State Of Uttarakhand & Others vs Ravisha Choudhary

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed in Writ Petition (M/S) No.394 of 2019 dated 23.05.2019 wherein the learned Single Judge, relying

on an earlier order passed by this Court in Writ Petition (M/S) No.2557 of 2013 dated 25.08.2015, disposed of the Writ Petition in terms thereof.

In his order, in Writ Petition (M/S) No.2557 of 2013 dated 25.08.2015, the learned Single Judge, following the judgment of the Supreme Court in

Anand S. Biji vs. State of Kerala: JT 2001 (10) SC 121, and the judgment of this Court in Lokman Singh and others Vs. State of

Uttarakhand (order in Writ Petition (M/S) No. 1845 of 2009 dated 09.04.2015), held that the submission of a bond was itself without

jurisdiction; and, therefore, the respondents-writ petitioners cannot be compelled to serve the State Government for five years or to pay damages. The

learned Single Judge allowed the Writ Petition, and directed the appellants herein not to compel the respondents-writ petitioners to serve the State

Government compulsorily for five years or to pay damages to the tune of Rs.30,00,000/-. The learned Single Judge, however, opined that it was open

to the respondents-writ petitioners, if they so desire, to serve the State Government on the terms and conditions of the State Government. Aggrieved

thereby, the State Government is now in appeal before us.

Mr. Pradeep Joshi, learned Standing Counsel appearing for the State Government, would draw our attention to the Government Order dated

09.09.2009 whereby both the Principals, of the Government Medical Colleges at Srinagar and Haldwani, were informed that, even for the 15% All

India Quota students, the concessional fees of Rs.15,000/- would be applicable on their executing a bond on condition that they served, in the hilly

areas of the State of Uttarakhand, for a minimum period of five years; otherwise they would be required to pay the regular fees of Rs.2,20,000/- per

annum; the respondent-writ petitioner had submitted a sworn affidavit, at the time of joining the medical college on 10.09.2012, that, after completion

of her under-graduate course, she would serve the hilly areas of the State of Uttarakhand for a minimum period of five years; even thereafter she had

furnished a bond on 15.12.2014 undertaking to serve the hilly regions of the State of Uttarakhand for five years; and, in the light of the order passed by

a Division Bench of this Court in Special Appeal No.224 of 2019 and batch dated 31.07.2019, the respondent-writ petitioner must either pay the said

sum of Rs.30.00 lacs or serve the hilly regions of the State of Uttarakhand for a minimum period of five years.

On the other hand Mr. Lalit Belwal, learned counsel for the respondent-writ petitioner, would submit that the order passed by the Division Bench of

this Court, in Special Appeal No.224 of 2019 and batch dated 31.07.2019, related to admission of students to under-graduate medical courses, in the

year 2011-12 and 2013-14, in the Government Medical College, Haldwani; none of the respondents, in those batch of Special Appeals, were students

from the Government Medical College, Srinagar; in the prospectus issued by the Government Medical College, Haldwani, the students, who secured

admission under the 15% All India Quota, were informed that, as per Government Orders/Rules, Rs.15,000/- per annum with a bond, and

Rs.2,20,000/- per annum without a bond, would be the tuition fees; the prospectus issued by the Govenrment Medical College, Srinagar merely

informed students, who secured admission in the 15% All India Quota for the MBBS/BDS courses in the year 2011-12, that the tuition fees would

only be Rs.15,000/- per annum; the very same prospectus was issued even for the academic year 2012-13; these students were never informed that

the fees of Rs.15,000/- per annum, which they were asked to pay, was the concessional fees; if they had been informed that Rs.15,000/- was the

concessional fees, and not the regular fees, they may not even have joined the MBBS course at Srinagar; the affidavit furnished to the college, by the

respondent-writ petitioner, on 10.09.2012 was on the eve of her taking admission to the MBBS course; the respondent-writ petitioner had no choice

other than to submit the affidavit, as otherwise she would not have been admitted into the MBBS course at all; likewise, on the eve of her

examinations to be held in December, 2014, the respondent-writ petitioner was again asked to furnish a bond which she had proforce to sign on

15.12.2014; a bare reading of the said bond would show that it applies to students selected under the Uttarakhand Pre-Medical Test (UPMT); the law

declared by the Division Bench, with respect to students who did their under-graduation medical course from the Government Medical College,

Haldwani, would not apply to students who have undergone their under-graduate medical course from the Government Medical College, Srinagar; the

respondent-writ petitioner was not informed that the fees paid by her was a concessional fee, and not the regular fees; and, having led her to believe

that the fees paid by her was the regular fees, the appellants cannot now contend that the fees paid by her was the concessional fees, and not the

regular fees, and she should either serve in the hilly areas for five years or pay the bond amount.

Before examining the submissions put forth by Mr. Lalit Belwal, learned counsel for the respondent-writ petitioner, on whether the order of the

Division Bench, in Special Appeal No.224 of 2019 and batch dated 31.07.2019, is inapplicable to the case on hand, it is necessary for us to briefly take

note of the law declared by the Division Bench therein.

In its order in Special Appeal No.224 of 2019 and batch dated 31.07.2019, a Division Bench of this Court took note of Clause 5 of the Information

Bulletin (Counseling) AIPMT 2011, issued by the Government of India, which stipulated the conditions relating to bond/fee structure and rural

services; Clause 5(ii) of said bulletin stipulated that any additional State condition, pertaining to Bond/Rural service, would not be applicable to the All

India Quota candidates; and, as per the directions of the Supreme Court, it was not open to any State to fix any additional eligibility criteria in case of

candidates who fell under the All India Quota. The Division Bench had after considering the judgment of the Supreme Court in Harsh Pratap Sisodia

vs. Union of India: (1999) 2 SCC 575, and in Anand S. Biji vs. State of Kerala: JT 2001 (10) SC 121, opined that what was faulted by the Supreme

Court, in these judgments, was the varying conditions imposed by different State Governments which had resulted in lack of uniformity for students

selected for admission in the 15% All- India quota and consequently while some of those candidates, who were given admission in a Government

Medical College in a particular State, were required to fulfill the conditions stipulated by that State Government, other candidates, who had secured

admission in Government Medical Colleges in some other State where such a condition was not prescribed, were not obliged to comply with such a

requirement; and it is in this context that the observations of the Supreme Court, in Harsh Pratap Sisodia vs. Union of India: (1999) 2 SCC 575 and

Anand S. Biji vs. State of Kerala: JT 2001 (10) SC 121, must be read.

The Division Bench, thereafter, took note of Clause 5(i) and (ii) of the Information Bulletin (Counseling) AIPMT 2011, and observed that it was

evident, from Clause 5(i), that the condition relating to deposit of fee would vary from State to State, College to College and University to University,

and shall be as per the Rules and Regulations of the respective State/College/University concerned; what was prohibited, in terms of Clause 5(ii) of

the said Bulletin, was imposition of any additional State condition pertaining to Bond/Rural service to candidates admitted, under the All-India Quota, in

the light of the law declared by the Supreme Court in Anand S. Biji vs. State of Kerala: JT 2001 (10) SC 121; the additional conditions, referred to in

Clause 5(ii) of the said Bulletin, were in addition to those stipulated in Clause 5(i) which related to the fee structure; in the prospectus issued to

candidates, who secured admission for the year 2011-12 in the Government Medical College, Haldwani, it was specifically stated that as per the

Government Orders/Rules, if a candidate executed a bond, the tuition fee was Rs.15,000/- annually; and if a candidate does not wish to execute a

bond, the tuition fee was Rs.2,20,000/- annually; a similar prospectus was issued with respect to admissions made in the year 2013-14 where the fee

structure was specified as Rs.40,000/- annually on execution of a bond; and Rs.4,00,000/- annually on non-execution of a bond; and all the

respondents-writ petitioner, who had secured admission in the Government Medical College at Haldwani in Nainital district, were made aware of the

differential fee structure in terms of the Government Orders issued by the State Government.

The Division Bench opined that the Government Orders made it clear that, since the State of Uttarakhand consisting largely of hilly areas, the State

Government was not in a position to cater to the medical needs of all its people; and, with a view to provide adequate health and medical services to its

populace, the State Government was offering concessional fees to such of those students who were willing to execute a bond to serve in the hilly and

rural areas of the State, for a period of five years, after completion of their under-graduate medical course; others, who did not wish to render services

in the hilly and rural areas of the State of Uttarakhand, were required to pay the regular fees which was Rs.2,20,000/- per annum in the year 2011-12,

and was Rs.4,00,000/- per annum in the year 2013-14; the respondents-writ petitioners were made aware by the Information Bulletin (Counseling)

AIPMT 2011, issued by the Government of India, that the fee structure was State/College/University specific; and by the prospectus, issued by the

Government Medical College, Haldwani, all the respondents-writ petitioners were informed of the differential fee structure ie regular fees for those

who did not wish to serve in hilly and rural areas of the State after completion of their under-graduate medical course, and a concessional fee for

those who were willing to do so.

The Division Bench, thereafter, opined that what was faulted by the Supreme Court, in Harsh Pratap Sisodia vs. Union of India: (1999) 2 SCC 575

and Anand S. Biji vs. State of Kerala: JT 2001 (10) SC 121, was the additional stipulation of a bond; for example if the State Government had imposed

a condition that the candidates securing admission should furnish a bond to serve in the hilly and rural areas of the State for a period of five years,

despite paying the regular tuition fee of Rs.2,20,000/- / Rs.4,00,000/- per annum, imposition of any such condition would have been illegal; in the

present case, the Government of Uttarakhand had, by its Orders, informed all eligible applicants that the State Government was willing to provide them

medical education at a concessional fee, if they were willing to serve the hilly and rural areas of the State, for a period of five years after completing

their MBBS course; if they did not wish to avail this benefit, they would then be required to pay the regular fees applicable to all other similarly placed

candidates; the respondents-writ petitioners could not, while claiming the benefit of a concessional fee and having prosecuted their MBBS course at

the cost of the public exchequer, turn around and contend that merely because they were granted admission, in the 15% All-India Quota, they should

be extended the benefit of concessional fees without having to discharge the corresponding obligation to serve in the hilly and rural areas, of the State

of Uttarakhand, for a period of five years, though this condition was applicable to all students who were admitted in the under-graduate medical

courses in the Government Medical Colleges of the State.

The Division Bench noted the submission, urged on behalf of the respondents-writ petitioners, that they had not been informed about the

differential fee structure during allotment of seats at New Delhi or that they would be required to pay a higher fee in case they did not execute a bond;

and if they had been made aware of the additional fee structure, during allotment of seats, they would not have opted to join the Government Medical

College at Haldwani. The Division Bench opined that this contention also necessitated rejection, since Clause 5(i) of the Information Bulletin

(Counseling) AIPMT 2011, had made all the candidates aware that the conditions relating to deposit and refund of fees, if any, may vary from State to

State, College to College and University to University; the respondents-writ petitioners, who were seeking admission in the Government Medical

College at Haldwani, were therefore obligated to ascertain the fee structure applicable in the said college before exercising their option for admission

to the said college; it was not in dispute that the prospectus issued by the Government Medical College, Haldwani makes the differential fee structure

explicit and, while informing candidates that in case they execute a bond they would be charged a total fee of Rs.15,000/- / Rs.40,000/- per annum,

they were also informed that, in case they chose not to execute a bond, they would then be required to pay the regular fees of Rs.2,20,000/- /

Rs.4,00,000/- per annum; the petitioners, having executed a bond and having prosecuted their MBBS course at a concessional fee of Rs.15,000/- /

Rs.40,000/-per annum, cannot now turn around and contend that they were unaware of the differential fee structure, and the State Government is

therefore disabled from recovering the said amount from them.

The Division Bench directed the appellants to offer all the respondents-writ petitioners employment, to serve in the hilly and rural areas of the

State of Uttarakhand, within six weeks from the date of the order; and observed that, in case they were willing to serve in the hilly and rural areas of

the State of Uttarakhand, it was open to them to join duty in terms of the offer of employment to be made by the State Government; and in case the

respondents- writ petitioners did not wish to exercise such an option, and did not join duty within the time stipulated in the offer to be made by the

appellant-State, it was open to the State Government to recover the differential fee amount, (ie Rs.2,20,000/- minus Rs.15,000/- per annum for

students who secured admission in the year 2012-13, and Rs.4,00,000/- minus Rs.40,000/- per annum for students who secured admission in the year

2013-14), along with interest at 18% per annum.

Since Mr. Lalit Belwal, learned counsel for the respondent-writ petitioner, seeks to make a distinction between students admitted in the

Government Medical College, Haldwani and those admitted in the Government Medical College, Srinagar, it is necessary for us to deal with the

submission put forth by the learned counsel. Before doing so, it is useful to take note of the proceedings dated 09.09.2009 issued by the Government of

Uttarakhand to the Principals of the Government Medical Colleges at Haldwani and Srinagar. In the said proceedings, it is stated that as Uttarakhand

was a hilly State, with most of the areas being remote/hard to reach in location, it was difficult to strengthen the Government medical facilities; it had

been decided that, for the welfare of the people, students taking admission from the All India Quota, in the Government Medical College, Srinagar and

the Uttarakhand Forest Hospital Trust, Haldwani (now Government Medical College, Haldwani), would be bonded after completion of the course to

work in remote and hilly for a duration of five years; these students, who were bonded for five years, would have to pay a subsidized academic fee of

Rs.15,000/- per annum to the medical college; the guidelines for affidavit/bonds would be as per Government Order dated 23.07.2007, and the terms

and condition would be in accordance with Government Order dated 04.08.2008; and those students, who did not file the affidavit/bonds would be

charged academic fees of Rs.2,20,000/- per annum.

Both the Principals of the Government Medical Colleges at Haldwani and Srinagar were directed, by the said proceedings dated 09.09.2009, to

comply with the said order. It is evident from the Government order dated 09.09.2009, and the earlier orders referred to therein dated 23.07.2007 and

04.08.2008, that a concessional fee of Rs.15,000/- was being provided even to students, admitted under the 15% All-India Quota, on condition that

they worked in remote/hilly areas of the State of Utttarakhand for five years; and this facility was being provided to strengthen the Government

medical facilities in the State, and for the welfare of the people.

While the Government Medical College, Haldwani had, in its prospectus, specifically stated, under the column ‘tuition fee’, that, as per the

Government Order/Rules, the tuition fees would be Rs.15,000/- per annum with a bond and Rs.2,20,000/- without a bond, the prospectus issued by the

Government Medical College, Srinagar only refers to the tuition fee as Rs.15,000/- per annum. It makes no reference to this fee being a concessional

fee, or that failure to furnish a bond would require the student to pay regular fees of Rs.2,20,000/- per annum. However all the students, who were

admitted in the Government Medical College, Srinagar, were called upon to submit an affidavit undertaking to work for a period of five years in the

remote/hilly areas of the State of Uttarakhand on completion of their under-graduate course, or to pay a sum of Rs.30,00,000/- as compensation.

The respondent-writ petitioner furnished such an affidavit on 10.09.2012 before she joined her MBBS course. Thereafter, on the eve of giving her

examination in December, 2014, she was again asked and, accordingly, she furnished a bond on 15.12.2014 to serve for a minimum period of five

years in the remote/hilly areas of the State of Uttarakand; and, on failure to do so, to pay a sum of Rs.30,00,000/-.

The respondent-writ petitioner has no doubt referred to the affidavit furnished by her on 10.09.2012, and the bond executed by her on 15.12.2014,

in her writ affidavit, and she contends that she was constrained to furnish such a bond as she was told that, if she did not furnish the bond, then the

procedure of admission would not be completed, and the admission would not be said to be ok; and she had furnished a fresh bond in November, 2014

because of office orders dated 02.11.2014 and 17.11.2014 directing all the MBBS students to sign a fresh bond or else the students would not be able

to appear in the examination.

Nothing prevented the respondent-writ petitioner, if she was really of the view that her being called upon to furnish such a bond was illegal, to

have immediately challenged its validity in appropriate legal proceedings. The very fact that the respondent-writ petitioner has now chosen to file the

present Writ petition, seeking a direction that she be treated as out of bond service and not be compelled to serve the State Government for a period of

five years as mentioned in the bond, would go to show that she could have availed her legal remedies even earlier. Having filed an affidavit even

before she joined the course, and signed a bond thereafter, the respondent-writ petitioner cannot now turn around and contend that she cannot be

asked to comply with the conditions of the bond on the specious plea that the prospectus makes no mention of the differential fee structure, or that

neither the affidavit nor the bond refer to such a differential fee.

Both the medical colleges at Srinagar and Haldwani are government institutions. The Government Order dated 09.09.2009 applies to both these

colleges. While the Principal of the Government Medical College, Haldwani was vigilant, and made a specific reference to the differential fee in the

prospectus, the Principal of the Government Medical College, Srinagar appears to have failed to inform the students, in the prospectus issued by the

college, regarding the differential fee structure, despite the specific directions of the State Government in its Order dated 09.09.2009. The question

which would necessitate examination is whether on the failure of the Principal to so specify in the prospectus, and despite having submitted an

affidavit at the time of joining the course and having furnished a bond two years thereafter, before giving her examination in December, 2014, the

respondent-writ petitioner, who had completed her five year medical course from the Government Medical College, Srinagar, can now be permitted to

walk away on payment of a meager sum of Rs.15,000/- per annum as fees, without discharging the corresponding obligation of having to serve, in the

remote/hilly areas of the State of Uttarakhand, for a period of five years post completion of her MBBS course.

In this context, it must be borne in mind that the jurisdiction which the High Court exercises, under Article 226 of the Constitution of India, is only

in larger public interest and not merely on a legal point being made out. The interest of justice and the public interest coalesce. They are very often

one and the same. The Court has to weigh public interest vis-Ã -vis private interest while exercising its discretionary powers. (Ramniklal N. Bhutta

v. State of Maharashtra : AIR 1997 SC 1236; Manohar Lal v. Ugrasen & others : (2010) 11 SCC 557; Master Marine Services Pvt.

Ltd v. Metcalfe and Hodgkison Pvt. Ltd : (2005) 6 SCC 138; and Air India Ltd. v. Cochin International Airport Ltd. : (2000) 2 SCC

617). This Court would refrain from interference save larger public interest. A writ of mandamus and a writ of certiorari are discretionary, unlike a

writ of habeas corpus which can be sought as a matter of right. One of the principles inherent is that the exercise of discretionary power should be for

the sake of justice and, if interference would result in greater harm to society, then this Court may refrain from exercising the power. ( State of

Maharashtra v. Prabhu : (1994) 2 SCC 481).

Even when some defect is found in the decisionâ€"making process, this Court would exercise its discretion with great caution and only in

furtherance of public interest, and not merely on the making out of a legal point. Only when it comes to the conclusion that overwhelming public

interest requires interference, should it intervene. (Air India Ltd. v. Cochin International Airport Ltd. : (2000) 2 SCC 617). One of the

limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would

not allow itself to be turned into a Court of appeal to set right supposed errors of law which do not occasion injustice. (Sangram Singh v. Election

Tribunal, Kotah : AIR 1955 SC 425).

The very object of providing the concessional fee structure of Rs.15,000/- per annum is, as is evident from the Government Order dated

09.09.2009, in the larger public interest of providing adequate medical facilities in the hilly and remote areas of the State of Uttarakhand, and thereby

ensure that the medical needs of the people, of these regions, are met. Larger public interest was sought to be served by providing medical education

to student in these Government Medical Colleges, at a concessional fee, in the belief that their services can be utilized later for the benefit of the poor

and the needy in the hilly and remote areas of the State of Uttarakhand. The respondent-writ petitioner has prosecuted the course, and has completed

her medical education, on payment of a concessional fee at the cost of public exchequer. While she may be justified in her submission that the

prospectus, issued by the Government Medical College, Srinagar, ought to have mentioned the differential fee structure, she also had the responsibility

to, at least, inquire, when she submitted an affidavit before joining and later when she furnished a bond, why she was being asked to do so, in which

event she would, undoubtedly, have come to know of the differential fee structure. The bonafides of the respondent-writ petitioner is not free from

doubt. Having chosen, on her own volition, to submit an affidavit before joining the course, and a bond later in 2014, the respondent-writ petitioner has

waited, till she completed her under-graduate course in medicine, before invoking the jurisdiction of this Court, under Article 226 of the Constitution of

India, questioning the action of the respondents in seeking to enforce the conditions which the respondent-writ petitioner had agreed to abide by in her

affidavit/bond.

The fact that the concessional fee of Rs.15,000/- was applicable to students, admitted under the 15% All-India Quota in both the Government

Medical Colleges at Srinagar and Haldwani, is evident from a bare reading of the Government Order dated 09.09.2009. While the State Government

should, undoubtedly, take action against the Principal, Government Medical College, Srinagar, for his failure to be vigilant, and in not ensuring that the

prospectus disclosed the differential fee structure, that would not justify interference in favour of a student who has undergone her under-graduate

medical course at the cost of the public exchequer, and to permit her to avoid serving in the hilly/remote areas of the State of Uttarakhand post

completion of her under-graduate medical course and, at the same time, avoid making payment of differential fees. That would amount to permitting

the respondent-writ petitioner to enrich herself at the cost of public exchequer, without discharging the corresponding obligations which she had agreed

to when she submitted her affidavit, and then her bond. As that would be against larger public interest, we see no reason to do so.

We are satisfied, therefore, that the order under appeal must be, and is accordingly, set-aside. The Special Appeal is allowed. The appellants

herein shall offer the respondent-writ petitioner employment, to serve in the hilly and rural areas of the State of Uttarakhand, within six weeks from

today. In case the respondent-writ petitioner is willing to serve in the hilly areas of the State of Uttarakhand, it is open to her to join duty in terms of

the offer of employment to be made by the State Government. In case the respondent-writ petitioner does not wish to exercise such an option, and

does not join duty within the time stipulated in the offer to be made by the appellants-State, it is open to the State Government to recover the

differential fee amount, (ie Rs.2,20,000/- minus Rs.15,000/- per annum), for the duration of the MBBS course, along with interest @18% per annum,

from the respondent-writ petitioner. No costs.