government of West Bengal, execution of compulsory bond at the time of admission to post graduate courses was challenged in calcutta high court .
- After that it makes an impact on the marksheet, certificate and other documents of students which makes a more frustrating and annoying situation to the young youth as it violates the fundamental rights.
- This imposed a condition of compulsory service which infringed their fundamental rights under art 14 ,19 and 21 of the constitution of India. It was argued that all matters pertaining to medical education are covered by the Medical Council of India Act, 1956. In view of the lack of legislative competence, the State Government does not have power to issue execution orders in respect of compulsory bonds.
- Karnataka High Court: The appellants who have completed postgraduate degrees/diploma courses in government medical colleges should serve the government for one year, Rule (15)(7) of the Karnataka Conduct of Entrance Test for selection and Admission to postgraduate Medical and Dental Degree and Diploma Course Rules, 2006 , which imposes a penalty of Rs 50 Lakhs and Rs 25 Lakhs respectively.
- Kerala High Court: The decision held that there is no restriction imposed on the medical students from practicing the profession.
- Bombay High Court: The decision held that imposition of a condition that the Appellants should serve in the Government medical colleges for a period of one year failing which they have to pay a penalty was found to be neither arbitrary nor unreasonable.
- Gujarat High Court: The decision held that the bond agreement as unreasonable and unconscionable. The agreement was opposed to public policy and violative of Article 14 of the Constitution of India.
- Mr. Prashanto Chandra Sen, Senior Counsel appearing for the Writ Petitioners in (civil) 376 of 2018 argued that the doctors who have completed the postgraduate courses and super Speciality courses are national assets. Their services should be utilized in the best possible manner in places where there are facilities and they should not be wasted in rural areas.
- Mr. Huzefa Ahmadi, Senior Counsel appearing for the Writ Petitioners in (civil) SLP no. 10007of 2019 contended that the condition imposed for rendering compulsory services in Army is violative of Art 19(1), 23(1) and 21 of the Constitution of India, also violates section 27 of Indian Contract Act 1872.
- Jurisdiction of the State Government: 7th Schedule of the constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical instruments. 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. Even in the absence of any legislation, the State Government has the competence to issue executive orders under art 162 of the Constitution on matters over which the states government is imposing a condition of bond. It cannot be said to be vitiated due to lack of authority or competence. The field of bond 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 notification as the field is occupied are rejected.
- Violation of fundamental rights: The main contention of the counsel of appellants is that the long period of service that is imposed is unreasonable. The fact that they have already served the society by working in government hospitals during the internship of the course’s further condition would impede the progress of their careers.
- Contract of Personal services: The court can never allow on enforcing agreements, strictly personal in their nature of service; it is not permissible in Specific Relief Act, 1963 .
- Restrain on Profession: These compulsory bonds placed a restraint on their profession and contrary to section 27 of Indian Contract Act 1872 . If they want to serve, then offer a job to them.