ASN 1 WP-2176.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2176 OF 2010 Atul S.Sarogi and ors. ..Petitioners. Vs. The State of Maharashtra and ors. ..Respondents. WITH WRIT PETITION (L) NO.2293 OF 2010 Dr. Prakash R. Singh and ors.. ..Petitioners. Vs. The State of Maharashtra and ors. ..Respondents. WITH WRIT PETITION NO.2298 OF 2010 Dr. Debanjan Sen and ors. ..Petitioners. Vs. The State of Maharashtra and ors. ..Respondents. WITH WRIT PETITION NO.605 OF 2011 ASN 2 WP-2176.sxw Aditya S. Yadav and ors. ..Petitioners. Vs. The State of Maharashtra and ors. ..Respondents. WITH WRIT PETITION NO.614 OF 2011 Dr. Sachin S. Veer and ors. ..Petitioners. Vs. The State of Maharashtra and ors. ..Respondents. Mr. V.M.Thorat with Ms. Pooja Thorat for the Petitioners. Mr. D.A.Nalawade, Government Pleader with Mrs. Geeta Shastri, AGP. for the Respondent-State. Mr.A.D.Shetty with Jystona Pandhi for Union of India. Mrs. Geeta Joglekar for Bombay Municipal Corporation. CORAM : MOHIT S. SHAH, C. J. AND D. G. KARNIK, J. Tuesday, 5 th April, 2011 PC : In this group of five petitions common questions of law and facts have been raised about eligibility of the students who were admitted to the first year MBBS course under the Government Medical Colleges and Colleges being run by the Municipal Corporation for ASN 3 WP-2176.sxw Greater Mumbai. The controversy centres around the requirement to execute a bond by all the students who were admitted to the aforesaid colleges in the years 2004-05 and 2005-06. Writ Petition Nos. 2293, 2298, and 2176 of 2010 are filed by 69 students who were admitted in the All India quota which is 15% of the total intake capacity of the Government/ Municipal Corporation Colleges. Writ Petition Nos. 614 of 2011 and 605 of 2011 are filed by 100 local students who were admitted to the Municipal Corporation Medical Colleges in the year 2004-05 and 2005-06 respectively. 2 When All India Pre-Medical/Pre-Dental Entrance Examination 2004 was to be conducted, the Central Board of Secondary Education had issued a brochure on 1st December, 2003 which was in the nature of Information Bulletin and Application Form. Rule 14 provided for Method of Selection and admission to MBBS/BDS Course . In these petitions, we are concerned with clause (e) of the Rule 14(B) which reads as under:- “The conditions relating to the start of session/deposit and refund of fee and other charges/execution of bond/service in rural/tribal area etc., if any shall be as per rules and regulations of the respective College/University/State Government”. (Emphasis supplied) 3 As far as admission to the first year MBBS/BDS course in the Government Medical Colleges and the Colleges run by the Municipal Corporation and the Government aided Health Science Institutions is ASN 4 WP-2176.sxw concerned, the Directorate of Medical Education and Research, Maharashtra State issued a brochure called MH-CET-2004 Application Form and Information Brochure laying down procedure for selection to courses in Health Sciences for 2004-05. The first part of the brochure under the title “Introduction” provided that the entrance examination for the admission to all Health Sciences Courses in State of Maharashtra for the year 2004-05 shall be conducted by Competent Authority appointed by Government of Maharashtra. The entrance examination shall be conducted for the seats at all Government/Corporation and Government aided Health Science Institutions. This shall also be applicable to government quota seats in private colleges and to the remaining seats in private colleges if their management so desires. 4 Paragraph 14 of the said brochure provided for Service Bond in the following terms:- “Candidates selected against the seats of Government Colleges for admission to MBBS/BDS courses will be required to sign a bond to serve the Government of Maharashtra of local self government or Defence services for a period of two years, failing which he/she will be required to pay Rs.5,00,000/- (Rupees Five lakh only) for the default. Additionally, he/she will be required to sign an undertaking to the effect that he/she will not leave India within a period of five years from the date of obtaining the decree”. ASN 5 WP-2176.sxw 5 The case of the petitioners is that students, who secured admission to the first year MBBS/BDS course in the Medical Colleges run by the Municipal Corporation, Mumbai in the 15% All India Quota through conselling in New Delhi, were not informed about any such requirement to execute a service bond in the sum of Rs.5,00,000/- and they were only informed that they will have to give an undertaking to pay a sum of Rs.1,00,000/- if they want to leave India within a period of five years after completing the MBBS Course. The petitioners’ case is that, it is only when the petitioners were going to appear for the final MBBS examination some time in 2009, they were called upon to execute a bond in the sum of Rs.5,00,000/- which provided that the petitioners will have to serve Corporation Hospitals for a period of two years as and when they were offered such appointment in the Corporation Hospitals failing which the concerned students will have to pay a sum of Rs.5,00,000/- to the Corporation. It is the petitioners’ case that since they would not have been allowed to appear at the examination if such bonds were not executed, the petitioners were compelled to execute such bonds, but the action of the respondent-Corporation in calling upon the students to execute such bonds is illegal as it was not supported by any law and contrary to the representation made to the petitioners at the time of admission in the year 2004. Specific reference is made by the petitioners upon the document produced at Exhibit A in Writ Petition Lodging No.2298 of 2010. It is contended that it was the said document which was shown to the students at the time of admission to 15% All India quota in 2004-05. The relevant paragraph of the said document reads as under:- ASN 6 WP-2176.sxw 7 (i) (ii) (iii) (iv) Bond, if any to be executed by the AIQ candidates, if so, the conditions of the bond Bond amount, if any Whether the amount has to be paid in cash at the time of admission, if no, the details thereof. Is the amount paid is adjustable in case of transfer through 2nd counseling. Enclose copy of proforma of the bond, if any. Yes, Agreement. The conditions of bond for completion of the course and after completion of course to serve the Corporation for two years or in default pay Rs.1,00,000 (Rs. One Lack only). The students shall on passing the University examination after undergoing internship or retating houseman ship as aforesaid and obtaining his/her MBBS degree shall not go abroad within a period of 5 years and in such event he/she shall reimburse an amount of Rs. 1,00,0000/-(sic) (One Lac only) towards the expenditure incurred by the Corporation on his/her education in additional to the liquidated damages as per the condition No.09 in the Bond, Provided that where the students is desirous of continuing the postgraduate studies and if the Corporation in their absolute discretion grants to the students to do so, decision of the corporation in that behalf shall be final and binding on the student and the aforesaid provisions contained herein shall become applicable on the students passing such past graduate. ASN 7 WP-2176.sxw 6 It is submitted that it was in view of the said representation held out by the Corporation that the petitioners opted for and secured admission to, the first year MBBS course run by the Municipal Corporation in Greater Mumbai and that but for such representation the petitioners would have obtained admission in other medical colleges in Maharashtra or any other Medical College outside the State of Maharashtra. 7 On the other hand, the case of the State Government is that All India Pre-Entrance Examination 2004 Information Bulletin and Application Form published on 1st December, 2003 clearly informed all the candidates that the conditions relating to the execution of a service bond in rural or trible area were to be governed as per the rules and regulations of State Government and that Paragraph 14 of the Information Bulletin for MH-CET-2004 issued by the Medical Education Department of the State Government informed the candidates in clear terms that the candidates will be required to sign a bond to serve Government of Maharashtra or Local Self Government or Municipal Corporation failing which candidates will have to pay Rs.5,00,000/- in default and that the candidate was also required to sign an undertaking that he/she will not leave India within a period of five years from the date of obtaining the degree. ASN 8 WP-2176.sxw It is submitted that in view of the specific rules which were applicable in the relevant year 2004-05 and also in the year 2005-06, the petitioners cannot take any advantage of any delay on the part of the concerned College Administration as the petitioners were permitted to prosecute studies in the year 2004-05 and for further period of four years without executing any such bond. As soon as it was brought to the notice of the college administration that students were required to execute bonds for Rs.5,00,000/-, they were called upon to execute such bonds in March, 2009 and for such delay the students cannot be allowed to wriggle out of their liability to execute service bonds. It is also contended on behalf of the State Government that the Medical Education is highly subsidized. The amounts of fees fixed by the State Government and the Municipal Corporation recovered from the students prosecuting the studies in the colleges run by the State Government and the Municipal Corporation for Greater Mumbai were token amounts as compared to the expenditure actually incurred by the Municipal Corporation and the State Government. It was therefore, that the condition requiring selected candidates to render services as Doctors in the Government or the Municipal Corporation Hospitals was incorporated in the brochure even as early as or even prior to the stage of appearing for the entrance examination for All India quota and entrance examination for admission to all the seats in the Health Science Institutions in the State Government. ASN 9 WP-2176.sxw 8 As far as the Central Government is concerned, affidavit in reply has been filed by Deputy Secretary in the Ministry of Health and Family Welfare, Government of India very recently on 25th March, 2011. The deponent of the affidavit has produced letter dated 15th March, 2011 which reads as under:- Nirman Bhawan, New Delhi-110011, Dated 15th March, 2011. 1. Secretary, (Health & ME) of all States/UTs 1. DME of all States/UTs 2. Principal/Dean/Director of all Govt. Medical Colleges/Institutes Sub: Clarification of the Hon’ble Supreme Court Order dated 22-4-93 in C. A.No.1944 of 1993. Sir, I am directed to enclose herewith letter No.U-12021/5/99- MEC dated 27-12-2001 along with order of Supreme Court dated 22-4-93 in C. A.No.1944 of 1993 (Anand S. Biji Vs.State of Kerala and ors.) pertaining to additional eligibility conditions/bonds for All India Quota. The details are given in the above mentioned letter. You are requested to follow the directions of the Hon’ble Supreme Court of India dated 22-04-93 strictly to avoid legal complications in the matter. Yours faithfully, Encl: As above. Sd/- (Prof. Mangala Kohli) Asstt. Director General(ME) ASN 10 WP-2176.sxw Along with the affidavit copy of the order dated 27th July, 2001 is also placed on record. 9 On the basis of the above communication dated 15th March, 2011 and the Supreme Court order dated 27th July, 2001, it is vehemently contended by the learned counsel for the petitioners that any condition requiring the candidates to render service in any Public Health Institution after passing MS-CET examination or to pay a sum in lieu thereof, amounts to additional eligibility criteria and/or burden on the candidates which is not permissible as per the decision of the Apex Court referred to in the above communication. 10 Mr. Nalawade, learned Government Pleader for the State of Maharashtra and Mrs. Geeta Joglekar, learned counsel for the Municipal Corporation on the other hand submitted that neither the State Government nor the Corporation has imposed any additional eligibility criteria by laying down the condition for service bond. It is submitted that the said condition was incorporated in the Information Boucher as far as back in the year 2004 and was not added after the petitioners took admission in the first year MBBS course in the colleges run by the Municipal Corporation for Greater Mumbai or the State Government. As regards the order dated 27th July, 2001 of the Apex Court, the learned counsel for the said respondents have submitted that the said decision followed the earlier decision dated 5th February, 1999 ASN 11 WP-2176.sxw of the Bench of three Hon’ble Judges of the Supreme Court in Harsh Pratap Sisodia Vs. Union of India and ors. 1999 (2) SCC 575. It is submitted that the said case of Harsh Pratap Sisodia the three Judge Bench of the Apex Court was concerned with a situation where Delhi Medical College refused to admit the appellant therein on the ground that he had passed Intermediate Examination conducted by the Uttar Pradesh Board without Biology and then passed Biology as his subject next year and therefore, did not fulfill the eligibility criterion which provided that the student must have passed HSC examination in one and the same attempt. The Apex Court repelled the said contention by holding that the relevant rule did not require passing of HSC examination in one and the same attempt. It was in this context that the Apex Court laid down the principle that criteria of eligibility for allotment of a seat to MBBS course against the 15% All India quota have been fixed by the CBSC in consultation with the Medical Council of India under a modified scheme approved by the Supreme Court and therefore the Supreme Court held that under the scheme, the States and colleges cannot insist upon satisfaction of the “State requirements” as a condition to grant admission to the allottees against 15% All India quota. It is on these facts that the Supreme Court held that it is not open to any State to fix any additional eligibility criteria in cases of candidates who fall under 15% All India quota. 11 Having heard the learned counsel for the parties, we find considerable substance in the submissions made by Mr. Nalawade learned Government Pleader for the State and Mrs. Geeta Joglekar ASN 12 WP-2176.sxw learned counsel for the Municipal Corporation for Greater Mumbai that the candidates who appeared for all India Pre-Medical Entrance Examination 2004 were clearly informed by the Information brochure published as far as back on 1st December, 2003 that the conditions relating to execution of service bond etc. were as per the rules and regulations of the Colleges/University/State Government. The Information Bulletin published by the Directorate of Medical Education and Research of the State of Maharashtra before holding MH-CET-2004 examination clearly provided the following condition in Paragraph-14:- “SERVICE BOND-Candidates selected against the seats of Government Colleges for admission to MBBS/BDS courses will be required to sign a bond to serve the Government of Maharashtra or Local Self Government or Defence services for a period of two years, failing which he/she will be required to pay. Rs. 5,00.000/- )Rupees Five Lakh only) for the default. Additionally, he/she will be required to sign an undertaking to the effect that he/she will not leave India within a period of five years from the date of obtaining the degree”. (emphasis supplied) 12 It thus clear that all the rules and regulations of the relevant year clearly provided that the student/candidate securing admission to the first year MBBS will be required to sign a bond to serve the Government of Maharashtra or Local Self Government or Defence services for a period of two years failing which candidate will be required to pay Rs.5,00,000/- in default. Additionally, the candidate will be required to sign an undertaking to the effect that he/she will not leave India within a period of five years from the date of obtaining the degree. ASN 13 WP-2176.sxw 13 Of course, Mr. Thorat, learned counsel for the petitioners made an attempt to suggest that this condition was only applicable to the Government Medical Colleges and not the Colleges run by the Municipal Corporation for Greater Mumbai. This submission cannot be accepted . In the first place Introduction to Information Boucher issued by the Directorate of Medical Education and Research, Government of Maharashtra specifically provided that this brochure was applicable for admissions to all the seats of State Government Colleges, Corporation Colleges and the Government aided Health Science Institutions (in Maharashtra). The Municipal Corporation for Greater Mumbai would definitely be covered by the expression “Corporation”. Moreover, Paragraph 14 of the brochure provided for a bond to be signed to serve the Government of Maharashtra or Local Self Government or Health Services. The petitioners are not in a position to dispute the contention of the respondent-authorities, and of which judicial notice can be taken, that the fees recovered from the students studying in the Government Medical Colleges and the Medical Colleges run by the Municipal Corporation are much less than the fees charged by the private unaided colleges . Looking to the expenses on medical education, which is highly subsidized in Government and Municipal Corporation Medical Colleges, the scheme requiring students of such institutions taking subsidized medical education to render service to the Government/Corporation hospitals cannot be said to be unreasonable or arbitrary. ASN 14 WP-2176.sxw 14 We also find considerable substance in the submission of the learned counsel for the State Government and the Municipal Corporation that when the executive instructions contained in the brochure, published well in advance even before the commencement of the concerned entrance examination, provided for execution of such service bond by the students of All India quota, merely because the officers in charge of the administration of the concerned colleges did not bother to call upon the students to execute the bonds and allowed them to prosecute their studies without execution of service bonds, did not absolve the petitioners from their liability to execute such bonds. When the concerned authorities realized this they called upon the petitioners to execute such bonds and the petitioners did execute such bonds in March, 2009, by prior to their final MBBS examination in October-November 2009. The petitioners thereafter, did not choose to challenge such action of the State Government or the Municipal Corporation for a period of one year from March, 2009 and it was only in March, 2010 or thereafter that the present group of petitions came to be filed . The petitioners cannot therefore, be permitted to challenge the action of the respondent authorities in requiring the petitioners to execute service bonds in the sum of Rs.5,00,000/- in case of failure to render service. 15 As regards the petitioners’ contention based on the order dated 27th July, 2001 of the Supreme Court, we find considerable substance in the submission of the learned Government Pleader for the State Government and the learned counsel for the Municipal Corporation ASN 15 WP-2176.sxw that in Harsh Pratap Sisodia (supra) the Supreme Court explained that in the guise of State requirements, the State Government cannot insist upon any additional requirement that student ought to have passed HSC examination in one and some attempt. In the instant case, neither the State Government nor the Municipal Corporation have laid down any eligibility criteria. Therefore, no fault can be found with the impugned action of the respondent authorities in requiring the petitioners to execute service bonds which they did execute voluntarily in March, 2009. 16 For the reasons aforesaid, we find no merit in the petitions filed by the students securing admission in Government Colleges and the Municipal Corporation Colleges under 15% All India quota. 17 As regards the other two petitions i.e. W.P. Nos. 605/2011 and 614/2011 filed by the students who secured admission under 85% State quota, the petitioners are on much lower footing than the students of All India quota and the above reasoning will apply to them with much greater force and therefore, no further discussion is called for. 18 In the result, we find no merit in any of the petitions. The petitions are therefore, dismissed. 19 Before parting with the matters, we may refer to one more development. Although the scheme for giving service bond as prevailing in 2004 to 2007 required the students to render services for two years ASN 16 WP-2176.sxw and to pay a sum of Rs.5,00,000/- in default, subsequently, the scheme has been modified in the year 2008 onwards and as per the said modification, the students are required to give an undertaking that they will render the services of one year after completing MBBS course or after completing Post Graduate medical course and in default to pay Rs. 10,00,000/-. 20 Mr. Thorat, learned counsel appearing for the petitioners submits that since the service period has been reduced from two years to one year from 2008 onwards, the benefit of such reduction should be available even to the students who were admitted in the year 2004 or 2005. It is further submitted that the students may secure admission to a Post Graduate course in a university out side the State of Maharashtra and the concession of deferment to render service after the completion of Post Graduate course outside the State and reduction in period of service in Government or Corporation hospitals in the State of Maharashtra, to one year should be made applicable to the petitioners also. 21 On both the counts, Mr. Nalawade, learned Government Pleader for the State of Maharashtra states that the benefit of reduction of the two year service period to one year will be made available even to those students who were admitted to Medical Colleges prior to 2008 and that the provision of deferment of one year service to students securing admission to post graduate course will also be made available to the candidates who take admission to the Post Graduate course in any ASN 17 WP-2176.sxw other State within India. Mrs. Geeta Joglekar learned counsel for the Municipal Corporation for Greater Mumbai states that the Municipal Corporation will also adopt the stand of the State Government. 22 Subject to recording the above statements, the petitions are dismissed. Liberty to apply in case of any difficulty. CHIEF JUSTICE D.G. KARNIK, J.