Aditiya Kumar Chauhan & Others vs State Of Uttarakhand

Ramesh Ranganathan, CJ

The applications, seeking condonation of the delay in filing the counter affidavits, are not opposed and the delay is, therefore, condoned. Counter affidavits are taken on record. Applications made, therefor, stand disposed of.

The petitioners, in both these writ petitions, have invoked the jurisdiction of this Court questioning the notice issued by the Director General, Medical Health and Family Welfare, Uttarakhand dated 20.12.2017, enclosing therewith a list of Doctors, calling upon all of them to be present at the Medical Education Directorate, Dehradun by 31.12.2017 in order to serve the State.

Facts, to the extent necessary, are that the petitioners took admission in the Uttaranchal Forest Hospital Trust Medical College, Haldwani in the year 2004-05 after qualifying in the pre-medical test examination, and were admitted under the Uttarakhand State quota. On 30.06.2006, a Government Order was issued providing scholarship to all eligible candidates, including the petitioners, on condition that they would serve the State of Uttarakhand, for a minimum period of five years, for having taken the benefit of the reduced fee/subsidized fee. The petitioners signed the bond in the year 2006, and were extended the benefit of reduced/subsidized tuition fees. They completed their MBBS course in the year 2009, and their one year internship in the year 2010. An MBBS degree, with a certificate of internship, was conferred on them on 01.05.2010.

Three years thereafter, the State Government, by its proceedings dated 05.04.2013, called upon the petitioners to join Government service as a Medical Officer. The petitioners claim that they were preparing for the P.G. NEET examination when they received the said letter; and, on their being found successful in the P.G. Neet examination, they were granted admission in post-graduate medical degree courses which they joined in July, 2013. Even for undergoing the post graduate medical degree course, the petitioners were extended the benefit of scholarship, and were charged a subsidized tuition fee of Rs. 60,000/- per annum, as against the full per annum fee of Rs. 5,00,000/-. In order to claim such benefit, they were required to execute a bond undertaking to serve, in any of the Government Hospitals or Health Centres situated in the hilly regions of the State of Uttarakhand, as a Medical Officer/Specialist on contractual basis atleast for a minimum period of two years, failing which they would be liable, severally or jointly, to pay the Government the full tuition fees, of the entire MD/MS course, calculated at the prevailing rate along with such interest, as may be determined by the Government, as described in clause 3 of the bond. The amount calculated, and stipulated in the bond, was Rs. 5,00,000/-per annum along with compound interest thereupon at the prevailing bank lending rate, as may be determined by the Government of Uttarakhand, minus the subsidized fees already paid in the Government Medical Colleges, Uttarakhand.

On completion of their post graduate medical degree course, the petitioners were required to work as Medical Officers/Specialists, in the hilly regions of the State of Uttarakhand, for a period of two years as was stipulated in the bond executed by them. After completing their post graduate course the petitioners, instead of reporting for duty at the Medical Education Directorate, Dehradun to be posted in the hilly regions of the State of Uttarakhand, invoked the jurisdiction of this Court by way of Writ Petition (S/B) Nos. 414 and 450 of 2016, wherein they sought a writ of mandamus directing the respondents to declare their action, of taking an indemnity bond, as illegal, null and void; and to direct the respondents to forthwith release their educational qualification documents to enable them to pursue the super-speciality courses; and for a mandamus directing the respondents to provide them posting, as per their qualifications, as a Senior Resident/Medical Officer in the Medical Colleges of the State. The aforesaid writ petitions, filed by both the petitioners herein, were disposed of in terms of the earlier order passed by the Division Bench in Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016.

In Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016, the Division Bench had observed that it had instructed the learned Standing Counsel for the Government to ascertain whether the State was willing to provide employment to the petitioners; the learned Standing Counsel had submitted that the Government had taken a decision to provide employment to the petitioners as Senior Residents in Government Medical Colleges in the State on contractual basis for a period of one year and, afterwards, they will serve in other Government Hospitals of the State, as per their specialization; in response to the petitioners' apprehension, that the Government would not issue a certificate regarding the said service (evidently service as Senior Residents in Government Medical Colleges), the learned Standing Counsel for the State Government had submitted that the State Government would provide experience certificate to the petitioners, for the period they worked, at the end of the period and, as per the indemnity bond, the petitioners were obligated to work for a period of two years; in terms of the earlier order of this Court, if an offer was not made within 60 days from the date of completion of the P.G. course, and the doctor remained idle for no fault of his, then the period he remained idle shall be adjusted in the total period mentioned in the bond; and the petitioners had submitted that they were willing to serve the State of Uttarakhand on the basis of the offer as made by the learned Standing Counsel. The batch of writ petitions, in Writ Petition (S/B) No. 358 of 2016 and batch, were disposed of directing that appointment be given to the petitioners at the earliest and, in any case, within a period of three weeks. The respondents were also directed to issue experience certificates to the petitioners, for the period they so worked, at the end of the contractual period.

The petitioners, in Writ Petition (S/B) No. 358 of 2016 and batch, had sought to be posted as Senior Residents/Medical Officers, in the Medical Colleges of the State, for a period of one year on a contractual basis, as that would enable them to fulfill the prerequisite, of being a Senior Resident/Medical Officer in a Medical College for a period of one year, in order to be considered for appointment to the posts of Assistant Professor. It is admitted, by learned counsel on either side, that the petitioners herein had worked as Senior Residents at the Haldwani Medical College.

Reference, to the time stipulated by an earlier order of this Court, in the order of the Division Bench in Writ Petition (S/B) No.358 of 2016 and batch dated 28.09.2016, is to the order passed in Writ Petition (M/S) No. 1224 of 2014 and batch dated 03.06.2014. In these batch of writ petitions, the learned Single Judge held that, in terms of the bond, all those Doctors were required to serve for the minimum period stipulated in the bond, and if they failed to do so, they would be required to refund the actual amount of the financial help received by them after the Government Order dated 30.06.2006, along with prevailing bank interest payable on the F.D.R., for 60 months. The order of the learned Single Judge obligated the State Government to offer appointment within 60 days from the date of completion of the internship of the MBBS course, or within 60 days from the date of completion of the PG course; and, if State Government failed to issue an appointment letter within 60 days, then the period, for which such doctor remained idle for no fault of his, should be adjusted in the total period of mandatory service.

The questions, which necessitate examination in both these writ petitions, are firstly whether the petitioners are obligated, in terms of the bond executed by them while undergoing their under-graduate medical course, to serve the State of Uttarakhand for a period of 5 years and, secondly, whether, in terms of the bond executed by them while undergoing their post-graduate medical degree course, they are obligated to serve in the hilly areas of the State of Uttarakhand for a period of two years.

As noted hereinabove the actual fees payable by the petitioners, for undergoing both the under-graduate and the post-graduate medical courses, was far higher. The petitioners, however, availed the benefit of a subsidized tuition fee on furnishing an undertaking, by executing a bond, to serve the State of Uttarakhand, after completing their MBBS/MD course, for the duration stipulated in the bond. Failure on the part of the petitioners to join duty as Medical Officers, in the State of Uttarakhand, required them to return the differential amount (the actual fees liable to be paid by them minus the subsidized fees paid by them) along with the stipulated interest. Having completed their under-graduate medical course at the cost of the public exchequer, the petitioners cannot now be heard to contend that, despite availing the benefit of subsidized tuition fees and notwithstanding their having executed a bond, they should not be called upon by the State Government to render services in the hilly areas of the State of Uttarakhand. While the petitioners are, no doubt, entitled to pay the amount stipulated in bond along with the interest amount prescribed therein and then work elsewhere, they cannot have the best of both worlds i.e. of not having to pay the differential fees along with the interest amount, prescribed in terms of the bond voluntarily executed by them, while at the same time avoid working in the hilly areas of the State for the stipulated period. They cannot also be be permitted to violate the conditions to which they had voluntarily agreed i.e. to serve the State of Uttarakhand for the stipulated period or, in the alternative, to remit the differential tuition fees along with interest as is stipulated in the bond. Waiver of a substantial part of the tuition fees was only on the undertaking of the petitioners that they would serve in the hilly areas of the State for the stipulated period of two years. The Government of Uttarakhand had provided an incentive, for meritorious students to undergo under-graduate/post-graduate medical courses at subsidized tuition fees, only to avail their expertise (gained by them on having undergone the under-graduate/post-graduate medical courses) in providing adequate medical facilities to the hilly areas, a majority of which constitute the backward regions of the State of Uttarakhand.

It is no doubt true that the bond executed by the petitioners, while undergoing their undergraduate medical course, required them to work with the State of Uttarakhand for a period of 5 years. While the petitioners completed their internship, after having completed their MBBS course, in the year 2010, appointment orders were issued to them only on 05.04.2013 i.e. three years after they had completed their under-graduate medical courses including their internship. Mr. Sandeep Tiwari, learned counsel for the petitioners, would submit that, since the petitioners could only have joined duty as Medical Officers if they had been issued letters of appointment, the State Government could not expect them to remain idle for three years, and expect them to endlessly wait for letters of appointment to be issued by the State Government as and when they choose. On the other hand, Mr. Pankaj Purohit, learned Deputy Advocate General, would submit that the bond, voluntarily executed by the petitioners, does not stipulate a time frame within which the State Government should issue letters of appointment; the five years' period, which the petitioners are required to serve, would commence from the date on which the State Government issues letters of appointment; and since the petitioners were issued letters of appointment on 05.04.2013, the subsequent order of this Court, in Writ Petition (M/S) No. 1224 of 2014 and batch dated 03.06.2014 fixing a time frame for issuing letters of appointment, would have no application.

Accepting the submission of the learned Deputy Advocate General would result in absurd consequences for, if the State Government were to be permitted to issue letters of appointment as and when they choose, it may well result in letters of appointments being issued 10 or 15 years after a student has completed his under-graduate medical course, and thereafter being required to serve the State of Uttarakhand for 5 years, when, in the interregnum, he/she may have joined services elsewhere, and may, in terms of such appointment, be obligated to continue to serve such an organization.

It is no doubt true that, while the order of the learned Single Judge, in Writ Petition (M/S) No. 1224 of 2014 dated 03.06.2014, obligated the State of Uttarakhand to issue letters of appointment within 1 year, the petitioners were issued letters of appointment more than a year prior thereto on 05.04.2013. That does not, however, mean that the State Government can force qualified doctors to sit idle endlessly with the hope that the State Government would issue letters of appointment someday. We are satisfied that the State Government, by issuing letters of appointment three years after the petitioners completed their internship in the year 2010, must be held to have forfeited its rights, in terms of the bond executed by the petitioners, to force them to serve the State of Uttarakhand for 5 years or, in the alternative, to recover the differential tuition fees with interest. While we see no reason to permit the State Government to enforce the bond, executed by the petitioners while undergoing their under-graduate medical course, in view of its lapse in issuing letters of appointment for more than three years thereafter, the issue regarding enforcement of the bond, executed by the petitioners while undergoing their post-graduate medical course, stands on a different footing altogether.

As noted hereinabove, the State Government had issued letters of appointment to the petitioners on 05.04.2013 even before they joined their post-graduate medical course in July, 2013. They were again issued letters of appointment on 17.10.2016 within 60 days of their having completed their post-graduate medical course. In view of the orders passed by this Court, in Writ Petition (S/B) Nos. 414 and 450 of 2016 dated 26.10.2016 (an order passed in accordance with the earlier order in Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016), the petitioners were permitted to complete their Senior Residency for a period of one year, on the assurance that they would thereafter serve in the hilly areas of the State of Uttarakhand for a period of two years. While they were undergoing their Senior Residency, the petitioners participated in a walk-in-interview for the post of Assistant Professor on contractual basis and, on being found successful in the said interview, they were appointed as Assistant Professors on 30.03.2017, and are working as such at the Medical college at Haldwani.

Mr. Sandeep Tiwari, learned counsel for the petitioners, would submit that, since the bond required the petitioners to serve the State of Uttarakhand, and they have rendered service to the State of Uttarakhand, firstly as a Senior Resident for a period of one year, and thereafter as Assistant Professors, it must be presumed that they have complied with the conditions, of the bond executed by them, to serve the Government for a period of two years. We must express our inability to agree. As noted hereinabove, the petitioners were permitted to undergo their Senior Residency in compliance with the orders passed by this Court in Writ Petition (S/B) Nos. 414 and 450 of 2016 dated 26.10.2016. As noted hereinabove, both these writ petitions were disposed of in terms of the order passed in Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016 recording the submission made on behalf of the State Government that the petitioners would be permitted to complete their Senior Residency, and would be obligated to work for a period of 2 years at the end of the said period, and as per the indemnity bond. The petitioners were, therefore, obligated to work for a period of 2 years, in hilly areas of the State of Uttarakhand, on completion of their one year Senior Residency. Despite the said order, the petitioners, instead of reporting for duty in terms of the letter of appointment dated 17.10.2016, chose to appear in the walk-in-interview for appointment to the post of Assistant Professors on a contractual basis, and joined duty as Assistant Professors in the Medical College at Haldwani on 30.03.2017.

The obligation cast on the petitioners, in terms of the bond executed by them, is to serve as Medical Officers/Specialists in the hilly areas of the State of Uttarakhand for a period of 2 years. Haldwani is not a hilly area, and the post of Assistant Professor is not the post of Medical Officer/Specialist to which they were appointed in terms of the letter of appointment dated 17.10.2016. The petitioners are, therefore, not entitled to seek to have their obligation, to serve for two years, in the hilly areas of the State of Uttarakhand, set off against the period they worked as a Senior Resident, and as an Assistant Professor, at the Medical College at Haldwani.

Mr. Sandeep Tiwari, learned counsel for the petitioners, would place reliance on a letter, issued by the Principal, Medical College, Haldwani, dated 28.10.2016 to submit that it is evident therefrom that the period of two years is required to be set off against the one year Senior Residency programme which the petitioners had completed. We must express our inability to agree. The order passed by a Co-ordinate Bench of this Court, in Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016, binds us, and not the understanding of the Principal of the Medical College to the contrary as reflected in his letter dated 28.10.2016. Orders of appointment dated 17.10.2016 were issued to the petitioners, appointing them as Medical Officers in terms of the bond executed by them, by the Director General, Medical Health and Family Welfare, Government of Uttarakhand. The letter of the Principal, Medical College, Haldwani dated 28.10.2016 would, therefore, not aid the petitioners in any manner, nor can such a letter enable them to avoid their obligation to serve as Medical Officers in the hilly areas of the State for a period of two years. As noted hereinabove both Writ Petition (S/B) Nos. 414 and 450 of 2016 were disposed of in terms of the order passed in Writ Petition (S/B) No. 358 of 2016 and batch dated 28.09.2016, wherein the Division Bench recorded the submission of the learned Standing Counsel that the Government would provide the experience certificate to the petitioners for the period they worked, at the end of the period, and, as per indemnity bond, the petitioners were obligated to work for a period of two years. The Division Bench had also recorded the submission that the petitioners were willing to work in the State of Uttarakhand on the basis of the offer made by the learned Standing Counsel before the Division Bench.

Failure on the part of the petitioners to report for duty, in terms of the letter of appointment dated 17.10.2016 and to serve in the hilly areas of the State of Uttarakhand for a period of two years, would not only result in their having acted in breach of the conditions of the bond executed by them, but would also be in flagrant violation of the orders of the Division Bench in Writ Petition (S/B) Nos. 414 and 450 of 2016 dated 26.10.2016.

We see no reason, therefore, to interfere with the notice impugned in these writ petitions whereby the petitioners were directed to join duty. Suffice it to observe that no coercive action shall be taken, by the State Government, in case the petitioners report for duty on or before the 15th of March, 2019. In case the petitioners fail to report on duty by then, it is open to the respondents to initiate steps not only for recovery of the amount due and payable by them in terms of the bond, but also to take disciplinary action against them for their failing to join duty in terms of the bond executed by them earlier. As failure on the part of the petitioners would also amount to violation of the order passed by the Division Bench of this Court, it is open to the State Government, if they so choose, to institute proceedings against the petitioners for violation of the said order.

Needless to state that, in case the petitioners deposit the entire amount due and payable, in terms of the bond executed by them while they were undergoing their post-graduate medical course, along with interest as is stipulated therein, on or before 15.03.2019, the State Government shall not take any coercive measures against them.

Both the writ petitions are, accordingly, disposed of.  No costs.

Let a certified copy of this order be issued to all the parties, on payment of prescribed charges, within one week.