Bengaluru: In a striking verdict, the Karnataka High Court has ordered the state government not to compel the candidates, who completed PG courses under the government quota, to undergo counselling till after a Comparative Merit List of all the candidates in question, barring those who are already serving the government, is prepared and operated.
The case concerns practising Physicians who availed the Government Medical Seats and joined their Post Graduate (PG) Degree/ PG Diploma courses in Clinical/Non-clinical subjects, in the academic years 2015 and 2016. The petitioners availed the said seats by furnishing the undertaking to serve the Government for a minimum period of three years by executing a duly stamped Bond.
After accomplishing the said degree/diploma course in the year 2018, they secured the Provisional Degree Certificates from the Rajiv Gandhi University of Health Sciences (RGUHS).
They moved the court assailing the Notification issued by the Director of Medical Education whereby, amongst others, they are asked to “mandatorily attend Counselling” for the purpose of deploying their services to the Government for the benefit of public at large.
The counsel for the petitioner doctors contended against the counseling notification issued by DME stating, “Some of the petitioners with intent to pursue certain speciality courses have been studying to take up the ensuing examinations which are scheduled to be held by the National Board of Examinations in the second half of December 2018 and if they are forced to attend the counselling, the same would disrupt their endeavor to make value addition, which in turn could affect their career advancement.”
Terming the counselling notification discriminatory, unjust, arbitrary and unreasonable, the petitioners presented various contentions. Relevant are under:
- The individual Bonds have been executed by almost all the petitioners barring a few, under the coercion inasmuch as but for their execution on the spot of and at the time of admission to the courses in question, they could not have secured the allotment of Government seats; the act of Director of Medical Education in enforcing the undertaking given through these Bonds amounts to State practising “bonded labour”.
- Through the impugned counselling, petitioners are required to serve in the posts of senior residents/tutors/specialists and the present incumbents of these posts are drawing a handsome salary in the prescribed pay scales whereas, the respondents hold out a paltry sum of Rs.45,000/- per month as the monthly stipend and therefore, the same constitutes beggar… , if the challenge to the Counselling Notification were to be held sustainable, the petitioners should be directed to be granted the salary in the pay scales on par with regular incumbents of the said posts, on the principle of remunerative equality.
- The exercise in question does not conform to norms, leaving much scope for abuse of discretion in allotting the posts/places to the candidates; if at all the challenge in principle were to fail, the counselling body has to prepare a merit list of all the candidates and the allotment should be on the basis of comparative merits of the candidates; in the absence of norm ensuring fairness, the petitioners cannot be compelled to undergo counselling, since it amounts to subjecting the citizens to arbitrary and whimsical action of the State
The counsel appearing on behalf of the respondents in the case, the state government, RGUHS and DME counter-contended all the points submitted by the petitioner PG Medicos. The counsel submitted:
- The petitioners were not minor children nor were under any legal disability, when they being already graduates with a good academic record, had knowledgeably and voluntarily executed the Bond. It is unconscionable on the part of the petitioners to take up such a stand for assailing the Counselling Notification inasmuch as had they not availed the Government seats, that too at comparatively concessional rates of fees, the said seats would have eventually gone to other deserving candidates who would have scrupulously abided by such undertaking
- The candidates availing the government seats pay paltry sums of money as the fees prescribed for the courses compared to the general fee structure in other institutions; a huge amount of money is invested by the State in these candidates on the assurance that they would serve the public for a minimum period of three years and that the State itself on its own has fixed a monthly stipend of Rs.45,000/-, taking into consideration all relevant factors; the counselled candidates are not the permanent appointees/regular recruits to the posts in which they are now being asked to work and therefore, they cannot equate themselves with the regular recruits whose appointment is preceded by a due selection process; thus, their claim for ‘Remunerative Equality’ is misconceived.
After hearing all the contentions and submissions laid by the parties, the bench of honourable Justice Krishna S Dixit observed that the plea presented by the doctors specifying bonded labour “does not avail”. It stated:
“… Had the petitioners not availed the Government Seats, the same would have eventually gone to other deserving candidates, who would have scrupulously abided by the undertaking, as rightly contended by the learned AAG…
… The contention of the Petitioners that enforcing the undertaking given by them on a stamped Bond, amounts to ‘bonded labour’ or ‘forced labour’ that is prohibited by Article 23 of the Constitution of India, is misconceived and wrongly put forth, notwithstanding that the Apex Court has given an expansive significance to the term ‘forced labour’…”
The petitioners are asked to serve only for a period of one year, the remaining two having been waived by the State by filing a sworn affidavit dated 30.11.2018,… This is a great concession which the State has conferred on the petitioners, the court observed and noted,
“The petitioners contend that if the authorities prepare the merit list and thereafter, make the allotment of places/positions, there will be no scope for grieving at all. They further contend that the so called merit list attached to the Statement of Objections filed by the official respondents is only a marks list of the students who selected the Government seats during the counseling and not the List of Comparative Merits of the candidates. There is some force in this contention.”
“The candidates shall not be compelled to undergo counselling under the impugned Counselling Notification dated 28.09.2018 till after a Comparative Merit List of all the candidates in question, barring those who are already serving the Government, is prepared and operated,” the judge directed the state government and ordered it to take urgent remedial action. It stated,
“To ensure fairness and absence of arbitrariness, a merit list of all the candidates who were called for compulsive counselling has to be prepared as is normally done for the admission to educational institutions or to the public employment. How the merit list should be prepared and what the modalities of the counselling should be are the matters for the State to ponder over. However, till the same is done, the candidates cannot be compelled to undergo the counselling process.”
The contention of the doctors that the impugned Counselling Notification is selectively discriminatory inasmuch as all other candidates who have availed the Government seats in all the preceding years after furnishing similar undertaking have been left to go free, has also some force, the court noted.
“Had those candidates also been called for serving the State, the period of service which the candidates now called for counselling, are required to serve probably could have been pro tanto reduced and this would hopefully infuse a sense of justice and fairness to the grieving Petitioners.”
The contention of the Petitioners that some of them are likely to join higher courses of studies for making value addition and therefore, they should be spared during the tenure of the said courses, being reasonable and fair, is sustainable, the court held adding,
“Such of the candidates who are slated to join higher courses or the like could be spared subject to the rider that they would come back to serve the Government after the course is over. By doing this, the Undertaking given by the candidates is not dissolved, but its compliance is deferred to the advantage of the candidate and also of the public at large which would avail the services of more qualified doctors than otherwise. Since the Addl. Advocate General has assured such relaxation, subject to all just exceptions, this grievance of the petitioners finds redressal at the hands of the State itself. Therefore, there is no need to deliberate more on this.”
“… The candidates who before long are slated to go for higher or specialty courses recognized by the RGUHS/Medical Council of India, shall be deferred from counselling on proving their credential by some cogent material, till after the course is complete, regardless of its result, subject to the rider that they Undertake to come back for service after the course period; this concession is available only once… ”
Attached is the detailed judgment below: