State Of HP And Others vs Dr. Rajeev Sandal And Another

M.S. Ramachandra Rao, CJ

This appeal is preferred by the appellants challenging the judgment dt. 29.03.2024 passed in CWP no.2862 of 2023.

The first respondent had filed the said Writ petition against the appellants and the second respondent who had denied him a No Objection Certificate to enable him to get recruited to the post of Assistant Professor (Medical Oncology/Clinical Hematology) in the second respondent institution.

The Background facts

The first respondent had completed his MBBS Course in 2008 and has been appointed as Medical Officer in 2009. Later he secured MD in Medicine from in the year 2015 from PGI Chandigarh. Thereafter he obtained a degree of Doctorate of Medicine in Clinical Hematology in the year 2020 from PGI Chandigarh.

On completion of his Doctorate of Medicine, he joined in IGMC Shimla in August, 2020 and was designated as Assistant Professor in Department of Radiotherapy. Thereafter, he was posted as Regular Assistant Professor in the Department of Radiotherapy in IGMC Shimla in the month of March, 2023.

Admittedly, the 1st respondent, while proceedings on study leave to pursue his higher studies had executed/submitted a bond dt.4.6.2017 to serve the State of Himachal Pradesh for 5 year after completion of his DM in Clinical Hematology course from PGIMER Chandigarh between 2016 to 2019. He was a sponsored candidate for the said course and he was sponsored by the State and was also paid leave salary in lieu of three years study leave by the Directorate of Health Services Himachal Pradesh as per the PG/SS policy. The period of the bond executed is five years after successful completion of the DM Clinical Hematology course. The said bond is filed as Annexure A-5 in the appeal and mandates that the bond is executed for Rs.40 lacs and in case, breach of the same, he would be liable to pay back to the State of Himachal Pradesh, the total expenditure by way of grant of stipend and the money spent by it in connection with the study at said institute PGIMER Chandigarh with interest.

The bond is in tune with the policy framed on 27.02.2019 called “the policy for Regulating the Admissions to Various Post Graduation and Super Specialty Courses in Medical Education” in the State of Himachal Pradesh.

The second respondent had advertised various posts, including one of Assistant Professor (Medical Oncology/Clinical Hematology) in October, 2022.

The first respondent applied for the said post and was found provisionally eligible.

Appellants no. 1 and 3, however, refused to grant NOC to him on the ground that he had already undertaken to serve the State of Himachal Pradesh and had furnished a bond or to forfeit the amount of the bound.

The order had been passed on 04.05.2023 by the first appellant that the first respondent’s request for issuance of NOC for the post of Assistant Professor in the second respondent’s institution was examined at the level of the Government, and after due consideration it was decided that the NOC may not be issued as it would affect Health services of the State very badly and that there was already deficiency of medical officers and specialties in the Health department.

The order of the learned Single Judge

When the petitioner filed CWP no. 2862 of 2023, the learned Single Judge allowed the same .

The learned Single Judge was of the opinion that the bond was required to be executed by a Medical Officer to serve the State of Himachal Pradesh for a specified number of years in case he avails of opportunity and proceeds on leave for post graduation or Super Speciality courses; that the bond was executed to serve the State and the 'State' had been defined in Clause 3.1.15 of the Policy as the State of Himachal Pradesh. He noted that the 'Government' was separately defined in Clause 3.1.15 as the Government of Himachal Pradesh. He held that the first respondent was seeking NOC to serve the AIMS at Bilaspur which falls in the State of Himachal Pradesh and it was not understandable as to how the proposed service of petitioner at AIIMS, Bilaspur will be in violation of the bond or Clause 6 of the Policy.

According to him, the second respondent institution was established with the purpose to provide best medical health care to the people of the State of Himachal Pradesh, and since the undertaking given by the first respondent was to serve the State of Himachal Pradesh, it would not be violated at all in case he serves at the second respondent’s institution because it is located within the State of Himachal Pradesh.

He also referred to cases of other persons similarly situated, including one Dr. Kuldeep Thakur to whom such NOC had been issued inspite of his executing a similar bond to serve the State of Himachal Pradesh in the second respondent’s institution.

The learned Single Judge held that there is no requirement to execute a bond to serve the State of Himachal Pradesh, therefore, the State of Himachal Pradesh can be served through any of the medical institutions situated within the geographical boundaries of the State. He therefore, held that the denial of the NOC by the appellants to the first respondent was without any lawful reason and since the second respondent had not recruited any one against the post of Assistant Professor on Clinical Hematology, he directed issuance of NOC to the first respondent by appellants. Reliance was also placed by the learned Single Judge on the judgment in Narender Singh vs. State of Haryana and others (2022) 3 SCC 286.

The present LPA

Assailing the same, this appeal is filed the appellants.

The learned Advocate General placed reliance on the judgment of the Supreme Court in Association of Medical Superspeciality Aspirants and Residents and others vs. Union of India and others. (2019) 8 SCC 607 and contended that such Bonds executed by employee Doctors to serve the State are binding and can be enforced.

In the said decision, the Supreme Court considered the similar challenge to the compulsory bond conditions imposed in the Super Speciality courses in various States in the country by certain aspirants who had executed such bonds for pursuit of post-graduate courses and Super Speciality courses.

Several contentions including contentions regarding (i) the jurisdiction of the State Government to insist on such a bond, (ii) violation of fundamental rights guaranteed to the Medical Officers under Articles 14, 19, 21 and 23, (iii) whether it is a contract for personal service which is prohibited from enforcement under Section 14 of the Specific Relief Act, 1963 and (iv) whether insisting on such bond would amount to a restraint on profession being contrary to Section 27 of the Indian Contract Act, 1972, were considered by the Supreme Court.

The Supreme Court held that the field of bonds requiring compulsory employment is not covered by any central legislation and the notifications issued by the State Government imposing a condition of execution of a compulsory bonds at the time of admission to post-graduate courses and Super Speciality courses cannot be said to be vitiated due to lack of authority or competence. It observed that huge infrastructure had to be developed and maintained for running medical colleges for post graduate and Super Speciality courses and the amount of fee charged from the students is meager in comparison to the private medical colleges, that reasonable stipends have also to be paid to the doctors, and the State Governments have taken into account the need to provide health care to the people. Therefore, the policy decision taken by the State Government to utilize the services of the doctors who are the beneficiaries of the government assistance to complete their education, was held to be not arbitrary or unreasonable.

It held that the compulsory bond would be executed by the appellant at the time of their admissions to Post Graduate courses and Super Speciality courses and the conditions imposed for admission to a medical college will not directly violate the right of an individual to carry on his profession.

It held that the right to carry on the profession would start on the completion of the course, and the condition had a connection with the professional activity of a doctor on completion of the course. But since the appellant had without any protest accepted the admission and executed the bonds, there is no violation of Article 19 (1) (g) of the Constitution.

It held that there is no violation of Article 21 of the Constitution because if there is a conflict between private interest with public interest, private interest had to take a back seat. It also mentioned that the right to life enshrined under Article 21 includes the right to health.

It held that the service rendered by the appellants in government hospitals would not fall under the expression “forced labour” violating Article 23 of the Constitution.

It held that the State Governments had made no attempt to enforce the contract entered into by them with the appellants through the service bonds, that there are no decree for specific performance of a contract of personal nature which would be granted by Court and the said contention was also held without any merit.

It also rejected the plea of the bonds being a restraint on the professional activity of the appellant and held that all the doctors who had executed compulsory bonds would be bound by the conditions contained therein.

This judgment had not been brought to the notice of the learned Single Judge by the appellants though it has a direct bearing on the issue which was being considered by the learned Single Judge. Had the said decision been brought to the notice of the learned Single Judge, the learned Judge would undoubtedly had followed the same.

The decision in Narender Singh’s case, (supra-1) cited by the learned Single Judge does not relate to the medical profession and the role it plays in the health care of the country. The said case related to a District Elementary Education Officer who could not produce any NOC from his employer at the time of interview. The said decision could not have been of any assistance to the first respondent.

Having regard to the decision in Association of Medical Superspeciality Aspirants, (supra-2) which is binding on the first respondent, appellants, and also this Court, we hold that the bond executed by the first respondent to serve the State of Himachal Pradesh would continue for a period of five years from the date he completed the course of DM in Clinical Hematology from 2020 from PGI Chandigarh, and he cannot wriggle out of the same by raising untenable pleas.

Accordingly, the appeal is allowed and the order of the learned Single Judge is set aside. No costs.