1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 9121 OF 2005 WITH CIVIL APPLICATION NO.1615 OF 2007 Shri Rishi Mani Srivastava ] Aged: Adult, Occ: Education, ] C/o.Armed Forces Medical College ] Pune. ] ...Petitioner Vs. 1.The Director & Commandant ] Armed Forces Medical College, ] Pune. ] ] 2.Director General ] Armed Forces Medical College ] Ministry of Defence ] New Delhi. ] ] 3.Union of India ] Through the Secretary ] Ministry of Defence ] North Block, New Delhi. ] ...Respondents CIVIL WRIT PETITION NO.1091 OF 2006 WITH CIVIL APPLICATION NO.1590 OF 2007 Shri Amit Kumar Singh ] Aged: Adult, Occ: Education, ] 2 C/o.Armed Forces Medical College ] Pune. ] Through Guardina Father ] Shri Shishram Singh ] R/o.Laxmi Niwas, New Colony ] Village Gothra, P.O.Khetri Nagar ] District Jhunjhunu ] ...Petitioner Vs. 1.Lt.Col.Training Officer for ] The Director & Commandant ] Armed Forces Medical College, ] Pune. ] 2.Director General ] Armed Forces Medical College ] Ministry of Defence ] New Delhi. ] 3.Union of India ] Through the Secretary ] Ministry of Defence ] North Block, New Delhi. ] ...Respondents CIVIL WRIT PETITION NO.3813 OF 2006 WITH CIVIL APPLICATION NO.3096 OF 2007 Shri Shyam Tiwary ] Aged: Adult, Occ: Education, ] C/o.Armed Forces Medical College ] Pune. ] R/o.E-2/78, New Rajendra Nagar ] Raipur, Chatisgarh-492006 ] ...Petitioner Vs. 1.Lt. Col. Training ] Officer Director & Commandant ] 3 Armed Forces Medical College, ] Pune. ] 2.Director General ] Armed Forces Medical College ] Ministry of Defence ] New Delhi. ] ] 3.Union of India ] Through the Secretary ] Ministry of Defence ] North Block, New Delhi. ] ...Respondents Mr.P.B.Shah Advocate for Petitioner Mrs.S.V.Barucha with Mr. S.M. Shah for Respondents Major Anupam Chaure, Officer in Charge, Legal Cell, Head Quarters Maharashtra, Gujrat, Goa is present. CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of Reserving the Judgment: 13th February 2008 Date of pronouncing the Judgment: 22nd February 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1.The Petitioners in the above 3 petitions took admission in the Armed Forces Medical College, Pune (Army College) in the year 2000. They were required to execute a bond in the nature of an agreement at the time of admission. The Petitioners completed their course in the year 2005-2006. They underwent a medical test which revealed certain diseases suffered by them. 4 2. The Petitioner in Writ Petition No.9121 of 2005 is stated to be suffering from chronic pancreatitis. The Petitioner in Writ Petition No.1091 of 2006 is stated to be suffering from schizophrenia. The Petitioner in Writ Petition No.3813 of 2006 is stated to be suffering from Psoriatic Arthropathy. 3.It is the case of the Petitioners that they were not suffering from the aforesaid diseases at the time of gaining admission to the medical course for the Army College from where they have completed their medical studies. It was only during the course of their training that they have been afflicted with the aforesaid diseases. It is their case that these diseases are unavoidable and that the Petitioners are not responsible for having been so afflicted, (except in the case of the Petitioner in Writ Petition No.9121 of 2005 who suffered from pancreatitis). The Respondents admit that the Petitioners have not contributed to their diseases by their conduct. Even in case of the Petitioner in Writ Petition No.9121 of 2005 the only reply of the Respondents is that the Petitioner consumed alcohol though he was medically advised to refrain therefrom. It is not shown by the Respondents that the diseases of that Petitioner could have been contracted because of addiction to alcohol or that that Petitioners was so adicted. 5 4. The Petitioners have been declared Non Service Liability (NSL). Being so they are declared unfit to serve in the Army. The Petitioners have offered to render services in the Army but the Respondents have refused that offer on the ground that none of these Petitioners can be posted to any inconvenient or hardship-prone location and specially if the Country is on war and so cannot be allowed to be in Army service. 5. It is argued on their behalf that even in the normal course the newly recruited Medical Officers/freshers are initially sent to far away locations or hardship-prone places and the Petitioners cannot be given any preferential permission exempting them from such services. 6. It is contended that the rules of the Army require removal of the Petitioners from Army Services as NSL after medical tests show contracting of any disease by the Petitioners. It is not for this Court to interfere with the Eligibility Requirement of the Army. 7. The only question that has come up for consideration in these Petitions is that if the Petitioners have to be declared 6 NSL, they should be handed over their Degree Certificates so that they can pursue private civilian practice. The Petitioners applied for their Certificates from the Army Medical College. For the certificates to be issued to the Petitioners, Petitioners have been called upon to honour their commitments and undertakings under the Bond executed by them at the time of their admission to College. The Bond is marked Exhibit-A to these Petitions. It recites that the students have been selected for admission to M.B.B.S Degree course of the Armed Forces Medical College, Pune (Army College) with a view to commission them as a Medical Officers in the Armed Forces, as a Permanent Commissioned or a Short Service Commissioned Forces. The Cadets who were offered short service commission would be liable to serve for 7 years. For consideration of being granted the admission, the candidate agreed to several terms including the acceptance of the Commission to serve in the Army and undergo medical examination at periodical intervals during the training period. Clause 4 of the said agreement/bond shows that the cadet would be declared a Non Service Liability (NSL) if he is rendered medically unfit for any commission by way of diseases or disability detected at any time during his course or prior to the commission or if he has failed to put in the requisite attendance or he has failed in the M.B.B.S 7 examination. Under Clause 5 of the Bond/Agreement, in such event he would be liable to pay forthwith a sum limited to the maximum limit of Rs.15 lacs together with interest on the said money, calculated at the rate in force then. The interest is to be levied if the payment is delayed for more than 90 days from becoming NSL. 8. It is the case of the Petitioners that they are not liable to pay the Bond amount because they were not detected to be having any disease at the time of admission to the course and the disease suffered by them are not due to their misconduct but due to misfortune. These diseases are unavoidable and the Petitioners have not contributed to contracting them. 9. The Respondents do not claim the complete Bond amount of Rs.15 lacs from the Petitioners. Major Anupam Chaure, officer in charge, Legal Cell of the Respondents makes a statement that the Respondents claim only the return of the actual expenses incurred by them for medical education of the Petitioners. On our query as to the rules regarding return of expenses, the Respondents have fairly relied upon and produced before us the guidelines of waiver of Bond money in respect of medical cadets declared NSL on medical grounds. Under those guidelines reasonable 8 classification has been made in respect of NSL. Students who are declared to have become NSL are classified into 3 categories as follows : “Category I - declared medically unfit due to diseases/circumstances within their control like drug abuse, brawls/light injuries, accidents etc. Category II - declared medically unfit due to diseases/circumstances beyond their control, but who refused to undergo treatment. Category III - declared medically unfit due to diseases/circumstances beyond their control and who do not refuse treatment.” (undertakings supplied) 10. Since the Petitioners fall in category III having been medically unfit due to these diseases beyond their control and have not refused to undergo treatment therefor, the Respondents do not insist upon the payment of the entire bond amount from the Petitioners though they are declared NSL. The Respondents only claim to be refunded the actual medical expenses incurred by the College on the training of the Petitioners which spanned 4 ½ years. 11.The aforesaid guidelines of the Respondents show the amount to be recovered as per the aforesaid classification in 9 Clause 16 thereof which runs thus :- “16. Based on the above factors the Bond Money to be recovered be computed as under : (a) A basic minimum sum to be recovered in all cases for the free medical education and allied facilities provided by the Government. Till 1998 a sum of Rs.3 lacs covered the cost of free education, rations and other facilities provided during the entire duration of the course of 4 and ½ years. Now the bond money has been revised to Rs.15 lacs with effect from Jul.1999 for admission to AFMC Pune. Depending upon the year in which the cadet has been admitted and the year of study in which a cadet is made NSL he should pay the minimum amount as under:- 1998 & Earlier 1999 & Later (i) First Year Rs.35,000.00 (Cat-B) (ii) Second Year Rs.50,000.00 Rs.75,000.00 (iii) Third Year Rs.75,000.00 Rs.2,25,000.00 (iv) Fourth Year Rs.1,00,000.00 Rs.3,25,000.00 and thereafter.” 12. The Petitioners have contended that they are not liable to pay even that amount. Acceptance of their contention would 10 negate the very Bond/Agreement in its entirety. The very purpose and object of giving the Bond to render 7 years service of Indian Army would be frustrated and the enormous costs incurred by the Indian Army towards the education of the Petitioners would be wasted if the Petitioners are allowed to be entirely exempt from their liability under the Bond executed by them. 13. It is contended on the Petitioners' behalf that they are cured or almost entirely cured. The Petitioners have offered themselves for service. Having been found medically unfit for the army their offer has not been accepted by the Army. The Petitioners, therefore, can undertake civilian practice. They have a career before them. 14. The Petitioners want to be issued their Degree Certificates showing the successful completion of their Medical Decree Course. Expenses have been incurred by the Respondents on that course. The Petitioners would be in a position to recover the amount of expenses that have gone into the prosecution of their studies in their private practice. The Petitioners cannot serve in the Indian Army as per a strict rules of medical fitness. A classification made by the Respondents exempting the Petitioners from the strict and 11 complete liability under the bond, since they have not seen misconduct on the part of the Petitioners shows a reasonable classification based upon intelligible derferetia. Under the guidelines of the Respondent, entire exemption cannot be made. Part exemption is made on good ground. Rules cannot be held to be arbitrary or unreasonable. The liability of the Petitioners to make payment atleast to the extent of the expenses incurred for them in the bond is clear. 15. The contentions of the Petitioners that the contract between them and the College has become impossible of performance under Section 56 of the Indian Contract Act must, therefore, be rejected. 16. The Petitioners have relied upon the judgment of Division Bench of this Court in case of Rakesh Reddy and another Vs. The Union of India & Ors., in Writ Petition No.1028 of 1997 dated 4 th March, 1997 and in case of Soumer Roy Vs. Union of India in Writ Petition No.383 of 2002 dated 18 th November, 2002 . In both these cases the initial liability of Rs.3 lacs under the bond was reduced to Rs.1 lac since the Petitioners therein had contracted diseases and had been declared NSL due to diseases not voluntarily contracted over which those 12 Petitioners could have had any control. The initial order has been passed in 1997 and 2002. Judicial notice is required to be taken of the rate of inflation in the market and economy since those years. Consequently the amount of the bond has also increased from Rs.3 lacs for the cadets in those petitions to Rs.15 lacs in case of the Petitioners herein. Consequently the guidelines relating to part waiver of the bond amount as aforesaid must be upheld. A proportionate amount to be payable by the Petitioners is the expenses incurred for their own education and which would enable them to pursue private practice. 17. Consequently the writ prayed for by the Petitioners of setting aside the impugned order dated 19th March 2005 by which the Petitioners have been directed to make payment of further amount and the order to direct the Respondents to issue their No Objection Certificate to start their internship training at Civil Hospital cannot be granted. Instead only order that would meet the needs of justice would be to direct the Respondents to issue the NOC/Medical Degree Certificate required by the Petitioners upon payment of Rs.3.25 lacs by each of the Petitioners to the Respondents. 18. Order accordingly. 13 19. Rule is accordingly discharged. N.O.C. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)