# ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND RESIDENTS & ORS v. UNION OF INDIA & OTHERS

- **Citation:** [2019] 12 S.C.R. 1011
- **Court:** Supreme Court of India
- **Decided:** 2019-08-19
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/association-of-medical-super-speciality-aspirants-and-residents-ors-v-union-of-33119
- **Pages:** 35

## Headnote

Constitution of India: Art.162; Seventh Schedule, List I,
Entries 63 to 66; List III Entry 25 - Jurisdiction of the State
Government - Notification issued by State Government for
compulsory execution of bond by the candidates at the time of
admission to post-graduate courses and super speciality courses
providing that they shall serve the State Government for certain
stipulated period on successful completion of courses failing which
they would be liable to recompense the State Government -
Competence of State Government to issue such notification - Held:
Entry 66 of List I of the 7th Schedule to the Constitution refers to
coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions -
Entry 25 of List III of the 7th Schedule deals with education, including
technical education, medical education and universities, subject to
the provisions of entries 63, 64, 65 and 66 of List I - Legislations
can be made by the State Legislature relating to medical education
subject to the legislation made by the Parliament - The Medical
Council of India Act governs the field of medical education in this
country - Admittedly, there is no provision in the Medical Council
of India Act touching upon the subject matter of compulsory bonds
- Therefore, the States are free to legislate on the subject matter of
medical bonds - Executive authority of the State Government is coextensive with that of the legislative power of the State Legislature
- Even in the absence of any legislation, the State Government has
the competence to issue executive orders under Art.162 on matters
over which the State legislature has the power to legislate - Thus,
Notifications issued by the State Governments imposing a condition
of execution of compulsory bonds at the time of admission to postgraduate courses and super speciality courses cannot be said to be
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vitiated due to lack of authority or competence - Medical Council
of India Act.
Constitution of India: Art.14 - Notification issued by State
Government for compulsory execution of bond at the time of
admission of candidates to post-graduate courses and super
specialty courses providing that they shall serve the State
Government for certain stipulated period on successful completion
of courses failing which they will be liable to recompense the State
Government - Whether violated fundamental rights and is arbitrary
- Held: Running medical colleges with post-graduate and super
speciality courses requires huge infrastructure - However, the
amount of fees charged from the students is meagre in comparison
to the private medical colleges - The doctors are to paid reasonable
stipend - Government hospitals run by the State are duty bound to
extend medical assistance for preserving human life - Failure on
the part of a Government hospital to provide timely medical treatment
to a person in need of such treatment results in violation of his right
guaranteed under Art.21 of the Constitution - Consequently, a policy
decision taken by the State Governments to utilize the services of
doctors who were beneficiaries of Government assistance to
complete their education cannot be termed arbitrary.
Constitution of India: Art.14 - Notifications issued by the
State Governments imposing a condition of compulsory service and
a default clause - Reasonableness of - Held: Notifications imposing
a condition of compulsory service and a default clause are per se
not unreasonable - However, the period of compulsory service
and the exit should be reasonable - State Governments and Armed
Forces Medical College are directed to consider imposing the
condition of compulsory service period of two years in default of
which the Doctors would recompense the Government by paying
Rs. 20 Lakhs.
Constitution of India: Arts.19(1)(g), 19(6) - Right to life and
liberty - Right to take decisions relating

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ASSOCIATION OF MEDICAL SUPER SPECIALITY
ASPIRANTS 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 State
Government - Notification issued by State Government for
compulsory execution of bond by the candidates at the time of
admission to post-graduate courses and super speciality courses
providing that they shall serve the State Government for certain
stipulated period on successful completion of courses failing which
they would be liable to recompense the State Government -
Competence of State Government to issue such notification - Held:
Entry 66 of List I of the 7th Schedule to the Constitution refers to
coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions -
Entry 25 of List III of the 7th Schedule deals with education, including
technical education, medical education and universities, subject to
the provisions of entries 63, 64, 65 and 66 of List I - Legislations
can be made by the State Legislature relating to medical education
subject to the legislation made by the Parliament - The Medical
Council of India Act governs the field of medical education in this
country - Admittedly, there is no provision in the Medical Council
of India Act touching upon the subject matter of compulsory bonds
- Therefore, the States are free to legislate on the subject matter of
medical bonds - Executive authority of the State Government is coextensive with that of the legislative power of the State Legislature
- Even in the absence of any legislation, the State Government has
the competence to issue executive orders under Art.162 on matters
over which the State legislature has the power to legislate - Thus,
Notifications issued by the State Governments imposing a condition
of execution of compulsory bonds at the time of admission to postgraduate courses and super speciality courses cannot be said to be
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vitiated due to lack of authority or competence - Medical Council
of India Act.
Constitution of India: Art.14 - Notification issued by State
Government for compulsory execution of bond at the time of
admission of candidates to post-graduate courses and super
specialty courses providing that they shall serve the State
Government for certain stipulated period on successful completion
of courses failing which they will be liable to recompense the State
Government - Whether violated fundamental rights and is arbitrary
- Held: Running medical colleges with post-graduate and super
speciality courses requires huge infrastructure - However, the
amount of fees charged from the students is meagre in comparison
to the private medical colleges - The doctors are to paid reasonable
stipend - Government hospitals run by the State are duty bound to
extend medical assistance for preserving human life - Failure on
the part of a Government hospital to provide timely medical treatment
to a person in need of such treatment results in violation of his right
guaranteed under Art.21 of the Constitution - Consequently, a policy
decision taken by the State Governments to utilize the services of
doctors who were beneficiaries of Government assistance to
complete their education cannot be termed arbitrary.
Constitution of India: Art.14 - Notifications issued by the
State Governments imposing a condition of compulsory service and
a default clause - Reasonableness of - Held: Notifications imposing
a condition of compulsory service and a default clause are per se
not unreasonable - However, the period of compulsory service
and the exit should be reasonable - State Governments and Armed
Forces Medical College are directed to consider imposing the
condition of compulsory service period of two years in default of
which the Doctors would recompense the Government by paying
Rs. 20 Lakhs.
Constitution of India: Arts.19(1)(g), 19(6) - Right to life and
liberty - Right to take decisions relating to profession - According
to the Appellants, the right to carry on their profession guaranteed
by Art.19(1)(g) is violated by the compulsory bonds and that any
restriction on their right to carry on their profession by the State
Government can be made only by a "law" as per Art. 19(6) of the
Constitution - Held: The compulsory bond executed by the
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Appellants is at the time of their admissions into post-graduate and
super speciality courses - Conditions imposed for admission to a
medical college will not directly violate the right of an individual to
carry on his profession - The right to carry on the profession would
start on the completion of the course - At the outset, there is no
doubt that no right inheres in an individual to receive higher
education - Violation of a right guaranteed under Art.19(1)(g)
does not arise in a case pertaining to admission to a college - The
condition that is imposed has a connection with the professional
activity of a doctor on completion of the course - However, the
Appellants have, without any protest, accepted the admissions and
executed the compulsory bonds - Appellants have not succeeded in
their attempt of assailing the Notifications for being violative of
Art.19(1)(g) of the Constitution.
Constitution of India: Arts.21, 47 - Right to life - Art.21
imposes an obligation on the State to safeguard the right to life of
every person - Preservation of human life is thus of paramount
importance - The Government hospitals run by the State and the
Medical Officers employed therein are duty bound to extend medical
assistance for preserving human life - In a welfare State, it is the
obligation of the State to ensure the creation and the sustaining of
conditions congenial to good health - Art.47 reiterates the
constitutional obligation imposed on the State to improve public
health.
Constitution of India: Art.21 - Right to live with dignity -
Right to life enshrined in Art.21 cannot be restricted to mere animal
existence - It means something much more than just physical survival
- The right to life includes the 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 and expressing oneself in diverse forms, freely moving about
and mixing and commingling with fellow human beings - Dignity is
the core which unites the fundamental rights because the
fundamental rights seek to achieve for each individual the dignity
of existence - The State's obligations are not satisfied solely by
refraining from imposing limitations on the right to human dignity -
State must also take action to protect human dignity and to facilitate
its realization - The constitutional right to dignity is intended to
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ensure human beings' political and civil liberties as well as their
social and economic freedoms.
Constitution of India: Art.23 - Whether the conditions of the
bond 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 decent
stipend cannot complain that they are made to perform 'forced
labour', especially after they took an informed decision to avail
the benefits of admission in government medical colleges and
received subsidized education - By no means, the service rendered
by the Appellants in Government hospitals would fall under the
expression of 'forced labour' - Art.23(2) enables the State
Governments to require the Appellants to do compulsory service in
the Government hospitals which is undoubtedly for the benefit of
the public.
Constitution of India: Art.47 - Right to health is integral to
the right to life - Government has a constitutional obligation to
provide health facilities - Art.47 reiterates the constitutional
obligation imposed on the State to improve public health - It is for
the State to secure health to its citizens as its primary duty - No
doubt, the Government is rendering this obligation by opening
Government hospitals and health centers, but in order to make it
meaningful, it has to be within the reach of its people, as far as
possible, to reduce the queue of waiting lists, and it has to provide
all facilities to employ best of talents and tone up its administration
to give effective contribution, which is also the duty of the
Government - The immediate need of the deprived sections of the
society to have proper health care is the reason behind the
Government policy of imposing a condition of compulsory service
and a default clause - The objective of the policy is to ensure that
specialist health care is extended to the have-nots also - The right
that is claimed by the Appellants is to make an individual choice to
carry on their profession which might be hindered by the policy
decision of the Government - On the other hand, the basic idea
behind the Government's decision is larger public interest - Right
to life guaranteed by Art.21 means right to life with human dignity
- While balancing communitarian dignity vis-à-vis the dignity of
private individuals, the scales must tilt in favour of communitarian
dignity - The laudable objective with which the State Governments
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have introduced compulsory service bonds is to protect the
fundamental right of the deprived sections of the society guaranteed
to them under Art.21 - The contention of the Appellants that their
rights 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 personal
service - Held: s.14 of the Specific Relief Act prohibits the
enforcement of contracts of personal service - It is trite law that
Courts do not ordinarily enforce performance of contracts of
personal character, such as a contract of employment - None of
the State Governments made an attempt to enforce the contracts
entered into by them with the appellants through the service bonds
- Constitution of India.
Contract Act, 1872: s.27 - Restraint on Profession - Plea of
the Appellants that compulsory bonds placed a restraint on their
profession and thus, would be contrary to s.27 of the Contract Act
- Held: A contract entered into by Appellants to serve the
government for a few years under reasonable terms cannot be
described as one in restraint of trade - The conditions of compulsory
bonds for admission to post-graduate and super-Speciality courses
in government medical colleges are not in violation of s.27 of the
Contract Act - All the Doctors who have executed compulsory bonds
shall be bound by the conditions contained therein - Taking note
of the fact that certain State Governments have rigid conditions in
the compulsory bonds to be executed by the Appellants and the felt
need of uniformity in the matter pertaining to the compulsory bonds,
suitable steps should be taken by the Union of India and the Medical
Council of India to have a uniform policy regarding the compulsory
service to be rendered by the Doctors who are trained in government
institutions - 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 7th Schedule to the Constitution
refers to coordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions. Entry 25 of List III of the 7th Schedule deals
with education, including technical education, medical education
ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND
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and universities, subject to the provisions of entries 63, 64, 65
and 66 of List I. Legislations can be made by the State Legislature
relating to medical education subject to the legislation made by
the Parliament. The Medical Council of India Act governs the
field of medical education in this country. Admittedly, there is no
provision in the Medical Council of India Act touching upon the
subject matter of compulsory bonds. Therefore, the States are
free to legislate on the subject matter of medical 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 has the
competence to issue executive orders under Article 162 of the
Constitution on matters over which the State legislature has the
power to legislate. The field of bonds requiring compulsory
employment is not covered by any Central Legislation. Therefore,
the submissions made on behalf of the Appellants that the States
lacked competence to issue the notifications as the field is
occupied 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 maintained
for running medical colleges with post-graduate and super
Speciality courses. The amount of fees charged from the students
is meagre in comparison to the private medical colleges.
Reasonable stipend has to be paid to the doctors. Above all, the
State Governments have taken into account the need to provide
health care to the people and the scarcity of super specialists in
their States. Consequently, a policy decision taken by the State
Governments to utilize the services of doctors who were
beneficiaries of Government assistance to complete their
education cannot be termed arbitrary. Also, Notifications imposing
a condition of compulsory service and a default clause are per se
not unreasonable. However, the period of compulsory service
and the exit should be reasonable. The State Governments and
the Armed Forces Medical College are directed to consider
imposing the condition of compulsory service period of two years
in default of which the Doctors shall recompense the Government
by paying Rs. 20 Lakhs. [Paras 18-19] [1036-H; 1037-A-B, G-H]
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Article 19:
2.2 The compulsory bond executed by the Appellants is at
the time of their admissions into post-graduate and super
Speciality courses. Conditions imposed for admission to a medical
college will not directly violate the right of an individual to carry
on his profession. The right to carry on the profession would
start on the completion of the course. At the outset, there is no
doubt that no right inheres in an individual to receive higher
education. 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 a
connection with the professional activity of a doctor on completion
of 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. The
Appellants have not been able to succeed in assailing the
Notifications for being violative of Article 19(1)(g) of the
Constitution. [Para 20] [1038-C-E]
Article 21
2.3 Article 21 of the Constitution of India imposes an
obligation on the State to safeguard the right to life of every
person. Preservation of human life is thus of paramount
importance. The Government hospitals run by the State and the
Medical Officers employed therein are duty bound to extend
medical assistance for preserving human life. Failure on the part
of a Government hospital to provide timely medical treatment to
a person in need of such treatment results in violation of his right
guaranteed under Article 21 of the Constitution. Therefore, in a
welfare State it is the obligation of the State to ensure the creation
and the sustaining of conditions congenial to good health. Article
47 of the Constitution reiterates the constitutional obligation
imposed on the State to improve public health. It is for the State
to secure health to its citizens as its primary duty. No doubt the
Government is rendering this obligation by opening Government
hospitals and health centers, but in order to make it meaningful,
it has to be within the reach of its people, as far as possible, to
reduce the queue of waiting lists, and it has to provide all facilities
to employ best of talents and tone up its administration to give
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effective 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 of
India (1981) 1 SCC 246 : [1981] 2 SCR 185; Paschim
Banga Khet Mazdoor Samity v. State of West Bengal
(1996) 4 SCC 37 : [1996] 2 Suppl. SCR 331; State of
Punjab v. Ram Lubhaya Bagga (1998) 4 SCC
117:[1998] 1 SCR 1120 ; Union of India v. Moolchand
Khairati Ram Trust. (2018) 8 SCC 321 : [2018] 7 SCR
939; Kharak Singh v. State of U.P. AIR 1963 SC 1295:
[1964] SCR 332 ; Vincent Panikurlangara v. Union of
India (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 health
facilities. The fundamental right to life which is the most precious
human right and which forms the ark of all other rights must
therefore be interpreted in a broad and expansive spirit so as to
invest it with significance and vitality which may endure for years
to come and enhance the dignity of the individual and the worth
of the human person. The right to life enshrined in Article 21
cannot be restricted to mere animal existence. It means something
much more than just physical survival. The right to life includes
the 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 and
expressing oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings. Every act
which offends against or impairs human dignity would constitute
deprivation pro tanto of this right to live and the restriction would
have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other fundamental
rights. To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which
constitutional values would be attained by emphasizing, among
other freedoms, liberty and dignity. So fundamental is dignity that
it permeates the core of the rights guaranteed to the individual
by Part III of the Constitution. Dignity is the core which unites
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the fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. The State's
obligations are not satisfied solely by refraining from imposing
limitations on the right to human dignity. The State must also
take 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; Francis
Coralie Mullin v. Administrator, Union Territory of
Delhi, (1981) 1 SCC 608: [1981] 2 SCR 516
- relied on.
2.5 The positive obligation of the State to uphold the dignity
of a larger section of the society is to protect the rights conferred
on them by Article 21 of the Constitution. The immediate need
of the deprived sections of the society to have proper health care
was the reason behind the policy decision of the Government.
The objective of the policy is to ensure that specialist health care
is 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 make
an individual choice to carry on their profession which might be
hindered by the decision of the Government. On the other hand,
the basic idea behind the Government's decision is larger public
interest. Private interest has to take a backseat when pitted
against public interest. [Para 31] [1041-F]
Mr. X v. Hospital 'Z', (1998) 8 SCC 296 : [1998] 1
Suppl. SCR 723; Sayyed Ratanbhai Sayeed (D) thr.
LRs & ORs.v. Shirdi Nagar Panchayat & Anr. (2016) 4
SCC 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 dignity
and of the equal and inalienable rights of all members of the human
family as the foundation of freedom, justice and peace. The
International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognizes the right of every person to the enjoyment
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of the highest attainable standard of physical and mental health.
ICESCR mandates the States Parties to achieve full realization
of the aforementioned right through the creation of conditions
which would assure to all, medical service and medical attention
in the event of sickness, inter alia. Right to life guaranteed by
Article 21 means right to life with human dignity. Communitarian
dignity has been recognised by this Court. While balancing
communitarian dignity vis-à-vis the dignity of private individuals,
the scales must tilt in favour of communitarian dignity. The
laudable objective with which the State Governments have
introduced compulsory service bonds is to protect the fundamental
right of the deprived sections of the society guaranteed to them
under Article 21 of the Constitution of India. The contention of
the Appellants that their rights guaranteed under Article 21 of
the Constitution of India have been violated is rejected.
[Paras 32-33] [1042-C-F]
2.7 Whether the conditions of the bond per se amount to
'forced labour' and thus violative of Article 23 (1) of the
Constitution. The Appellants who are required to work for a
short period on a decent stipend cannot complain that they are
made to perform 'forced labour', especially after the Appellants
have taken an informed decision to avail the benefits of admission
in government medical colleges and received subsidized
education. By no means, the service rendered by the Appellants
in Government hospitals would fall under the expression of 'forced
labour'. Article 23 (2) of the Constitution enables the State
Governments to require the Appellants to do compulsory service
in the Government hospitals which is undoubtedly for the benefit
of the public. [Paras 35-36] [1043-A-C, E]
Robertson v. Baldwin 165 U.S. 275 (1897) ; Butler v.
Perry (1916), 240 U.S. 328, 329 - referred to
3. Contract of Personal Service
Section 14 of the Specific Relief Act, 1963 prohibits the
enforcement of contracts of personal service. It is trite law that
Courts do not ordinarily enforce performance of contracts of
personal character, such as a contract of employment. Specific
performance of contract for personal service is not permissible
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under the Specific Relief Act, therefore, there cannot be a decree
for specific performance of a contract of personal nature. None
of the State Governments have made an attempt to enforce the
contracts entered into by them with the Appellants through the
service bonds. The compulsory bonds fall foul of the Specific Relief
Act. [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 the
government for a few years under reasonable terms cannot be
described as one in restraint of trade. The conditions of
compulsory bonds for admission to post-graduate and superSpeciality courses in government medical colleges are not in
violation of Section 27 of the Indian Contract Act, 1872. All the
Doctors who have executed compulsory bonds shall be bound by
the 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 have
rigid conditions in the compulsory bonds to be executed by the
Appellants and the felt need of uniformity in the matter pertaining
to the compulsory bonds, suitable steps should be taken by the
Union of India and the Medical Council of India to have a uniform
policy regarding the compulsory service to be rendered by the
Doctors who are trained in government institutions. [Para 41]
Harsh Pratap Sisodia v. Union of India (1999) 2 SCC
575 : [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 Dayal
Chandra Mohan v. State of Uttar Pradesh (1982) 1 SCC
39 : [1982] 1 SCR 113; Dr. Vinod Shankarlal Sharmaa
& Ors. v. The State of Maharashtra & Anr. (2013) AIR
Bom.1 ; People's Union for Democratic Rights v. Union
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of India (1982) 3 SCC 235 : [1983] 1 SCR 456 ;
Ch. Tikaramji v. State of Uttar Pradesh AIR 1966 SC
676 ; Modern Dental College and Research Centre v.
State of Madhya Pradesh (2016) 7 SCC 353 ;
Esso Petroleum v. Harper's Garage (Stourport) Ltd.1967
1 All ER 699 - referred to.
Case Law Reference
[1999] 1 SCR 466
referred to
Para 5
[2001] 2 Suppl. SCR 1
referred to
Para 5
[1984] 3 SCR 942
referred to
Para 5
[1955] 2 SCR 225
referred to
Para 5
[1982] 1 SCR 113
referred to
Para 5
[2016] 11 SCR 476
relied on
Para 5
(2013) AIR Bom. 1
referred to
Para 5
[1983] 1 SCR 456
referred to
Para 8
AIR 1966 SC 676
referred to
Para 9
(2016) 7 SCC 353
referred to
Para 9
[1996] 2 Suppl. SCR 331
relied on
Para 9
[1998] 1 SCR 1120
relied on
Para 9
[2018] 7 SCR 939
relied on
Para 9
[1964] SCR 332
relied on
Para 21
[1987] 2 SCR 468
relied on
Para 21
[2017] 10 SCR 569
followed
Para 21
[1981] 2 SCR 185
relied on
Para 24
[1996] 10 Suppl. SCR 279
relied on
Para 26
[1981] 2 SCR 516
relied on
Para 26
[1998] 1 Suppl. SCR 723
 relied on
Para 31
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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., Tanvir
Nayar, 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. Rekha
Pandey, G. S. Makker, A. K. Sharma, Ms. Madhumita Bhattacharjee,
K. V. Ramkumar, Ms. Jaswanthi, Arvind Kumar Sharma, Gaurav
Sharma, 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, Abhinav
Mukerji, 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, Raja
Chatterjee, Chanchal Kr. Ganguli, Piyush Sachdev, Ms. Runamoni
Bhuyan, Gaurav Sharma, Prateek Bhatia, Dhawal Mohan, Prasanna
Mohan, Ms. Ruchi Kohli, Shibashish Misra, Ashish Kumar Sinha, Chandan
Kumar 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 bonds
to be executed for admission to post-graduate medical courses and super
speciality courses. The Association of Medical Super Speciality Aspirants
and Residents has filed Writ Petition (Civil) No.376 of 2018 seeking a
writ of mandamus for quashing the compulsory bond conditions, as
imposed in the super speciality courses by the States of Andhra Pradesh,
Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra,
ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND
RESIDENTS v. UNION OF INDIA
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[2019] 12 S.C.R.
Orissa, 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 State
authorities after the completion of the concerned speciality courses.
2. Writ Petition (Civil) No.946 of 2018 is filed challenging the
Notification dated 10.06.2014 issued by the Government of West Bengal
by which every post-graduate trainee was directed to execute an
Indemnity Bond to serve the State Government for a period of three
years after successful completion of post-doctoral/MD/MS course and
for a period of two years after successful completion of the PG Diploma
course. If the trainees fail to serve the State Government as mentioned
above, they shall be liable to recompense the State Government a penalty
amount of Rs.10 Lakhs for each defaulting year. The Appellants seek
release of original documents without insisting on the payment of Rs.30
Lakhs as envisaged by the Notification dated 10.06.2014.
3. Notifications issued by the Department of Health and Family
Welfare, Government of West Bengal imposing the condition of execution
of compulsory bond at the time of admission to post-graduate courses
and super speciality courses were challenged in the High Court of
Calcutta. Notification dated 31.07.2013 which was assailed in the High
Court required the Appellant-doctors to work in the Multi-Speciality/
Super Speciality Hospitals, Secondary and Tertiary Level Hospitals in
West Bengal for a period of one year after completion of their postgraduate and post-doctoral education in State Medical Teaching
Institutions in West Bengal. Execution of bond at the time of admission
to post-graduate courses and super Speciality courses, providing that
they shall serve the State Government for a period of one year on
successful completion of the courses, failing which they will be liable to
recompense the State Government a penalty amount of Rs.10 Lakhs,
was made compulsory.Partially modifying the Notification dated
31.07.2013, the Government of West Bengal issued a Notification on
10.06.2014 by which the condition pertaining to one year service was
increased to two years. The compensation in case of failure by the
Doctors to serve in the State was enhanced to Rs. 30 Lakhs. 139 Doctors
who have acquired Degree of Bachelor of Medicine and Bachelor of
Surgery from various universities in the country challenged the
aforementioned Notifications in the High Court. The learned Single
Judge of the Calcutta High Court by a judgment dated 03.11.2017 upheld
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the Notification dated 31.07.2013. However, the Notification dated
10.09.2014 was held to be arbitrary and unreasonable. Aggrieved by
the judgment of the learned Single Judge, the State of West Bengal filed
an appeal before the Division Bench of the High Court. Some of the
Writ Petitioners who were aggrieved by the judgment insofar as it related
to the Notification dated 31.07.2013 being upheld also filed appeals. By
the impugned judgment, a Division Bench of the Calcutta High Court
held that both the Notifications dated 31.07.2013 and 10.09.2014 are
neither unreasonable nor arbitrary. The Division Bench set aside the
judgment of the learned Single Judge insofar as it related to the Notification
dated 10.09.2014 being quashed. The points urged before the High
Court of Calcutta and the findings recorded therein shall be dealt with
later.
4. The Appellants seeking admission to post-graduate courses in
Armed Forces Medical College, Pune were required to execute a similar
bond to serve in the Armed Forces Medical Services as Short Service
Commission Officers for a period of five years on completion of the
post-graduate courses. In case of failure to serve for five years, the
Appellants were required to recompense the college with Rs.25 Lakhs.
The above condition was included in the brochure for admission to PostGraduate Medical Courses for the year 2014-2015. A writ petition was
filed in 2017 by Appellants who were admitted in the post-graduate
courses in the year 2014-2015 challenging the validity of Clause 12 of
the Information Bulletin which required them to serve for five years in
the Armed Forces Medical Services. They sought a further direction
for return of their original documents without insisting on compulsory
service condition. The Writ Petition was dismissed by a Division Bench
of the Bombay High Court by judgment dated 02.04.2019 with costs
quantified 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 the
Appellants before the High Courts and judgments of the High Courts':
Calcutta High Court:
As stated above, the Division Bench of the Calcutta High Court
was concerned with two Notifications dated 31.07.2013 and 10.09.2014
issued by the Government of West Bengal imposing a condition of
compulsory service in the State of West Bengal for admission to post-
 ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND
RESIDENTS v. UNION OF INDIA [N. NAGESWARA RAO, J.]
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[2019] 12 S.C.R.
graduate and super Speciality courses in Government Medical Colleges
in the State. It was contended on behalf of the Appellants that they
became entitled for admission to post-graduate and super Speciality
courses in the government medical colleges in the State of West Bengal
on the basis of their merit in the All India Post Graduate Medical Entrance
Examination (AIPGMEE). According to them, additional eligibility
conditions cannot be introduced by the State Government in respect of
All India Quota candidates. Imposition of a condition of compulsory
service infringes their fundamental rights under Articles 14, 19 and 21 of
the Constitution of India. In any case, introduction of compulsory bonds
can only be by way of legislation and not by an executive order. They
relied on a judgment of this Court in Harsh Pratap Sisodia v. Union of
India1 to buttress their submission relating to the bar on the State in
fixing addition eligibility criteria. In this connection, they placed reliance
on an order passed by this Court in Anand Biji v. State of
Kerala.2Theyfurther contended that the insistence of a condition to serve
in the State compulsorily would result in reservations being made by the
State, which would be contrary to the judgment of this Court in Dr.
Pradeep Jain v. Union of India.3They further submitted that the service
bonds executed by the Appellants fall foul of Section 27 of the Indian
Contract Act, 1872. The Notifications that were issued by the State
Government were also challenged on the ground of unconstitutionality
as the State Government lacked competence to issue such notifications.
It was argued that all matters pertaining to medical education are covered
by the Medical Council of India Act, 1956. As the field was already
occupied by a Union Legislation, the State Government does not have
the competence to legislate on the same subject matter. In view of the
lack of legislative competence, the State Government does not have the
power to issue executive orders in respect of compulsory bonds.
On behalf of the State of West Bengal, it was argued that it was
well within the competence of the State Government to issue executive
instructions if the field was not occupied. The judgment of this Court in
Rai Sahib Ram Jawaya Kapur v. State of Punjab4 and Bhishambar
Dayal Chandra Mohan v. State of Uttar Pradesh5 were cited in support
1 (1999) 2 SCC 575
2(2001) 6 SCC 665
3(1984) 3 SCC 654
4(1955) 2 SCR 225
5(1982) 1 SCC 39
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of the said proposition. It was submitted by the State before the Division
Bench 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 was
that none of the fundamental rights under Articles 14, 19 and 21 were
violated as the Appellants chose to be admitted in government colleges
in the State of West Bengal without any protest or demur, and they
cannot be permitted to assail the conditions on their admissions at the
fag end of their courses.
The following issues were framed for consideration by the Division
Bench:
"(i) Could the State Government have introduced the bond
system by issuing the notifications which are under challenge
in the present proceeding or was legislation necessary for
that purpose?
(ii) Do the notifications impinge upon the freedom of the
petitioners to practice any profession, or to carry on any
occupation, trade or business guaranteed under Art.19(1)(g)
of the Constitution?
(iii) Were the writ petitioners aware of the bond system before
opting for West Bengal as their academic destination for post
graduate 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 Indian
Contract Act?
(v) Is there any such infirmity in the judgment and order
impugned before us as would warrant interference by this
Court?"
The first issue was answered in favour of the State by the Division
Bench holding that the provisions of Article 166 (1) & (2) were being
complied with before the Notifications were issued. The Division Bench
held that the Notifications issued by the State Government did not impinge
on the freedom of the Appellants to practice any profession or to carry
on any occupation, trade or business guaranteed by Article 19(1)(g) of
the Constitution of India. Article 162 of the Constitution refers to the
extent of the executive power of the State Government and that power
 ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND
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is not restricted only to matters on which legislation has already been
passed. The Division Bench observed that the State Government has
the right to fill the vacuum which exists due to the absence of any
legislation and which can be filled by the executive instructions in the
form of circulars/notifications. The Division Bench was of the opinion
that there is no fundamental right to pursue post-graduate medical
education, especially in government colleges where higher education is
subsidized. The Division Bench concurred with the findings of the learned
Single Judge that the Appellants, who secured admissions in post-graduate
medical colleges after taking an informed decision to receive education
at a highly subsidized rate, cannot be permitted to question the compulsory
medical service bonds. The point raised by the Appellants about the
disability of the State Governments in introducing additional eligibility
criteria was rejected by the Division Bench on the ground that the
judgments of this Court in Harsh Pratap Sisodia (supra) and Anand
Biji (supra) were not applicable to the facts of this case.