Ajay Mohan Goel JUDGMENT
Sanjay Karol, Actg. C.J.
1. Since in all these petitions common questions of law and fact are involved, they are being disposed of by a common judgment.
2. Department of Medical Education and Research, Himachal Pradesh, issued a Prospectus-cum-Application Form 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, Himachal Pradesh.
3. Prospectus contained two parts, i.e. Part-A and Part-B. Serial No. 4 of Part-B, prescribed the following conditions, reproduction of which is necessary for adjudication of the present petition:
"4. BOND, BANK GUARANTEE AND STIPEND
4.1 All the In-Service regular medical Officers will be treated on duty during their entire period of doing PG Degree/Diploma course and will be paid their regular pay and allowances.
4.2 Medical Officers appointed on contract basis will be paid the contractual salary as per their contract agreement or as decided by the Govt. by time to time. No other incentive for serving as Medical Officer will be paid to such contractual appointees, while pursuing PG Degree/Diploma course.
4.3 The candidates who are the part of the All India Quota and chose not to take any stipend during the PG course shall be exempted from the bond conditions.
4.4 Direct candidates will be paid stipend as applicable to them:
1st year Rs. 35,000/- per month
2nd year Rs. 40,000/- per month
3rd year Rs. 45,000/- per month
4.5 There shall be condition of Bond for all the candidates (All India quota and State Quota) to serve the State for five years after completion of the PG course.
4.6 The candidate selected for PG Degree/Diploma will have to execute a Bank Guarantee which shall be amounting to Rs. 10 lacs (Rs. 3 lacs in 1st 2nd year respectively and Rs. 4 lacs in 3rd year). The Bank Guarantee shall be submitted before the commencement of each academic year. In the event of the candidates rescinding on the terms of the bond, the State Government shall have the right to forfeit the amount of bank Guarantee. Simultaneously the request for cancellation of registration of their Degree/Diploma shall be made to the MCI.
Note:(i) No fee shall be refunded in any case, if the candidates leaves PG degree course after last cut of date of admission.
(ii) No candidate will be allowed to draw more than one stipend/scholarship/financial assistance etc.
(iii) The selected candidates are required to submit requisite bond as prescribed in the Prospectus at the time of admission failing which stipend will not be paid to them. The stipend will be paid w.e.f. commencement of academic session. If any candidate will submit bond after commencement of academic session, then stipend will be paid to him/her from the date of submission of Bond in the concerned Medical College.
(iv) All the Postgraduate students (Direct and In-Services) shall be entitled for 30 days leave only per academic year during P.G. course. No carry forward of leave shall be allowed."
4. Appendix-6 of the Prospectus is the Bond, which the candidate, so selected and admitted to a particular course, is required to furnish, relevant portion of which is extracted hereinbelow:
"BOND
"Know all me by these present that I.....................S/O./D/O. Sh..................Resident of............Tehsil...............Distt. .........Himachal Pradesh, presently undergoing Postgraduate Degree/Diploma in the specialty of ____________ from Indira Gandhi Medical College/Dr. R.P. Govt. Medical College, Kangra at Tanda (Principal Obligor) and (2) Shri .......................... Resident of ....................Tehsil...........................Distt. (Himachal Pradesh) and at present working/employed as ............................ (3) Shri ...............................S/O
_________________ (Sureties) are jointly and severally, pursuant to the provisions of the Prospectus for Counseling and admission to postgraduate Degree(MD/MS) courses in IGMC, Shimla/Dr. R.P. Govt. Medical College, Kangra at Tanda for the academic session 2017-2020, bound to the Governor of Himachal Pradesh, (hereinafter unless the context otherwise require, referred to as the Himachal Pradesh Government) to the extent of serving in the State for Five years after doing Postgraduate Degree course to the said Governor or his successors in office, or assign him or his certain attorneys for which Bank Guarantee amounting to Rs. 10 Lacs, (Rs. 3 Lacs in 1st & 2nd year respectively and Rs. 4 Lacs in 3rd year) to be furnished to serve the State of Himachal Pradesh for aforesaid period after completion of above Postgraduate Degree Course failing which the State Government shall have the right to forfeit the amount of Bank Guarantee. Simultaneously the request for cancellation of registration of their Degree shall be made to the MCI and we bind ourselves, our executors, administrators and representatives firmly by these presents. Further, the above Principal Obligor (In service GDO/Direct) and his sureties bind not to leave the above course in mid-session failing which the Principal Obligor (Direct) shall have to refund the entire stipend in lump sum within the period of one month failing which penal interest will be charged and in the case of GDO, such period shall be treated as leave of kind due. Further, the Principal Obligor shall be debarred from seeking admission in any other subject for a period of Five years from the date of leaving the course. Besides, the period spent on incomplete course in the case of GDO's will be treated as "dies on" for all intends and purposes.
Signed and delivered by ourselves at ..........this.............day of .............. Whereas, the said Dr........................(Principal Obligor) has been admitted in to the Indira Gandhi Medical College/Dr.R.P. Govt. Medical College, Kangra at Tanda for doing Post Graduate course (Degree).
And Whereas, the Himachal Pradesh government has agreed to award him a stipend at the rate of Rs. ....................../- (In case of fresh candidate full pay and allowances/study leave (in case of in-service candidate of the health Service) per month for a period of three years during his stay at the said College subject to his entering into a Bond for serving in the State for 5 years after completion of Postgraduate Degree Course with two sureties in the same sum. (And whereas the said Shri.....................(Principal Obligor) has agreed to enter into the said bond."
5. It is not in dispute that in terms of the Prospectus, petitioners were selected and admitted to the respective courses of their choice, on the basis of their respective merit.
6. Academic session for the Postgraduate courses was to start from 1.5.2017.
7. Subsequent to the date of admission, but prior to commencement of the academic session, petitioners approached this Court, assailing the condition of furnishing of Bank Guarantee, so stipulated in Clause-4.6 of Part-B and Appendix reproduced supra.
8. The challenge is on the grounds that (a) such condition is unreasonable, irrational, illogical and thus illegal, (b) in the past no such condition was imposed, (c) with more and more doctors being available and willing to serve the State, the condition has lost its purpose, (d) the condition is violative of Articles 14 & 21 of the Constitution of India, inasmuch as it restricts admission only to economically affluent candidates, (e) it casts an unnecessary burden upon the students belonging to economically backward families, (f) necessary co-relation with imposition of condition and admission to the degree course is non-existent, (g) nexus with the object sought to be achieved is missing.
9. In support, learned counsel for the petitioners have referred to and relied upon several decisions and more specifically the one rendered by the Gujarat High Court in Aswath Kumar R. v. State of Gujarat, MANU/GJ/0619/1999 : (2000) 4 GLR 369.
10. It is a settled principle of law that Prospectus is a complete code in itself. It is also settled principle of law that candidates seeking admission under the Prospects are bound by the terms contained therein. (Gunjan Kapoor v. State of Himachal Pradesh and others, MANU/HP/0142/1998 : 1999 (1) Shim.L.C. 246).
11. In D.N. Chanchala v. The State of Mysore and others, MANU/SC/0040/1971 : 1971(2) SCC 293, the Apex Court held has under:
"So long as the rules for selection applicable to the colleges run by the Government do not suffer from any constitutional or legal infirmity, they cannot be challenged as the Government can regulate admission to its own institutions. The objection that it cannot, by such rules, provide for requirements over and above those laid down by the universities for eligibility cannot be sustained."
"The Government which bears the financial burden of running the Government Colleges is entitled to lay down criteria for admission in its own colleges and to decide the source from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources the validity of the rules laying down such sources cannot be challenged. Candidates passing through the qualifying examination held by a University form a class by themselves as distinguished from those passing through such examination from the other two Universities. Such a classification has a reasonable nexus with the object of the rules, namely to cater to the needs of candidates who would naturally look to their own University to advance their training in technical studies. The rules do not violate Article 14."
12. In the instant case, either prior to or during the process of selection, petitioners did not lay any challenge to anyone of the conditions stipulated therein. Also, they did not raise any objection at the time of counselling or took their admission under protest. Having participated in the selection process, they are bound by the terms and conditions. Hence, petitioners can be non-suited purely on this count.
13. However, we are not inclined to adopt such an approach, for we want to examine the legality of the condition impugned herein.
14. A brief background leading to the imposition of the condition in the Prospectus. Ninety percent 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. In the past, there had been instances where instead of serving the State, more so in remote areas, with the completion of their Postgraduate Degree from the Medical Colleges of the State, they left the State for greener pastures. Doctors refused to serve the State for at least five years. Previously, the only condition imposed was furnishing of a bond, amounting to ` 15,00,000/-, which was rescinded with the doctors not serving the State. Recovery of money was an issue. Keeping in view the past experience, a conscious decision was taken to reduce the amount of bond with a condition of furnishing Bank Guarantee, also linking disbursement of the admissible salary/stipend with the same.
15. Candidates seeking admission to MD/PG courses are not adolescents, graduating from school, seeking admission to the first level of a medical degree. They have already undertaken their studies for five years. Some of them are now serving the State in one capacity or the other. While undertaking studies of a Specialist course, they are paid money as salary or stipend on monthly basis ranging from ` 35,000/- to ` 45,000/-, during the entire course. Also, State spends huge amount of money in imparting education.
16. Let us examine the conditions stipulated in the Prospectus. It deals with different categories of students, i.e. those, who are in regular service of the State; on contractual basis; and direct candidates being part of the All India Quota. Significantly, direct candidates are also paid stipend at the rate of ` 35,000/- per month in the first year, with a corresponding increase of ` 5,000/- in the next two successive years. Clause 4.3 exempts direct candidates - from All India Quota (who do not choose to take any stipend during the PG course, shall be exempted from the condition of furnishing the bond). Significantly all candidates, in one capacity or the other, are entitled to receive payments/financial assistance from the State. It is in this backdrop, we find the condition to be absolutely reasonable.
17. For first three years, Bank Guarantee is for a sum of ` 3,00,000/- each and only in the fourth year, the amount is increased to ` 4,00,000/-. The Bank Guarantee is to be furnished in stages.
18. Noticeably, the amount of bank Guarantee is less than the amount which a candidate would be receiving as a stipend/salary.
19. Thus, the condition of furnishing of bond as also Bank Guarantee with the release of the amount of salary/stipend and the candidate serving the State for more than five years is with the avowed object of ensuring availability of best medical care and facilities to the natives of the State, residing in remote, far flung and tribal areas.
20. We are unable to persuade ourselves with the view taken by the learned Single Judge of Gujarat High Court in Aswath Kumar R. (supra), in directing the State not to insist upon the candidates to furnish Bank Guarantee. Significantly the Court was concerned with the Prospectus, containing a stipulation, that surety was to be furnished by a person, who had stayed or belonged to the State of Gujarat. It is this, what essentially prompted the Court to interfere all the more. Each case has to be seen and considered in the backdrop and the peculiar facts and circumstances.
21. Scope of judicial review of a policy is well settled. Unless and until the policy fails the test of reasonableness; it is not fair or beneficial to the public at large; it impinges upon Part-III of the Constitution of India; it is whimsical and motivated with an ulterior purpose.
22. In Centre for Public Interest Litigation v. Union of India and others, MANU/SC/0372/2016 : (2016) 6 SCC 408, 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. It was beautifully explained by the Court in Narmada Bachao Andolan v. Union of India, MANU/SC/0640/2000 : (2000) 10 SCC 664 and reiterated in Federation of Railway Officers Assn. v. Union of India, MANU/SC/0231/2003 : (2003) 4 SCC 289 in the following words:
"12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters."
23. Limits of the judicial review were again reiterated, pointing out the same position by the Courts in England, in the case of G. Sundarrajan v. Union of India v. Union of India, MANU/SC/0466/2013 : (2013) 6 SCC 620 in the following manner:
"15.1. Lord MacNaughten in Vacher & Sons Ltd. v. London Society of Compositors, 1913 AC 107 has stated:
"... Some people may think the policy of the Act unwise and even dangerous to the community. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction."
15.2. In Council of Civil Service Unions v. Minister for the Civil Service, MANU/UKHL/0045/1984 : 1985 AC 374, it was held that it is not for the courts to determine whether a particular policy or particular decision taken in fulfillment of that policy are fair. They are concerned only with the manner in which those decisions have been taken, if that manner is unfair, the decision will be tainted with what Lord Diplock labels as "procedural impropriety".
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25. Taking aid from the aforesaid observations of the Constitution Bench, the Court reiterated the words of caution in Peerless General Finance and Investment Co. Limited v. Reserve Bank of India, MANU/SC/0685/1992 : (1992) 2 SCC 343 with the following utterance:
"31. The function of the court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts."
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27. The raison d'etre of discretionary power is that it promotes decision maker to respond appropriately to the demands of particular situation. When the decision making is policy based judicial approach to interfere with such decision making becomes narrower. In such cases, in the first instance, it is to be examined as to whether policy in question is contrary to any statutory provisions or is discriminatory/arbitrary or based on irrelevant considerations. If the particular policy satisfies these parameters and is held to be valid, then the only question to be examined is as to whether the decision in question is in conformity with the said policy."
23. Condition of furnishing a bond as also Bank Guarantee, in our considered view, cannot be said to be unreasonable, irrational, illogical and thus illegal. 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. Under these circumstances, the condition cannot be said to be violative of Articles 14 & 21 of the Constitution of India. It also cannot be said that the condition is violative of Part-III of the Constitution, as it does not restrict admission only to such of those persons, who are economically affluent. Not only the State is incurring expenditures in imparting education, but is also making payment to them in one form or the other. That apart, the Bank Guarantee is required to be furnished in phases and not in one go. ` 3,00,000/- per annum is not a huge amount, which a specialist cannot afford to arrange for and that too for the purpose of Bank Guarantee. Yes, Bank Guarantee is furnished against some tangible security, but then 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. Nexus with the object sought to be achieved is very much evident and explained. There is co-relation between the imposition of condition and admission to a degree course. For after all, State is incurring huge expenditure and as already observed the endeavour is to stop brain-drain and enable the specialists to serve the residents of the State to provide benefits to the residents of the State. 24. Learned counsel have referred to the following decisions rendered by Hon'ble Supreme Court of India for our consideration, which is reflective of their industry:-
Brij Mohan Lal v. Union of India and others, MANU/SC/0316/2012 : (2012) 6 SCC 502; National Insurance Company Limited v. General Insurance Development Officers Association and others, MANU/SC/7459/2008 : (2008) 5 SCC 472; Kailash Vhand Sharma v. State of Rajasthan & others, MANU/SC/0641/2002 : (2002) 6 SCC 562; Union of India and another v. International Trading Co. and another, MANU/SC/0392/2003 : (2003) 5 SCC 437; and Union of India and others v. Dinesh Engineering Corporation and another, MANU/SC/0575/2001 : (2001) 8 SCC 491.
However, keeping in view the latest judicial pronouncement in Centre for Public Interest Litigation (supra), we feel no need to deal with each one of them separately.
25. Thus, in view of the above discussion, it cannot be said that the condition of furnishing Bank Guarantee is unreasonable, irrational, illogical and thus illegal, or that it is violative of Articles 14 & 21 of the Constitution of India. Also, it cannot be said that the said condition casts an unnecessary burden upon the students belonging to economically backward families.
Hence, all the petitions stand dismissed. Pending application(s), if any also stand disposed of.
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