ASSOCIATION OF MEDICAL SUPER SPECIALITYASPIRANTS AND RESIDENTS & ORS. versus UNION OF INDIA & OTHERS on 19 August 2019

ASSOCIATION OF MEDICAL SUPER SPECIALITYASPIRANTS AND RESIDENTS & ORS.

v.

UNION OF INDIA & OTHERS

(Writ Petition (Civil) No.376 of 2018)

AUGUST 19, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Constitution of India: Art.162; Seventh Schedule, List I,Entries 63 to 66; List III Entry 25 – Jurisdiction of the StateGovernment – Notification issued by State Government forcompulsory execution of bond by the candidates at the time ofadmission to post-graduate courses and super speciality coursesproviding that they shall serve the State Government for certainstipulated period on successful completion of courses failing whichthey would be liable to recompense the State Government –Competence of State Government to issue such notification – Held:Entry 66 of List I of the 7[th] Schedule to the Constitution refers tocoordination and determination of standards in institutions for highereducation or research and scientific and technical institutions –Entry 25 of List III of the 7[th] Schedule deals with education, includingtechnical education, medical education and universities, subject tothe provisions of entries 63, 64, 65 and 66 of List I – Legislationscan be made by the State Legislature relating to medical educationsubject to the legislation made by the Parliament – The MedicalCouncil of India Act governs the field of medical education in thiscountry – Admittedly, there is no provision in the Medical Councilof India Act touching upon the subject matter of compulsory bonds– Therefore, the States are free to legislate on the subject matter ofmedical bonds – Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature– Even in the absence of any legislation, the State Government hasthe competence to issue executive orders under Art.162 on mattersover which the State legislature has the power to legislate – Thus,Notifications issued by the State Governments imposing a conditionof execution of compulsory bonds at the time of admission to post-graduate courses and super speciality courses cannot be said to be

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Avitiated due to lack of authority or competence – Medical Councilof India Act.

Constitution of India: Art.14 – Notification issued by StateGovernment for compulsory execution of bond at the time ofadmission of candidates to post-graduate courses and superBspecialty courses providing that they shall serve the StateGovernment for certain stipulated period on successful completionof courses failing which they will be liable to recompense the StateGovernment – Whether violated fundamental rights and is arbitrary– Held: Running medical colleges with post-graduate and superspeciality courses requires huge infrastructure – However, theCamount of fees charged from the students is meagre in comparisonto the private medical colleges – The doctors are to paid reasonablestipend – Government hospitals run by the State are duty bound toextend medical assistance for preserving human life – Failure onthe part of a Government hospital to provide timely medical treatment Dto a person in need of such treatment results in violation of his rightguaranteed under Art.21 of the Constitution – Consequently, a policydecision taken by the State Governments to utilize the services ofdoctors who were beneficiaries of Government assistance tocomplete their education cannot be termed arbitrary.

EConstitution of India: Art.14 – Notifications issued by theState Governments imposing a condition of compulsory service anda default clause – Reasonableness of – Held: Notifications imposinga condition of compulsory service and a default clause are per senot unreasonable – However, the period of compulsory serviceand the exit should be reasonable – State Governments and ArmedFForces Medical College are directed to consider imposing thecondition of compulsory service period of two years in default ofwhich the Doctors would recompense the Government by payingRs. 20 Lakhs.

Constitution of India: Arts.19(1)(g), 19(6) – Right to life andGliberty – Right to take decisions relating to profession – Accordingto the Appellants, the right to carry on their profession guaranteedby Art.19(1)(g) is violated by the compulsory bonds and that anyrestriction on their right to carry on their profession by the StateGovernment can be made only by a “law” as per Art. 19(6) of theHConstitution – Held: The compulsory bond executed by the Appellants is at the time of their admissions into post-graduate andsuper speciality courses – Conditions imposed for admission to amedical college will not directly violate the right of an individual tocarry on his profession – The right to carry on the profession wouldstart on the completion of the course – At the outset, there is nodoubt that no right inheres in an individual to receive highereducation – Violation of a right guaranteed under Art.19(1)(g)does not arise in a case pertaining to admission to a college – Thecondition that is imposed has a connection with the professionalactivity of a doctor on completion of the course – However, theAppellants have, without any protest, accepted the admissions andexecuted the compulsory bonds – Appellants have not succeeded intheir attempt of assailing the Notifications for being violative ofArt.19(1)(g) of the Constitution.

Constitution of India: Arts.21, 47 – Right to life – Art.21imposes an obligation on the State to safeguard the right to life ofevery person – Preservation of human life is thus of paramountimportance – The Government hospitals run by the State and theMedical Officers employed therein are duty bound to extend medicalassistance for preserving human life – In a welfare State, it is theobligation of the State to ensure the creation and the sustaining ofconditions congenial to good health – Art.47 reiterates theconstitutional obligation imposed on the State to improve publichealth.

Constitution of India: Art.21 – Right to live with dignity –Right to life enshrined in Art.21 cannot be restricted to mere animalexistence – It means something much more than just physical survival – The right to life includes the right to live with human dignity andall that goes along with it, namely, the bare necessaries of life suchas adequate nutrition, clothing and shelter, and facilities for reading,writing and expressing oneself in diverse forms, freely moving aboutand mixing and commingling with fellow human beings – Dignity isthe core which unites the fundamental rights because thefundamental rights seek to achieve for each individual the dignityof existence – The State’s obligations are not satisfied solely byrefraining from imposing limitations on the right to human dignity –State must also take action to protect human dignity and to facilitateits realization – The constitutional right to dignity is intended to A

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Constitution of India:Art.23 – Whether the conditions of thebond per se amount to ‘forced labour’ and thus violative of Art.23(1)– Appellants who are required to work for a short period on a decentBstipend cannot complain that they are made to perform ‘forcedlabour’, especially after they took an informed decision to availthe benefits of admission in government medical colleges andreceived subsidized education – By no means, the service renderedby the Appellants in Government hospitals would fall under theexpression of ‘forced labour’ – Art.23(2) enables the StateCGovernments to require the Appellants to do compulsory service inthe Government hospitals which is undoubtedly for the benefit ofthe public.

Constitution of India: Art.47 – Right to health is integral tothe right to life – Government has a constitutional obligation toDprovide health facilities – Art.47 reiterates the constitutionalobligation imposed on the State to improve public health – It is forthe State to secure health to its citizens as its primary duty – Nodoubt, the Government is rendering this obligation by openingGovernment hospitals and health centers, but in order to make itEmeaningful, it has to be within the reach of its people, as far aspossible, to reduce the queue of waiting lists, and it has to provideall facilities to employ best of talents and tone up its administrationto give effective contribution, which is also the duty of theGovernment – The immediate need of the deprived sections of thesociety to have proper health care is the reason behind theFGovernment policy of imposing a condition of compulsory serviceand a default clause – The objective of the policy is to ensure thatspecialist health care is extended to the have-nots also – The rightthat is claimed by the Appellants is to make an individual choice tocarry on their profession which might be hindered by the policyGdecision of the Government – On the other hand, the basic ideabehind the Government’s decision is larger public interest – Rightto life guaranteed by Art.21 means right to life with human dignity– While balancing communitarian dignity vis-à-vis the dignity ofprivate individuals, the scales must tilt in favour of communitariandignity – The laudable objective with which the State GovernmentsH

ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS ANDRESIDENTS v. UNION OF INDIA

have introduced compulsory service bonds is to protect thefundamental right of the deprived sections of the society guaranteedto them under Art.21 – The contention of the Appellants that theirrights guaranteed under Art.21 have been violated is rejected.

Specific Relief Act, 1963: s.14 – Contract of Personal Service– Prohibition of specific performance of contract for personalservice – Held: s.14 of the Specific Relief Act prohibits theenforcement of contracts of personal service – It is trite law thatCourts do not ordinarily enforce performance of contracts ofpersonal character, such as a contract of employment – None ofthe State Governments made an attempt to enforce the contractsentered into by them with the appellants through the service bonds– Constitution of India.

Contract Act, 1872: s.27 – Restraint on Profession – Plea ofthe Appellants that compulsory bonds placed a restraint on theirprofession and thus, would be contrary to s.27 of the Contract Act– Held: A contract entered into by Appellants to serve thegovernment for a few years under reasonable terms cannot bedescribed as one in restraint of trade – The conditions of compulsorybonds for admission to post-graduate and super-Speciality coursesin government medical colleges are not in violation of s.27 of theContract Act – All the Doctors who have executed compulsory bondsshall be bound by the conditions contained therein – Taking noteof the fact that certain State Governments have rigid conditions inthe compulsory bonds to be executed by the Appellants and the feltneed of uniformity in the matter pertaining to the compulsory bonds,suitable steps should be taken by the Union of India and the MedicalCouncil of India to have a uniform policy regarding the compulsoryservice to be rendered by the Doctors who are trained in governmentinstitutions – Constitution of India.

Dismissing the writ petitions and appeals, the Court HELD: I. Jurisdiction of the State Government:

1. Entry 66 of List I of the 7[th] Schedule to the Constitutionrefers to coordination and determination of standards ininstitutions for higher education or research and scientific andtechnical institutions. Entry 25 of List III of the 7[th] Schedule dealswith education, including technical education, medical education A

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Aand universities, subject to the provisions of entries 63, 64, 65and 66 of List I. Legislations can be made by the State Legislaturerelating to medical education subject to the legislation made bythe Parliament. The Medical Council of India Act governs thefield of medical education in this country. Admittedly, there is noprovision in the Medical Council of India Act touching upon theBsubject matter of compulsory bonds. Therefore, the States arefree to legislate on the subject matter of medical bonds.Executive authority of the State Government is co-extensive withthat of the legislative power of the State Legislature. Even in theabsence of any legislation, the State Government has theCcompetence to issue executive orders under Article 162 of theConstitution on matters over which the State legislature has thepower to legislate. The field of bonds requiring compulsoryemployment is not covered by any Central Legislation. Therefore,the submissions made on behalf of the Appellants that the Stateslacked competence to issue the notifications as the field isDoccupied are rejected. [Para 17] [1035-G-H; 1036-A-C]Violation of Fundamental Rights: Article 14 :

Arbitrariness and reasonableness

2.1 Huge infrastructure has to be developed and maintainedEfor running medical colleges with post-graduate and superSpeciality courses. The amount of fees charged from the studentsis meagre in comparison to the private medical colleges.Reasonable stipend has to be paid to the doctors. Above all, theState Governments have taken into account the need to provideFhealth care to the people and the scarcity of super specialists intheir States. Consequently, a policy decision taken by the StateGovernments to utilize the services of doctors who werebeneficiaries of Government assistance to complete theireducation cannot be termed arbitrary. Also, Notifications imposinga condition of compulsory service and a default clause are per seGnot unreasonable. However, the period of compulsory serviceand the exit should be reasonable. The State Governments andthe Armed Forces Medical College are directed to considerimposing the condition of compulsory service period of two yearsin default of which the Doctors shall recompense the GovernmentHby paying Rs. 20 Lakhs. [Paras 18-19] [1036-H; 1037-A-B, G-H]

Article 19:

2.2 The compulsory bond executed by the Appellants is atthe time of their admissions into post-graduate and superSpeciality courses. Conditions imposed for admission to a medicalcollege will not directly violate the right of an individual to carryon his profession. The right to carry on the profession wouldstart on the completion of the course. At the outset, there is nodoubt that no right inheres in an individual to receive highereducation. Violation of a right guaranteed under Article 19(1)(g)does not arise in a case pertaining to admission to a college.There is no doubt, that the condition that is imposed has aconnection with the professional activity of a doctor on completionof the course. However, the Appellants have, without any protest,accepted the admissions and executed the compulsory bonds.Execution of bonds is part of a composite package. TheAppellants have not been able to succeed in assailing theNotifications for being violative of Article 19(1)(g) of theConstitution. [Para 20] [1038-C-E]

Article 21

Article 21

2.3 Article 21 of the Constitution of India imposes anobligation on the State to safeguard the right to life of everyperson. Preservation of human life is thus of paramountimportance. The Government hospitals run by the State and theMedical Officers employed therein are duty bound to extendmedical assistance for preserving human life. Failure on the partof a Government hospital to provide timely medical treatment toa person in need of such treatment results in violation of his rightguaranteed under Article 21 of the Constitution. Therefore, in awelfare State it is the obligation of the State to ensure the creationand the sustaining of conditions congenial to good health. Article47 of the Constitution reiterates the constitutional obligationimposed on the State to improve public health. It is for the Stateto secure health to its citizens as its primary duty. No doubt theGovernment is rendering this obligation by opening Governmenthospitals and health centers, but in order to make it meaningful,it has to be within the reach of its people, as far as possible, toreduce the queue of waiting lists, and it has to provide all facilitiesto employ best of talents and tone up its administration to give A

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Aeffective contribution, which is also the duty of the Government.[Paras 21-22, 25] [1039-B-C, G; 1040-A]

Akhil Bharatiya Soshit Karamchari Sangh v. Union ofIndia (1981) 1 SCC 246 : [1981] 2 SCR 185;PaschimBanga Khet Mazdoor Samity v. State of West BengalB(1996) 4 SCC 37 : [1996] 2 Suppl. SCR 331;State ofPunjab v. Ram Lubhaya Bagga (1998) 4 SCC117:[1998] 1 SCR 1120 ;Union of India v. MoolchandKhairati Ram Trust. (2018) 8 SCC 321 : [2018] 7 SCR939;Kharak Singh v. State of U.P. AIR 1963 SC 1295:[1964] SCR 332 ; Vincent Panikurlangara v. Union ofCIndia(1987) 2 SCC 165: [1987] 2 SCR 468- relied on.

2.4 Right to health is integral to the right to life.Government has a constitutional obligation to provide healthfacilities. The fundamental right to life which is the most preciousDhuman right and which forms the ark of all other rights musttherefore be interpreted in a broad and expansive spirit so as toinvest it with significance and vitality which may endure for yearsto come and enhance the dignity of the individual and the worthof the human person. The right to life enshrined in Article 21Ecannot be restricted to mere animal existence. It means somethingmuch more than just physical survival. The right to life includesthe right to live with human dignity and all that goes along with it,namely, the bare necessaries of life such as adequate nutrition,clothing and shelter, and facilities for reading, writing andexpressing oneself in diverse forms, freely moving about andFmixing and commingling with fellow human beings. Every actwhich offends against or impairs human dignity would constitutedeprivation pro tanto of this right to live and the restriction wouldhave to be in accordance with reasonable, fair and just procedureestablished by law which stands the test of other fundamentalGrights. To live is to live with dignity. The draftsmen of theConstitution defined their vision of the society in whichconstitutional values would be attained by emphasizing, amongother freedoms, liberty and dignity. So fundamental is dignity thatit permeates the core of the rights guaranteed to the individualby Part III of the Constitution. Dignity is the core which unitesH

the fundamental rights because the fundamental rights seek toachieve for each individual the dignity of existence. The State’sobligations are not satisfied solely by refraining from imposinglimitations on the right to human dignity. The State must alsotake action to protect human dignity and to facilitate its realization.[Paras 26-28] [1040-B-F]

State of Punjab & Ors. v. Mohinder Singh Chawla(1997) 2 SCC 83:[1996] 10 Suppl. SCR 279; FrancisCoralie Mullin v. Administrator, Union Territory ofDelhi,(1981) 1 SCC 608: [1981] 2 SCR 516- relied on.

2.5 The positive obligation of the State to uphold the dignityof a larger section of the society is to protect the rights conferredon them by Article 21 of the Constitution. The immediate needof the deprived sections of the society to have proper health carewas the reason behind the policy decision of the Government.The objective of the policy is to ensure that specialist health careis extended to the have-nots also. [Para 30] [1041-D]

K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 :[2017] 10 SCR 569 - followed.

2.6. The right that is claimed by the Appellants is to makean individual choice to carry on their profession which might behindered by the decision of the Government. On the other hand,the basic idea behind the Government’s decision is larger publicinterest. Private interest has to take a backseat when pittedagainst public interest. [Para 31] [1041-F]

Mr. X v. Hospital ‘Z’, (1998) 8 SCC 296 : [1998] 1Suppl. SCR 723;Sayyed Ratanbhai Sayeed (D) thr.LRs & ORs.v. Shirdi Nagar Panchayat & Anr. (2016) 4SCC 631 : [2016] 11 SCR 476 - relied on.

2.6 The Universal Declaration of Human Rights (UDHR)recorded in the Preamble its recognition of the inherent dignityand of the equal and inalienable rights of all members of the humanfamily as the foundation of freedom, justice and peace. TheInternational Covenant on Economic, Social and Cultural Rights(ICESCR) recognizes the right of every person to the enjoyment

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Aof the highest attainable standard of physical and mental health.ICESCR mandates the States Parties to achieve full realizationof the aforementioned right through the creation of conditionswhich would assure to all, medical service and medical attentionin the event of sickness, inter alia. Right to life guaranteed byArticle 21 means right to life with human dignity. CommunitarianBdignity has been recognised by this Court. While balancingcommunitarian dignity vis-à-vis the dignity of private individuals,the scales must tilt in favour of communitarian dignity. Thelaudable objective with which the State Governments haveintroduced compulsory service bonds is to protect the fundamentalCright of the deprived sections of the society guaranteed to themunder Article 21 of the Constitution of India. The contention ofthe Appellants that their rights guaranteed under Article 21 ofthe Constitution of India have been violated is rejected.[Paras 32-33] [1042-C-F]D2.7 Whether the conditions of the bond per se amount to‘forced labour’ and thus violative of Article 23 (1) of theConstitution. The Appellants who are required to work for ashort period on a decent stipend cannot complain that they aremade to perform ‘forced labour’, especially after the Appellants have taken an informed decision to avail the benefits of admissionEin government medical colleges and received subsidizededucation. By no means, the service rendered by the Appellantsin Government hospitals would fall under the expression of ‘forcedlabour’. Article 23 (2) of the Constitution enables the StateGovernments to require the Appellants to do compulsory serviceFin the Government hospitals which is undoubtedly for the benefitof the public. [Paras 35-36] [1043-A-C, E]

Robertson v. Baldwin165 U.S. 275 (1897) ; Butler v.Perry(1916), 240 U.S. 328, 329 - referred to

3. Contract of Personal ServiceG

Section 14 of the Specific Relief Act, 1963 prohibits theenforcement of contracts of personal service. It is trite law thatCourts do not ordinarily enforce performance of contracts ofpersonal character, such as a contract of employment. Specificperformance of contract for personal service is not permissibleH

under the Specific Relief Act, therefore, there cannot be a decreefor specific performance of a contract of personal nature. Noneof the State Governments have made an attempt to enforce thecontracts entered into by them with the Appellants through theservice bonds. The compulsory bonds fall foul of the Specific ReliefAct. [Paras 37-38] [1043-F; 1044-C]

Rigby v. Connol (1880) 14 Ch D 482 - referred to

4. Restraint on Profession

A contract entered into by Appellants to serve thegovernment for a few years under reasonable terms cannot bedescribed as one in restraint of trade. The conditions ofcompulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not inviolation of Section 27 of the Indian Contract Act, 1872. All theDoctors who have executed compulsory bonds shall be bound bythe conditions contained therein. [Paras 39-40] [1044-F-H;1045-A]

Esso Petroleum v. Harper’s Garage (Stourport) Ltd.1967 1 All ER 699 - referred to.

5. Uniform policy

Taking note of the fact that certain State Governments haverigid conditions in the compulsory bonds to be executed by theAppellants and the felt need of uniformity in the matter pertainingto the compulsory bonds, suitable steps should be taken by theUnion of India and the Medical Council of India to have a uniformpolicy regarding the compulsory service to be rendered by theDoctors who are trained in government institutions. [Para 41]

Harsh Pratap Sisodia v. Union of India (1999) 2 SCC575 : [1999] 1 SCR 466;Anand Biji v. State of Kerala.(2001) 6 SCC 665 : [2001] 2 Suppl. SCR 1; Dr.Pradeep Jain v. Union of India. (1984) 3 SCC 654:[1984] 3 SCR 942 ;Rai Sahib Ram Jawaya Kapur v.State of Punjab [1955] 2 SCR 225 ; Bhishambar DayalChandra Mohan v. State of Uttar Pradesh (1982) 1 SCC39 : [1982] 1 SCR 113;Dr. Vinod Shankarlal Sharmaa& Ors. v. The State of Maharashtra & Anr.(2013) AIRBom.1 ;People’s Union for Democratic Rights v. Union

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1022SUPREME COURT REPORTS

Aof India (1982) 3 SCC 235 : [1983] 1 SCR 456 ;Ch. Tikaramji v. State of Uttar Pradesh AIR 1966 SC676 ;Modern Dental College and Research Centre v.State of Madhya Pradesh (2016) 7 SCC 353 ;Esso Petroleum v. Harper’s Garage (Stourport) Ltd.19671 All ER 699- referred to.

B[1999] 1 SCR 466[2001] 2 Suppl. SCR 1C[1984] 3 SCR 942[1955] 2 SCR 225[1982] 1 SCR 113

Case Law Reference

referred toPara 5

CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition(Civil) No. 376 of 2018

Under Article 32 of The Constitution of India With Writ Petition (Civil) No. 946 of 2018, Civil Appeal Nos. 6379,6380, 6381, 6382, 6383-6385, 6386 of 2019.

Balaj Srinivasan,AAG, Huzefa Ahmedi, Prashanto Chandra Sen,Dr. Manish Singhvi, K. M. Natraj, Rakesh Dwivedi. Sr. Advs., TanvirNayar, Prashant Singh, Rohan Sharma, Praful Sinha, Krishnamohan K.Menon, Ms. Dania Nayyar, Sarim Naved, Kaustubh Singh, Atif Inam,Harsh Parashar, Ankit Goel, Ms. Radhika Gautam, Kunal Cheema,Milind Kumar, Rajan Kumar Churasia, Sanjay Kumar Tyagi, Ms. RekhaPandey, G. S. Makker, A. K. Sharma, Ms. Madhumita Bhattacharjee,K. V. Ramkumar, Ms. Jaswanthi, Arvind Kumar Sharma, GauravSharma, M/S. Plr Chambers And Co., Shishir Deshpande,Ms. Deepanwita Priyanka, Aniruddha P. Mayee, Ms. Ruchira Gupta,Salvador Santosh Rebello, Anurag Sharma, Shirir Deshpande, G. Prakash,Jishnu M. L, Ms. Priyanka Prakash, Ms. Beena Prakash, AbhinavMukerji, Ms. Pratishtha Vij, Ms. Bihu Sharma, Suhaan Mukerji,Ms. Astha Sharma, Ms. Sansriti Pathak, Ms. Kajal Dalal, Amit Verma,Prastut Dalvi, Ms. Dimple Nagpal, Srijin Choudhury, Sandeep, RajaChatterjee, Chanchal Kr. Ganguli, Piyush Sachdev, Ms. RunamoniBhuyan, Gaurav Sharma, Prateek Bhatia, Dhawal Mohan, PrasannaMohan, Ms. Ruchi Kohli, Shibashish Misra, Ashish Kumar Sinha, ChandanKumar Mandal, Ms. Aditi Parkhi, Advs. for the appearing parties.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

Leave granted.

1. The controversy in these cases pertains to the compulsory bondsto be executed for admission to post-graduate medical courses and superspeciality courses. The Association of Medical Super Speciality Aspirantsand Residents has filed Writ Petition (Civil) No.376 of 2018 seeking awrit of mandamus for quashing the compulsory bond conditions, asimposed in the super speciality courses by the States of Andhra Pradesh,Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra,

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AOrissa, Rajasthan, Tamil Nadu, Telangana and West Bengal respectively.A further direction is sought for returning the original mark-sheets,certificates and other documents retained by the respective Stateauthorities after the completion of the concerned speciality courses.2.Writ Petition (Civil) No.946 of 2018 is filed challenging theBNotification dated 10.06.2014 issued by the Government of West Bengalby which every post-graduate trainee was directed to execute anIndemnity Bond to serve the State Government for a period of threeyears after successful completion of post-doctoral/MD/MS course andfor a period of two years after successful completion of the PG Diplomacourse. If the trainees fail to serve the State Government as mentionedCabove, they shall be liable to recompense the State Government a penaltyamount of Rs.10 Lakhs for each defaulting year. The Appellants seekrelease of original documents without insisting on the payment of Rs.30Lakhs as envisaged by the Notification dated 10.06.2014.

3. Notifications issued by the Department of Health and FamilyDWelfare, Government of West Bengal imposing the condition of executionof compulsory bond at the time of admission to post-graduate coursesand super speciality courses were challenged in the High Court ofCalcutta. Notification dated 31.07.2013 which was assailed in the HighCourt required the Appellant-doctors to work in the Multi-Speciality/ESuper Speciality Hospitals, Secondary and Tertiary Level Hospitals inWest Bengal for a period of one year after completion of their post-graduate and post-doctoral education in State Medical TeachingInstitutions in West Bengal. Execution of bond at the time of admissionto post-graduate courses and super Speciality courses, providing thatthey shall serve the State Government for a period of one year onFsuccessful completion of the courses, failing which they will be liable torecompense the State Government a penalty amount of Rs.10 Lakhs,was made compulsory.Partially modifying the Notification dated31.07.2013, the Government of West Bengal issued a Notification on10.06.2014 by which the condition pertaining to one year service wasGincreased to two years. The compensation in case of failure by theDoctors to serve in the State was enhanced to Rs. 30 Lakhs. 139 Doctorswho have acquired Degree of Bachelor of Medicine and Bachelor ofSurgery from various universities in the country challenged theaforementioned Notifications in the High Court. The learned SingleJudge of the Calcutta High Court by a judgment dated 03.11.2017 upheldH

the Notification dated 31.07.2013. However, the Notification dated10.09.2014 was held to be arbitrary and unreasonable. Aggrieved bythe judgment of the learned Single Judge, the State of West Bengal filedan appeal before the Division Bench of the High Court. Some of theWrit Petitioners who were aggrieved by the judgment insofar as it relatedto the Notification dated 31.07.2013 being upheld also filed appeals. Bythe impugned judgment, a Division Bench of the Calcutta High Courtheld that both the Notifications dated 31.07.2013 and 10.09.2014 areneither unreasonable nor arbitrary. The Division Bench set aside thejudgment of the learned Single Judge insofar as it related to the Notificationdated 10.09.2014 being quashed. The points urged before the HighCourt of Calcutta and the findings recorded therein shall be dealt withlater.

4. The Appellants seeking admission to post-graduate courses inArmed Forces Medical College, Pune were required to execute a similarbond to serve in the Armed Forces Medical Services as Short ServiceCommission Officers for a period of five years on completion of thepost-graduate courses. In case of failure to serve for five years, theAppellants were required to recompense the college with Rs.25 Lakhs.The above condition was included in the brochure for admission to Post-Graduate Medical Courses for the year 2014-2015. A writ petition wasfiled in 2017 by Appellants who were admitted in the post-graduatecourses in the year 2014-2015 challenging the validity of Clause 12 ofthe Information Bulletin which required them to serve for five years inthe Armed Forces Medical Services. They sought a further directionfor return of their original documents without insisting on compulsoryservice condition. The Writ Petition was dismissed by a Division Benchof the Bombay High Court by judgment dated 02.04.2019 with costsquantified at Rs.1 Lakh per petitioner. Aggrieved by the said judgment,SLP Nos.10007 and 2387 of 2019 have been filed.

5. We proceed to refer to the various contentions raised by theAppellants before the High Courts and judgments of the High Courts’:

Calcutta High Court:

As stated above, the Division Bench of the Calcutta High Courtwas concerned with two Notifications dated 31.07.2013 and 10.09.2014issued by the Government of West Bengal imposing a condition ofcompulsory service in the State of West Bengal for admission to post- A

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Agraduate and super Speciality courses in Government Medical Collegesin the State. It was contended on behalf of the Appellants that theybecame entitled for admission to post-graduate and super Specialitycourses in the government medical colleges in the State of West Bengalon the basis of their merit in the All India Post Graduate Medical EntranceExamination (AIPGMEE). According to them, additional eligibilityBconditions cannot be introduced by the State Government in respect ofAll India Quota candidates. Imposition of a condition of compulsoryservice infringes their fundamental rights under Articles 14, 19 and 21 ofthe Constitution of India. In any case, introduction of compulsory bondscan only be by way of legislation and not by an executive order. TheyCrelied on a judgment of this Court in Harsh Pratap Sisodia v. Union ofIndia[1] to buttress their submission relating to the bar on the State infixing addition eligibility criteria. In this connection, they placed relianceon an order passed by this Court in Anand Biji v. State ofKerala.[2]Theyfurther contended that the insistence of a condition to servein the State compulsorily would result in reservations being made by theDState, which would be contrary to the judgment of this Court in Dr.Pradeep Jain v. Union of India.[3]They further submitted that the servicebonds executed by the Appellants fall foul of Section 27 of the IndianContract Act, 1872. The Notifications that were issued by the StateGovernment were also challenged on the ground of unconstitutionalityEas the State Government lacked competence to issue such notifications.It was argued that all matters pertaining to medical education are coveredby the Medical Council of India Act, 1956. As the field was alreadyoccupied by a Union Legislation, the State Government does not havethe competence to legislate on the same subject matter. In view of thelack of legislative competence, the State Government does not have theFpower to issue executive orders in respect of compulsory bonds.

On behalf of the State of West Bengal, it was argued that it waswell within the competence of the State Government to issue executiveinstructions if the field was not occupied. The judgment of this Court inRai Sahib Ram Jawaya Kapur v. State of Punjab[4] and BhishambarGDayal Chandra Mohan v. State of Uttar Pradesh[5] were cited in support 1 (1999) 2 SCC 5752(2001) 6 SCC 6653(1984) 3 SCC 6544(1955) 2 SCR 225H5(1982) 1 SCC 39

of the said proposition. It was submitted by the State before the DivisionBench that the decisions of this Court in Harsh Pratap Sisodia (supra)and Anand Biji (supra) did not relate to the compulsory bonds and hence,were not applicable to the facts of the case. The stand of the State wasthat none of the fundamental rights under Articles 14, 19 and 21 wereviolated as the Appellants chose to be admitted in government collegesin the State of West Bengal without any protest or demur, and theycannot be permitted to assail the conditions on their admissions at thefag end of their courses.

The following issues were framed for consideration by the DivisionBench:

“(i) Could the State Government have introduced the bondsystem by issuing the notifications which are under challengein the present proceeding or was legislation necessary forthat purpose?

(ii) Do the notifications impinge upon the freedom of thepetitioners to practice any profession, or to carry on anyoccupation, trade or business guaranteed under Art.19(1)(g)of the Constitution?

(iii) Were the writ petitioners aware of the bond system beforeopting for West Bengal as their academic destination for postgraduate medical studies?

(iv) Is the bond system in restraint of a lawful profession,trade or business and is thus violative of Sec.27 of the IndianContract Act?

(v) Is there any such infirmity in the judgment and orderimpugned before us as would warrant interference by thisCourt?”

The first issue was answered in favour of the State by the DivisionBench holding that the provisions of Article 166 (1) & (2) were beingcomplied with before the Notifications were issued. The Division Benchheld that the Notifications issued by the State Government did not impingeon the freedom of the Appellants to practice any profession or to carryon any occupation, trade or business guaranteed by Article 19(1)(g) ofthe Constitution of India. Article 162 of the Constitution refers to theextent of the executive power of the State Government and that power

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Ais not restricted only to matters on which legislation has already beenpassed. The Division Bench observed that the State Government hasthe right to fill the vacuum which exists due to the absence of anylegislation and which can be filled by the executive instructions in theform of circulars/notifications. The Division Bench was of the opinionthat there is no fundamental right to pursue post-graduate medicalBeducation, especially in government colleges where higher education issubsidized. The Division Bench concurred with the findings of the learnedSingle Judge that the Appellants, who secured admissions in post-graduatemedical colleges after taking an informed decision to receive educationat a highly subsidized rate, cannot be permitted to question the compulsoryCmedical service bonds. The point raised by the Appellants about thedisability of the State Governments in introducing additional eligibilitycriteria was rejected by the Division Bench on the ground that thejudgments of this Court in Harsh Pratap Sisodia (supra) and AnandBiji (supra) were not applicable to the facts of this case. The DivisionBench stressed the point relating to the primacy of public health when itDcomes in conflict with private interest. It relied upon a judgment of thisCourt in Sayyed Ratanbhai Sayeed (D) thr. LRs & ORs. V. ShirdiNagar Panchayat & Anr.[6]to hold that the notion of public interest issynonymous with collective welfare of the people and public institutions,and is generally informed by the dictates of the public trust doctrine –Eres communis (i.e. everyone is common). The Division Bench rejectedthe point raised by the Appellants that the compulsory bonds were inviolation of Section 27 of the Contract Act. It was held that the post-graduate medical courses and the service bond were a package. TheDivision Bench sought support from the judgment of the High Court ofBombay in Dr.Vinod Shankarlal Sharma & Ors. v. The State ofFMaharashtra & Anr[7]. to uphold the constitutionality of the GovernmentResolutions imposing service bond. On the basis of the above findings,the Division Bench upheld the Notifications dated 31.07.2013 and10.09.2014.

Karnataka High Court:G

The Government of Karnataka insisted that the Appellants whohave completed post-graduate degrees/diploma courses in governmentmedical colleges should serve the Government for one year. Sub-rule 6 (2016) 4 SCC 631H72013 AIR Bom. 1

(7) of Rule 15 of the Karnataka Conduct of Entrance Test for Selectionand Admission to Postgraduate Medical and Dental Degree and DiplomaCourses Rules, 2006, framed under Section 14 (1) of the KarnatakaEducational Institutions (Prohibition of Capitation Fee) Act, 1984, imposesa penalty of Rs.50 Lakhs and Rs.25 Lakhs respectively for PostgraduateDegree and Postgraduate Diploma students on their failure to serve theGovernment on completion of their respective courses. All the WritPetitioners executed the obligation bond at the time of their admission.On completion of their courses, they filed a writ petition in the HighCourt questioning the bonds on several grounds. The points raised bythem relating to the undertaking being vitiated by coercion and violationof Article 23 of the Constitution and other fundamental rights have beenanswered against them. The submission of the Appellants that theyshould be exempted from the bond obligations as they were admittedfrom the All India Quota was also rejected by the High Court.

Kerala High Court:

A Division Bench of the High Court of Kerala dealt with the issuepertaining to compulsory bonds and held that there is no restriction imposedon the medical students from practicing the profession. The restrictionwas only regarding their choice of place of practice for one year. Afterdealing with all the points pertaining to restriction from trade or professionand the public policy, Seshadri Naidu, J. speaking for the Court statedthat those Appellants who were benefited by subsidised medical educationmust repay their debt/gratitude.

High Court of Judicature at Bombay :

Writ Petitions filed by the students of super speciality courseswere considered by a Division Bench of the High Court of Judicature atBombay. Imposition of a condition that the Appellants should serve inthe Government medical colleges for a period of one year failing whichthey have to pay a penalty was found to be neither arbitrary norunreasonable. Dr. D.Y. Chandrachud, J. (as he then was) was of thefirm opinion that the judgment of this Court in Dr. Pradeep Jain (supra)which pertained to reservations on the basis of domicile status had noconnection with service bonds. The Division Bench of the BombayHigh Court held that the compulsory bond requiring each Appellant toserve for one year is also not disproportionate. It was observed in thesaid judgment that the State has a legitimate interest in ensuring the A

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Astudents who benefitted from the infrastructure created by it mustcontribute back to the community by public service. The Division Benchtook note of the fact that post-graduate and super Speciality doctorswere being posted as Registrars and Senior Residents. After examiningthe need for the Government to utilize the services of the post-graduateand super Speciality doctors, the Division Bench gave a direction thatBthey should be allotted to posts which are commensurate with theirqualifications.

Gujarat High Court:

The learned Single Judge of the Gujarat High Court took a viewCdifferent from the one taken by Calcutta High Court, Kerala High Court,Karnataka High Court and the Bombay High Court. Execution of bondsby the doctors was a result of coercion as per the judgment of the learnedSingle Judge of the Gujarat High Court, who declared the bond agreementas unreasonable and unconscionable. Ergo, the bond agreement wasopposed to public policy and violative of Article 14 of the Constitution.DWe are informed by the learned counsel appearing for the State of Gujaratthat an appeal has been filed against the said judgment which is pendingconsideration before a Division Bench of the Gujarat High Court.

Pleadings

Pleadings

E6.Having taken note of the judgments of the High Courts, it istime to consider the submissions that are made before us. Mr. PrashantoChandra Sen, learned Senior Counsel appearing for the Writ Petitionersin Writ Petition (Civil) No.376 of 2018 argued that the doctors who havecompleted the post-graduate courses and super Speciality courses arenational assets. Their services should be utilized in the best possibleFmanner in places where there are facilities and they should not be wastedin rural areas. Their presence in institutions at the national level wouldbe beneficial to the society apart from providing an opportunity to themto hone their skills. He stated that additional conditions in the nature ofbonds cannot be imposed by the State Government which would disturbGthe balance stipulated by the Medical Council of India Regulations. Hesubmitted that the conditions imposed by the State Government areonerous and he commended for our acceptance that a reasonable exitclause should exist.

7. Mr. Krishnamohan Menon, learned counsel appearing for theAppellants in SLP (Civil) No.2387 of 2019, SLP (C) No.10 of 2010 andH

SLP (C) Dy.No. 19100 of 2019 in the Appeals arising out of the judgmentof the Calcutta High Court questioned the Notifications as beingunconstitutional and violative of Articles 14, 19(1)(g) and 21 of theConstitution. He urged that the notifications would not constitute “law”within the meaning of Article 13 of the Constitution. He submitted thatthe Appellants have freedom to carry on trade and profession guaranteedunder Article 19(1)(g) of the Constitution which can be restricted onlyby a law made by the State Legislature in the interest of the generalpublic. Any restrictions to be placed on the freedom to carry on tradeand profession should be reasonable. According to him, the bondsimposed by the Notifications failed the test of reasonableness. Hesubmitted that the post-graduate and super Speciality Doctors are notequipped to handle health needs in rural areas, and by not utilizing theskills of these specialists, the Government would be doing disservice tothe society. He referred to instances in which specialists in Cardiology,Pathology and Pediatrics were asked to take care of the primary medicalhealth care. He voiced his concern for the need to balance the academiccareer and personal incentives for Appellants with public interest. Healso complained of arbitrariness in imposition of bond conditions. Hedealt with the point of the Notifications suffering from the vice of lack ofjurisdiction on the part of the State Government.

8. Mr. Huzefa Ahmadi, learned Senior Counsel appearing for theAppellants in the Appeals arising out of SLP (C) No.10007 of 2019contended that the condition imposed for rendering compulsory servicein the Army is violative of Articles 19(1)(g) and 23 (1) read with Article21 of the Constitution. The compulsory bond is violative of Section 27 ofthe Indian Contract Act, 1872 apart from being barred by Section 14 ofthe Specific Relief Act, 1963. According to Mr. Ahmadi, insistence ofcompulsory service in the Army for five years is ‘forced labour’ whichis prohibited under Article 23 of the Constitution. People’s Union forDemocratic Rights v. Union of India[8] was cited in support of the saidproposition. He further asserted that Article 23(2) is an exception toArticle 23(1). Compulsory employment provided under Article 23(2)can be introduced only by way of legislation and not by a mere executiveinstruction. By referring to Section 14 of the Specific Relief Act, Mr.Ahmadi submitted that a contract of personal service is not enforceable.He also commended that there should be a reasonable exit clause. Ms.

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ARadhika Gautam, learned counsel appearing for the Appellants in theAppeal arising out of SLP (C) No. 15688 of 2019 adopted the submissionsmade by Mr. Ahmadi and sought for the release of original documentswhich were taken from the Appellants at the time of their admission topost-graduate courses to enable them to participate in the counsellingfor admissions into the super Speciality courses.B

9. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for theState of West Bengal submitted that the executive power of the StateGovernment is co-extensive to the power of the State Legislature tolegislate, as medical education falls under Entry 25 of List III of the 7[th]Schedule to the Constitution. Mr. Dwivedi posited that the StateCGovernment has a role to play in admissions unless the field is completelyoccupied by a Central Legislation. In support of the submission that theState has always the power to supplement and not supplant the provisionsof a statute, he relied upon Ch. Tikaramji v. State of Uttar Pradesh[9]andModern Dental College and Research Centre v. State of MadhyaDPradesh.[10] According to Mr. Dwivedi, the subject matter relating tocompulsory bonds is not a subject matter of any legislation made by theParliament. He further contended that in furtherance of the right tohealth which falls under Article 21 read with Article 14 of the Constitution,there is a duty cast on the State Government to provide medical facilities.He sought support of the judgments of this Court in Paschim BangaEKhet Mazdoor Samity v. State of West Bengal[11], State of Punjab v.Ram Lubhaya Bagga[12] and Union of India v. Moolchand KhairatiRam Trust.[13] Mr. Dwivedi urged that the source from which thedoctors are selected for post-graduate courses and super Specialitycourses is not relevant to decide the validity of the compulsory bonds onFthe touchstone of Article 14 of the Constitution. No special status canbe assigned to doctors who are admitted in seats allotted to All IndiaQuota as they lose their birthmarks after admission to their colleges. Hestated that treating All India Quota students as a separate class canresult in unreasonable classification and hostile discrimination againstthe State Quota students. Mr. Dwivedi argued that the policy of theGState Government is neither arbitrary nor unreasonable. He submitted 9 AIR 1966 SC 676.10 (2016) 7 SCC 35311(1996) 4 SCC 37 ¶ 9 & 1612(1998) 4 SCC 117 ¶ 26, 27 & 35H13(2018) 8 SCC 321

that an amount of Rs.23,93,784/- is spent on each Doctor at the post-graduate level by the Government of West Bengal and hence therequirement of the penalty of Rs.10 Lakhs for each defaulting year isneither excessive nor disproportionate. There is no fundamental right topursue post-graduate medical education for which reason no complaintcan be made by the Appellants for violation of Article 19(1)(g) of theConstitution. While dealing with the submissions of infringement ofArticle 23(1) of the Constitution, he submitted that imposition ofcompulsory service for public purposes is permitted by Article 23(2) ofthe Constitution. He referred to a Report of World Health Organisation(WHO) released in 2010 which also recommended compulsory serviceof health professionals in rural and remote areas. Compulsory servicesvarying from one to nine years are prevalent in about 70 countries.Utilizing the services of talented and skilled doctors is in conformity withthe National Health Policy[14]. Mr. Dwivedi further submitted that thepoint pertaining to Section 14(1)(b) of the Specific Relief Act does notarise for our consideration as the State Governments are not seekingspecific relief of enforcement. He asseverated that compulsory servicebond is a part of the integral package for providing highly subsidizedmedical education at post-graduate level and that retention of thedocuments to ensure compliance with the conditions of the compulsoryservice bonds is permissible.

10. Mr. Atmaram Nadkarni, learned Additional Solicitor Generalappearing for the State of Goa provided information relating to the amountsspent on doctors receiving post-graduation education in the State of Goa.The State of Goa spends an amount of Rs.50 Lakhs for a student perannum for specialization. The amount of fee that is charged from eachstudent is Rs.77,500/-. The students undergoing super Speciality coursesare paid a monthly stipend of Rs. 86,927/- for the first year, Rs. 89,495/- for the second year and Rs. 92,191/- for the third year. The doctorswho receive highly subsidized medical education are obligated to renderpublic service and the State has a legitimate right to insist on the doctorsserving the State for a short period of time. The bond condition in theState of Goa is that doctors who receive education in Government collegesshould serve for three years in the State, in default of which they areliable to pay Rs.10 Lakhs. He supported the policy of the StateGovernment being in public interest.

14World Health Organization (2010). Increasing access to health workers in remoteand rural areas through improved retention. Geneva: World Health Organization.

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A11.Mr. K.M. Nataraj, learned Additional Solicitor General for theUnion of India and the Armed Forces Medical College requested us notto interfere with the judgment of the Bombay High Court as theAppellants who were admitted to the post-graduate courses afterexecuting the bond cannot be permitted to question the requirement ofthe compulsory bond on completion of the course. He contended thatBthe requirement of compulsory service in the Army is in public interest.He further submitted that the judgment in Harsh Pratap Sisodia(supra)and the order passed in Anand S. Biji (supra) were not related to thebond conditions and cannot be taken advantage of by the Appellants. Healso stated that the requirement of the bond to serve for five years doesCnot deserve any relaxation.

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12. Dr. Manish Singhvi, learned Senior Counsel appearing for theState of Rajasthan contended that there is no fundamental right to receivehigher education and the question of violation of Article 19(1)(g) doesnot arise. He fairly submitted that the executive instructions andDnotifications issued by the Government necessitating the compulsory bonddo not fall within the expression “law” under Article 13 of the Constitution.But, as there is no violation of any fundamental right, no fault can befound with the notifications issued by the State Government in exerciseof their powers under Article 162 of the Constitution. He argued thatthe beneficiaries of Government funds form a different class and it isEpermissible for the State Government to impose conditions for admissioninto government colleges.

13. Ms. Deepanwita Priyanka, learned counsel appearing for theState of Gujarat submitted that there are six colleges in the State ofGujarat imparting education in super speciality courses. In all, there areF122 seats out of which 76 seats are in the government colleges and 46seats in the private colleges. A nominal fee of Rs.40,000/- is chargedfrom the doctors who are paid a stipend of Rs.72,000/-, Rs.75,000/- andRs.80,000/- per month for their first year, second year and third yearcourses respectively. There is a high demand for super Speciality doctorsGin the State of Gujarat in view of the large number of patients indepartments of Oncology, Cardiology and Nephrology in the superSpeciality hospitals. In view of the health need of the patients and theacute shortage of super specialists, the State Government decided tointroduce the compulsory bond. The super specialists are posted only inthe four super Speciality hospitals run by the Government.H

RESIDENTS v. UNION OF INDIA [L.. NAGESWARA RAO, J.]

14. Mr. Shibashish Misra, learned counsel appearing for the Stateof Orissa brought to our notice that all the 45 seats in the super Specialitycourses in the State are filled up on the basis of merit in the All IndiaCounselling. The fee charged in the Government colleges is Rs. 45,000/- per year and the stipend of Rs.56,826/- is paid to the doctors undergoingsuper Speciality courses. There is serious shortage of super Specialitydoctors in the State and the Government’s decision to introduce the bondsystem is in public interest.

15. Mr. Balaji Srinivasan, learned Additional Advocate Generalappearing for the State of Tamil Nadu stated that there are 334 superSpeciality seats in 24 Government medical colleges run by the StateGovernment. The Government is charging only Rs.30,000/- per annumfrom the doctors undergoing super Speciality courses. An amount ofRs.21 Lakhs is spent on each post-graduate student by the Government.Earlier, the bond required super specialists to serve for 10 years in theState and pay Rs.2 Crores in default. The State reviewed the policy andreduced the bond amount to Rs.50 Lakhs. The period of service to berendered by the doctors who have undergone training in Super Specialitycourses has been reduced to two years from ten years. It is also broughtto our notice that about 217 candidates have violated the bond conditions.

Analysis:

16. The main points that require consideration are:

I. Jurisdiction of the State Government,

II. Violation of Fundamental Rights,

III. Contract of Personal Service, and

IV. Restraint on Profession.

I.Jurisdiction of the State Government:

17. Entry 66 of List I of the 7[th] Schedule to the Constitution refersto coordination and determination of standards in institutions for highereducation or research and scientific and technical institutions. Entry 25of List III of the 7[th] Schedule deals with education, including technicaleducation, medical education and universities, subject to the provisionsof entries 63, 64, 65 and 66 of List I. Legislations can be made by theState Legislature relating to medical education subject to the legislationmade by the Parliament. The Medical Council of India Act governs the

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Afield of medical education in this country. Admittedly, there is no provisionin the Medical Council of India Act touching upon the subject matter ofcompulsory bonds. Therefore, the States are free to legislate on thesubject matter of medical bonds. Executive authority of the StateGovernment is co-extensive with that of the legislative power of theState Legislature. Even in the absence of any legislation, the StateBGovernment has the competence to issue executive orders under Article162 of the Constitution on matters over which the State legislature hasthe power to legislate. The Notifications issued by the State Governmentsimposing a condition of execution of compulsory bonds at the time ofadmission to post-graduate courses and super Speciality courses cannotCbe said to be vitiated due to lack of authority or competence. The fieldof bonds requiring compulsory employment is not covered by any CentralLegislation. Therefore, the submissions made on behalf of the Appellantsthat the States lacked competence to issue the notifications as the fieldis occupied are rejected.

DII. Violation of Fundamental Rights:Article 14 :

A. Arbitrariness

DII. Violation of Fundamental Rights:Article 14 :

A. Arbitrariness

18. The Appellants are aggrieved by the decision of the StateEGovernments imposing conditions for their admission in the post-graduatecourses and super Speciality courses. According to them, the StateGovernments have understood the decision of this Court in Harsh PratapSisodia (supra) to be a restraint on the exercise of their power in mattersrelating to eligibility criteria for admission to medical course. Suddenly,the introduction of the compulsory bonds after 15 years of the judgmentFin Harsh Pratap Sisodia (supra) is the result of decision taken by theState Governments which is dubbed by the Appellants as arbitrary. ThisCourt in Harsh Pratap Sisodia (supra) was concerned with theadditional eligibility criteria being introduced by the State Governmentsfor the 15% All India Quota students. The decision taken by the StateGGovernments to impose a condition of compulsory bond for admission topost-graduate courses and super Speciality is on the basis of relevantmaterial. Huge infrastructure has to be developed and maintained forrunning medical colleges with post-graduate and super Speciality courses.The amount of fees charged from the students is meagre in comparison H

to the private medical colleges. Reasonable stipend has to be paid to thedoctors. Above all, the State Governments have taken into account theneed to provide health care to the people and the scarcity of superspecialists in their States. Consequently, a policy decision taken by theState Governments to utilize the services of doctors who werebeneficiaries of Government assistance to complete their education cannotbe termed arbitrary.

B. Reasonableness

19. Reasonableness is a ground that pervades through thesubmissions made by the counsel on both sides. In the State of WestBengal, the requirement of a compulsory bond was initially a service ofone year in the State in default of Rs.10 Lakhs was to be paid. This wasenhanced to three years and Rs.30 Lakhs by a Notification dated09.10.2014. In the State of Tamil Nadu, the bond condition was that adoctor has to serve for ten years in the State and in default of which, thedoctor was to pay Rs.2 Crores. This was reduced to two years andRs.50 Lakhs. The Armed Forces Medical College imposes a conditionof five years compulsory service in the Army for post-graduate andsuper Speciality doctors who prosecuted their study in the college. Theyhave an option of not serving for five years by recompensing theGovernment by paying Rs.25 Lakhs. The main contention of the counselappearing for the Appellants is that the condition of a long period ofservice that is imposed is unreasonable. The basis for the submission isthat they have already served the society by working in Governmenthospitals while undergoing their course. Further conditions imposed onthem would impede the progress of their careers. Restrictions placedon their choice of place of work are also unreasonable according tothem. An alternate submission made by the counsel appearing for theAppellants is that the imposition of the condition of compulsory bondshould be reasonable and the exit clause should be relaxed. Notificationsissued by the State Governments imposing a condition of compulsoryservice and a default clause are per se not unreasonable. However, weare in agreement with the learned counsel for the doctors that the periodof compulsory service and the exit should be reasonable. The StateGovernments and the Armed Forces Medical College are directed toconsider imposing the condition of compulsory service period of twoyears in default of which the Doctors shall recompense the Governmentby paying Rs. 20 Lakhs.

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AArticle 19:

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1038SUPREME COURT REPORTS

AArticle 19:

20. According to the Appellants, the right to carry on theirprofession which is guaranteed by Article 19(1)(g) is violated by thecompulsory bonds. They contend that the compulsory bonds place arestriction on their right to carry on their profession on completion ofBtheir course. It is also submitted that any restriction on their right tocarry on their profession by the State Government can be made only bya “law” as per Article 19(6) of the Constitution. Consequently, theNotifications that were issued by the State Governments fall foul ofArticle 19(1)(g). The compulsory bond executed by the Appellants is atthe time of their admissions into post-graduate and super SpecialityCcourses. Conditions imposed for admission to a medical college will notdirectly violate the right of an individual to carry on his profession. Theright to carry on the profession would start on the completion of thecourse. At the outset, there is no doubt that no right inheres in an individualto receive higher education. Violation of a right guaranteed under Article D19(1)(g) does not arise in a case pertaining to admission to a college.There is no doubt, that the condition that is imposed has a connectionwith the professional activity of a doctor on completion of the course.However, the Appellants have, without any protest, accepted theadmissions and executed the compulsory bonds. Execution of bonds is part of a composite package. We are in agreement with the judgment ofEthe Calcutta High Court that the Appellants have not been able to succeedin their attempt of assailing the Notifications for being violative of Article19(1)(g) of the Constitution. We uphold the said finding of the DivisionBench.

Article 21F

21. The Appellants contended before the Calcutta High Courtthat their liberty is curtailed by the compulsory bonds. The scope ofliberty which has been enhanced by this Court includes personal autonomyto take decisions relating to their profession. It was contended that thecondition requiring them to compulsorily work for a certain period ofGtime with the Government corrodes their liberty, affecting their right tolife. They relied upon judgments of this Court in Kharak Singh v. Stateof U.P.[15]and K.S. Puttaswamy v. Union of India[16] while advancingthis submission. Referring to a judgment of this Court in Sayyed 15AIR 1963 SC 1295H16(2017) 10 SCC 1

Ratanbhai Sayeed (supra), the High Court held that private rights, whenin conflict with public interest, have to take a back seat. The High Courtalso recalled what Marcus Tullius Cicero said about the good of thepeople being the chief law.

22. Article 21 of the Constitution of India imposes an obligation onthe State to safeguard the right to life of every person. Preservation ofhuman life is thus of paramount importance. The Government hospitalsrun by the State and the Medical Officers employed therein are dutybound to extend medical assistance for preserving human life. Failureon the part of a Government hospital to provide timely medical treatmentto a person in need of such treatment results in violation of his rightguaranteed under Article 21 of the Constitution.[17] Therefore, in a welfareState it is the obligation of the State to ensure the creation and thesustaining of conditions congenial to good health.[18]

23. Article 47 of the Constitution reiterates the constitutionalobligation imposed on the State to improve public health. The DirectivePrinciple provides as follows:

“47. The State shall regard the raising of the level of nutritionand the standard of living of its people and the improvementof public health as among its primary duties and, in particular,the State shall endeavour to bring about prohibition of theconsumption except for medicinal purposes of intoxicatingdrinks and of drugs which are injurious to health.”

24. In Akhil Bharatiya Soshit Karamchari Sangh v. Union ofIndia[19] it was held that maintenance and improvement of public healthhave to rank high as these are indispensable to the very physical existenceof the community and on the betterment of these depends the building ofthe society of which the Constitution makers envisaged. It was furtherobserved in the above judgment that attending to public health, therefore,is of high priority- perhaps the one at the top.

25. It is for the State to secure health to its citizens as its primaryduty. No doubt the Government is rendering this obligation by openingGovernment hospitals and health centers, but in order to make itmeaningful, it has to be within the reach of its people, as far as possible, 17 Paschim Banga Khet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37

18 Vincent Panikurlangara v. Union of India (1987) 2 SCC 165

19(1981) 1 SCC 246

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Ato reduce the queue of waiting lists, and it has to provide all facilities toemploy best of talents and tone up its administration to give effectivecontribution, which is also the duty of the Government[20].

26. Right to health is integral to the right to life. Government hasa constitutional obligation to provide health facilities[21]. The fundamentalBright to life which is the most precious human right and which forms theark of all other rights must therefore be interpreted in a broad and expansivespirit so as to invest it with significance and vitality which may endurefor years to come and enhance the dignity of the individual and theworth of the human person. The right to life enshrined in Article 21cannot be restricted to mere animal existence. It means something muchCmore than just physical survival. The right to life includes the right tolive with human dignity and all that goes along with it, namely, the barenecessaries of life such as adequate nutrition, clothing and shelter, andfacilities for reading, writing and expressing oneself in diverse forms,freely moving about and mixing and commingling with fellow humanDbeings. Every act which offends against or impairs human dignity wouldconstitute deprivation pro tanto of this right to live and the restrictionwould have to be in accordance with reasonable, fair and just procedureestablished by law which stands the test of other fundamental rights[22].

27. To live is to live with dignity. The draftsmen of the ConstitutionEdefined their vision of the society in which constitutional values wouldbe attained by emphasizing, among other freedoms, liberty and dignity.So fundamental is dignity that it permeates the core of the rightsguaranteed to the individual by Part III of the Constitution. Dignity is thecore which unites the fundamental rights because the fundamental rightsseek to achieve for each individual the dignity of existence[23].F

28. The State’s obligations are not satisfied solely by refrainingfrom imposing limitations on the right to human dignity. The State mustalso take action to protect human dignity and to facilitate its realization.The constitutional right to dignity is intended to ensure human beings’political and civil liberties as well as their social and economic freedoms[24].G

20 State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117

21State of Punjab & Ors. v. Mohinder Singh Chawla (1997) 2 SCC 83

22Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608

23K.S. Puttaswamy (supra)

24Aharon Barak, Human Dignity: the Constitutional Value and the Constitutional Rightin Christopher McCrudden (ed.),Understanding Human Dignity, Proceedings of theHBritish Academy, 192, pp. 361-80 at p. 367.

29. Dr. A. K. Sikri. J. in K.S. Puttaswamy v. Union of India[25]observed that the realisation of intrinsic worth of every human being asa member of society is an indispensable condition, and has been recognisedas an important human right. Truly speaking, this is directed towards thedeprived, downtrodden and the have-nots. He further held that thehumanistic concept of human dignity which is to be accorded to thatparticular segment of the society has to be kept in mind. Their humandignity is based on the socio-economic rights that are read into thefundamental rights. The importance of the communitarian approachalong with the individualistic approach to human dignity was addressedby Dr. A.K. Sikri, J. in the above judgment. The learned Judge emphasisedon the role of the State and community in establishing collective goalsand restrictions on individual freedoms and rights on behalf of a certainidea of the good life.

30. We accept the submission of Mr. Rakesh Dwivedi, learnedSenior Counsel for the State of West Bengal that the positive obligationof the State to uphold the dignity of a larger section of the society is toprotect the rights conferred on them by Article 21 of the Constitution.The immediate need of the deprived sections of the society to haveproper health care was the reason behind the policy decision of theGovernment. The objective of the policy is to ensure that specialisthealth care is extended to the have-nots also.

31. The next question that arises is whether there is a conflictbetween the rights of the community and the rights of the Appellants.As stated earlier, the right that is claimed by the Appellants is to make anindividual choice to carry on their profession which might be hindered bythe decision of the Government. On the other hand, the basic idea behindthe Government’s decision is larger public interest. The judgment of thisCourt in Sayyed Ratanbhai Sayeed (supra) relied upon by the HighCourt is to the effect that private interest has to take a back seat whenpitted against public interest. In Mr. X v. Hospital ‘Z’,[26] Saghir AhmadJ speaking for this Court, held that:

44….Moreover, where there is a clash of two FundamentalRights, as in the instant case, namely, the appellant’s right toprivacy as part of right to life and Ms ‘Y’s right to lead a 25K.S. Puttaswamy v. Union of India, (2019) 10 SCC 1 [AADHAAR 5JB].

26(1998) 8 SCC 296

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Ahealthy life which is her Fundamental Right under Article 21,the right which would advance the public morality or publicinterest, would alone be enforced through the process of court,for the reason that moral considerations cannot be kept at bayand the Judges are not expected to sit as mute structures of clayin the hall known as the courtroom, but have to be sensitive, “inBthe sense that they must keep their fingers firmly upon the pulseof the accepted morality of the day”.” [emphasis supplied].

32. The Universal Declaration of Human Rights (UDHR) recordedin the Preamble its recognition of the inherent dignity and of the equaland inalienable rights of all members of the human family as theCfoundation of freedom, justice and peace. The International Covenanton Economic, Social and Cultural Rights (ICESCR) recognizes the rightof every person to the enjoyment of the highest attainable standard ofphysical and mental health. ICESCR mandates the States Parties toachieve full realization of the aforementioned right through the creation

Dof conditions which would assure to all, medical service and medicalattention in the event of sickness, inter alia.

33. The above discussion leads us to the conclusion that right tolife guaranteed by Article 21 means right to life with human dignity.Communitarian dignity has been recognised by this Court. While balancingEcommunitarian dignity vis-à-vis the dignity of private individuals, the scalesmust tilt in favour of communitarian dignity. The laudable objective withwhich the State Governments have introduced compulsory service bondsis to protect the fundamental right of the deprived sections of the societyguaranteed to them under Article 21 of the Constitution of India. Thecontention of the Appellants that their rights guaranteed under Article 21Fof the Constitution of India have been violated is rejected.

Article 23

34. Article 23 reads as follows:

23. “(1) Traffic in human beings and begar and other similarGforms of forced labour are prohibited and any contraventionof this provision shall be an offence punishable in accordancewith law.

(2) Nothing in this article shall prevent the State from imposingcompulsory service for public purposes, and in imposing suchservice the State shall not make any discrimination on groundsHonly of religion, race, caste or class or any of them.”

35. The submission of Mr. Huzefa Ahmadi, learned Senior Counselfor the Appellants is that the conditions of the bond per se amount to‘forced labour’ and thus are violative of Article 23 (1) of the Constitution.Mr. Dwivedi expostulated the said submission by referring to Article 23(2) which confers power on the State to impose compulsory service forpublic purpose. Reliance was placed upon the Constituent AssemblyDebates by Mr. Dwivedi explaining the scope of compulsory employmentfor public purpose under Article 23 (2) of the Constitution of India. TheAppellants who are required to work for a short period on a decentstipend cannot complain that they are made to perform ‘forced labour’,especially after the Appellants have taken an informed decision to availthe benefits of admission in government medical colleges and receivedsubsidized education. By no means, the service rendered by theAppellants in Government hospitals would fall under the expression of‘forced labour’.

36. The 13[th] Amendment to the U.S. Constitution prohibits slaveryand involuntary servitude. The Supreme Court of the United States heldthat compulsory employment for public purpose does not amount to‘involuntary servitude’ in Robertson v. Baldwin[27] and Butler v. Perry[28].Article 23 (2) of the Constitution enables the State Governments torequire the Appellants to do compulsory service in the Governmenthospitals which is undoubtedly for the benefit of the public.

III. Contract of Personal Service

37. Section 14 of the Specific Relief Act, 1963 prohibits theenforcement of contracts of personal service. The submission of Mr.Ahmadi that the contract of personal service, in the form of a compulsorybond, is not enforceable was dealt with by Mr. Dwivedi, who arguedthat the State Governments do not intend to enforce the contract in acourt of law. It is trite law that Courts do not ordinarily enforceperformance of contracts of personal character, such as a contract ofemployment[29]. Reference can be made to the judgment of Jessel, M.R.,in Rigby v. Connol[30]wherein he held that:

27 165 U.S. 275 (1897) [US Supreme Court]28(1916), 240 U.S. 328, 329.

29 Nandganj Sihori Sugar Co. Ltd. Rae Bareli & Anr. v. Badri Nath Dixit & Ors. (1991)

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A“The courts have never dreamt of enforcing agreements strictlypersonal in their nature, whether they are agreements of hiringand service, being the common relation of master and servant….”

38. Specific performance of contract for personal service is notBpermissible under the Specific Relief Act, therefore, there cannot be adecree for specific performance of a contract of personal nature. Noneof the State Governments have made an attempt to enforce the contractsentered into by them with the Appellants through the service bonds. Weare not in agreement with the submission of Mr. Ahmadi that thecompulsory bonds fall foul of the Specific Relief Act.C

IV. Restraint on Profession

39. The argument advanced on behalf of the Appellants thatcompulsory bonds placed a restraint on their profession and thus, wouldbe contrary to Section 27 of the Indian Contract Act, 1872. The HighDCourt of Calcutta repelled this submission by holding that the compulsorybond does not amount to any restraint on the professional activity of theAppellants. The High Court observed that the Appellants are offeredthe job of Medical Officer in the State of West Bengal and that thecovenant in the compulsory bond operates only during the period of suchemployment. Relying upon the dictum of Lord Morris in Esso PetroleumEv. Harper’s Garage (Stourport) Ltd.,[31]that “if A made a contract underwhich he willingly agreed to serve B on reasonable terms for a fewyears and to give his whole working time to B, it would be surprisingindeed, if it were sought to describe the contract as being in restraint oftrade; in fact, such a contract would very likely be for the advancementFof trade’, the High Court concluded that a contract entered into byAppellants to serve the government for a few years under reasonableterms cannot be described as one in restraint of trade. We are inagreement with the findings recorded by the High Court of Calcutta.Therefore, we are of the considered opinion that the conditions ofcompulsory bonds for admission to post-graduate and super-SpecialityGcourses in government medical colleges are not in violation of Section27 of the Indian Contract Act, 1872.

40. The upshot of the above discussion is that the Writ Petitionsand the Appeals deserve to be dismissed. Consequently, all the Doctors

who have executed compulsory bonds shall be bound by the conditionscontained therein.

41. Taking note of the fact that certain State Governments haverigid conditions in the compulsory bonds to be executed by the Appellantsand the felt need of uniformity in the matter pertaining to the compulsorybonds, we suggest that suitable steps be taken by the Union of India andthe Medical Council of India to have a uniform policy regarding thecompulsory service to be rendered by the Doctors who are trained ingovernment institutions.

42. The Writ Petitions and the Appeals are dismissed.

Devika Gujral

Matters disposed of.

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