Deepali Chauhan vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Lalit Belwal, learned Advocate for the petitioner and Mr. Anil Bisht, learned Standing Counsel for the State Government, and with their consent the writ petition is disposed of at the stage of admission.

The petitioner invoked the jurisdiction of this Court to quash the letter dated 22.11.2018, in so far as it related to depositing of Rs. 17,70,591/-; and for a writ of mandamus directing the respondents to adjust 314 days as served by the petitioner, and for the respondent to seek payment for only the remaining 416 days; and to set the petitioner free from the service bond.

Facts, to the limited extent necessary, are that the petitioner took admission, in a three years Post Graduate Medical Course, in the Government Medical College, Haldwani, District Nainital in the academic session 2014-15. At the time of her admission, she was asked to execute a service bond to serve the State of Uttarakhand for two years and, in view thereof, she was held entitled to subsidised tuition fee of Rs. 60,000/- per annum, as against the full tuition fees of Rs. 5,00,000/- per annum. As a result, instead of 15,00,000/- as full tuition fee for the three year period, the petitioner could pay only Rs.1,80,000/- as tuition fees during this three years period. The petitioner completed her post graduation on 30.06.2017. The Director General, Health and Family Welfare issued proceedings dated 24.07.2017 appointing the petitioner as a Medical Officer at the Primary Health Centre, Pilkhi, in Tehri Garhwal District. However she did not join the said post. The petitioner filed WPSB No. 329 of 2017 before this Court thereafter on 26.07.2017, which was decided on 28.07.2017 in terms of the judgment passed earlier in WPSB No. 358 of 2016 dated 28.09.2016. The petitioner was issued order dated 10.05.2019 appointing her as a Senior Resident, at the Veer Chandra Singh Garhwali Government Medical Science and Research Institute, Srinagar, Garhwal. She, however, did not join the said post also.

The petitioner claims to have submitted a representation to reset her bond on 30.06.2017 and 17.10.2018. By letter dated 22.11.2018, the third respondent called upon the petitioner to deposit the fee of Rs. 17,70,591/-for being released under the obligations from the service bond. She has now invoked the jurisdiction of this Court contending that the period from 01.07.2017 to 10.05.2018 (when she was appointed as a Senior Resident) should be adjusted from the two year period of the bond, meaning thereby that, from out of the 730 days, she was liable to pay only for 416 days on a proportionate basis, after counting 314 days as having been served.

In the counter affidavit, filed on behalf of the third respondent, it is stated that, soon after the petitioner completed her Post Graduate Degree on 30.06.2017, an appointment letter dated 24.07.2017 was issued by the Director General Health and Family Welfare, Uttarkhand, Dehradun whereby she was appointed as a Medical Officer at the Primary Health Centre Pilkhi, Tehri Garhwal, pursuant to the bond executed by her; she, thereafter, filed WPSB No. 329 of 2017 seeking appointment as a Senior Resident in any of the Medical Colleges of the State on a contractual basis for a period of one year; the said writ petition was disposed of 28.07.2017 in terms of the judgment and order in WPSB No. 358 of 2016; in compliance with the order, she was offered appointment as a Senior Resident on 10.05.2018; instead of joining the post of a Senior Resident, the petitioner, by her e-mail dated 13.06.2018, sought exemption from her obligations under the bond; the respondents have complied with the order of this Court in WPSB No. 358 of 2016 dated 28.09.2016; and, consequently, the requirement of issuing an appointment order within 60 days of her completing her post-graduate medical course has not been violated; the Secretary, Medical Education had issued clarification, by Government Order dated 01.03.2018, that the previous service rendered in the Health Department shall only be considered as bond service, the services rendered as a Senior Resident in a Medical College, in the Department of Medical Education, was not available to bond students, and could not be treated as having served the Health Department for a period of two years. Reliance is placed by the respondents on a Division Bench Judgment of this Court in WPSB No. 110 of 2018 and WPSB No. 112 of 2018 dated 01.03.2019 in this regard.

As noted hereinabove the petitioner, after completion of her Post Graduation and her being offered appointment on 24.07.2017, filed WPSB No. 329 of 2017, before this Court on 26.07.2017 which was disposed of by a Division Bench of this Court in terms of the order passed by them earlier in WPSB No. 358 of 2016 dated 28.09.2016.

In its order in WPSB No. 358 of 2016 and batch dated 28.09.2016, the Division Bench recorded its having asked the Standing Counsel to seek instructions as to whether the State was willing to provide employment to the petitioners; the Standing Counsel had stated that the Government had taken a decision to provide appointment to the petitioners, as Senior Residents in Government Medical Colleges in the State, on a contractual basis for a period of one year; afterwards, they would serve in other Government Hospitals of the State as per their specialization; taking note of the apprehension, expressed on behalf of the petitioners, that the Government would not issue a certificate of experience, the Division Bench noted the submission of the learned Standing Counsel for the State Government to 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; and in terms of the earlier order passed by this Court, if an offer was not made within 60 days from the date of completion of the post graduate course, and the doctor remained idle for no fault of his, the period he remained idle shall be adjusted in the total period mentioned in the bond. The writ petitions were disposed of directing that appointment be given to the petitioners at the earliest and, in any case, within a period of three weeks from the date of the order.

In this context, it is necessary to note that the petitioners in WPSB No. 110 of 2018 and WPSB 112 of 2018 had also filed WPSB No. 414 and 450 of 2016 seeking a relief similar to the one sought for by the petitioner herein in WPSB No. 329 of 2017. The writ petition filed by them (i.e. WPSB No.414 & 450 of 2016) were also disposed of in terms of the order passed by the Division Bench in WPSB No. 358 of 2016 and batch dated 28.09.2016. In its order in WPSB No. 110 of 2018 and WPSB No. 112 of 2018 dated 01.03.2019, the Division Bench observed as under:-

"..........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 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...." (emphasis supplied)

With regards the contention, that the period served by them as a Senior Resident of one year should be deducted from the bond period, the Division Bench opined as under:

".....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.

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......"

(emphasis supplied)

In the present case also the petitioner, though offered appointment as a Medical Officer in the Primary Health Centre, Pilkhi, District Tehri Garghwal on 24.07.2017 (less than a month after she had completed her post graduation on 30.06.2017), did not join the said post. She did not also join the Senior Resident programme pursuant to the letter of appointment dated 10.05.2018. Unlike in the aforesaid cases, it is not even the petitioner's case that the services rendered by her, as a Senior Resident, should be excluded from the bond period in as much as the petitioner never served as a Senior Residents, though she was offered appointment on 10.05.2018 in compliance of the order of the Division Bench. She did not also join the post of a Medical Officer offered to her vide proceeding dated 24.07.2017, and she would yet contend that the period of 314 days, from 01.07.2017 to 10.05.2018, should be excluded. The petitioner has, conveniently, omitted any reference to the appointment order issued in her favour on 24.07.2017 in the affidavit filed in support of the writ petition. There is also no reference in the affidavit, filed in support of the writ petition, of the reasons why she chose not to join the post of Medical Officer pursuant to the proceedings dated 24.07.2017.

Mr. Lalit Belwal, learned Counsel for the petitioner, would submit that the attention of the Division Bench, which passed the order in WPSB No. 110 of 2018 & WPSB No. 112 of 2018 dated 01.03.2019, was not drawn to the earlier order of the Division Bench in WPSB No. 12 of 2018 dated 11.01.2018; and, since the order in WPSB No. 12 of 2018 dated 11.01.2018 is of a Coordinate Bench, the matter should be referred to a Full Bench in the light of the conflicting opinions of two Division Benches of this Court; since the Government had exempted the one year period of service, rendered by several Doctors as Senior Medical Officers, from the bond period, the petitioner should have been conferred such a benefit also.

In its order in WPSB No. 12 of 2018 dated 11.01.2018, the Division Bench noted that it was not in dispute that, of the two year bond period, the petitioners had served for a period of one year from 04.11.2016 to 03.11.2017; in terms of the bond they could not have been asked to serve for a further period of two years, overlooking the service of one year they had already rendered as a Senior Medical Officer in a Medical College; and they were kept idle for a period of four months.

The Division Bench was of the view that a decision should be taken by the Secretary, Medical, Health and Family Welfare, State of Uttarakhand in this regard and, accordingly, disposed of the writ petition directing the Secretary, Medical, Health and Family Welfare, State of Uttarakhand to consider the case of the petitioner for being released from the bond on payment of the proportionate amount in accordance with law; a decision should be taken within ten days from the date of production of a certified copy of the order; and they should consider the claim of the petitioners, that they were entitled to have four months counted towards service, as four months were spent by the petitioners without being offered appointment initially; after a period of one year again, there was delay in offering them appointment; and this should also be looked into as per law.

The petitioners, in the aforesaid case, wanted exclusion of the period of one year, from 04.11.2016 to 03.11.2017, as they had served as Senior Medical Officers in Medical Colleges. While it is true that the Division Bench, in its order in WPSB No. 110 & 112 of 2018 dated 01.03.2019, had held that this period of one year could also not be excluded, it is wholly unnecessary for us to dwell on this issue, in the present case, since the petitioner has, admittedly, not undergone the Senior Residency programme despite having been offered such appointment on 10.05.2018. As the respondents had issued her an appointment letter, as a Medical Officer in Primary Health Centre, Pilkhi, Tehri, on 24.07.2017 well within one month from the date on which she completed her post graduation in medical sciences on 30.06.2017, they cannot be said to have delayed offering her appointment. Failure on the part of the petitioner to join the said post, despite such an offer of appointment, would justify her not being discharged from the bond.

The petitioner does appear to have suppressed material and relevant facts, in the affidavit filed by her in support of the writ petition, and in having failed to disclose that she was offered appointment as a Medical Officer by the proceedings of the second respondent dated 27.07.2017. While we were initially inclined to initiate proceedings against her, for her act of suppression of the relevant and material fact of her being offered appointment vide letter dated 24.07.2017, we take a lenient view in the belief that her skills as a lady doctor, with a post graduation in medical sciences, can be better utilised to serve the poor and the needy in the hilly and remote areas of the State of Uttarakhand.

We, instead, issue the following directions. The petitioner is permitted to report to the Director General (i.e. the second respondent) on or before 15.07.2019, for being posted as a Medical Officer for a period of two years in the hilly areas of the State. On the petitioner reporting for duty, the second respondent shall issue necessary orders appointing her as a Medical Officer, in any of the hilly regions of the State of Uttarakhand, for a period of two years. In case, the petitioner does not report for duty before the second respondent, on or before 15.07.2019, it is open to the respondents to take necessary action thereafter, in accordance with law, to recover the bond amount, along with interest, from her.

Subject to the aforesaid observations, the writ petition fails and is, accordingly, dismissed. No costs.