IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 24443 of 2007(I) ----------------------------------------- PETITIONER(S): ------------------------- 1. DR.SHIFAS BABU.M., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF GENERAL MEDICINE, MEDICAL COLLEGE, KOTTAYAM. 2. DR.JINESH THOMAS M., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF GENERAL MEDICINE, MEDICAL COLLEGE, KOTTAYAM. 3. DR.ABDUSSAMAD P., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF OPHTHALMOLOGY, MEDICAL COLLEGE, KOZHIKODE. 4. DR.GEO PAUL C., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF ANASTESIA, MEDICAL COLLEGE, THRISSUR. 5. DR.SALEEM MOHAYIDEEN P.A., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF OBSTETRICS AND GYNAECOLOGY, MEDICAL COLLEGE,KOZHIKODE. 6. DR.ANEESH M.VARKEY, SENIOR/JUNIOR RESIDENT, DEPARTMENT OF ANAESTESIA, MEDICAL COLLEGE, KOZHIKODE. 7. DR.BUSHRA T., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF OPHTHALMOLOGY, MEDICAL COLLEGE,ALAPUZHA. 8. DR.NAJUMATH BEEGAM M., SENIOR/JUNIOR RESIDENT, DEPARTMENT OF OBSTETRICS & GYNAECOLOGY, MEDICAL COLLEGE, KOZHIKODE. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.RAVEENDRANATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2008 ALONG WITH WPC NO. 24643 OF 2007AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kss WPC.NO.24443/2007 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL P.G.COURSE FOR THE YEAR 2004 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE PROFORMA OF THE BOND PUBLISHED IN THE PROSPECTUS EXECUTED BY THE PETITIONERS. EXT.P3: COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR P.G.DEGREE/DIPLOMA COURSES 2003. EXT.P4: COPY OF ORDER DTD. 21/12/2006 ISSUED BY THE GOVERNMENT. EXT.P5: COPY OF THE ORDER DTD. 30/06/2007 ISSUED BY THE GOVERNMENT. EXT.P6: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P7: COPY OF THE ORDER DTD.11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXT.P8: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER. EXT.P9: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 4TH PETITIONER. EXT.P10: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 5TH PETITIONER. EXT.P11: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 6TH PETITIONER. EXT.P12: COPY OF THE ORER DTD.11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 7TH PETITIONER. EXT.P13: COPY OF THE ORDER DTD. 11/07/2007 ISSUED BY THE 2ND RESPONDENT TO THE 8TH PETITIONER. EXT.P14SERIES:COPY OF THE RANKED LISTS FOR APPOINTMENT TO THE POST OF LECTURERS IN DIFFERENT SPECIALITIES. EXT.P15: COPY OF THE NOTIFICATION PUBLISHED IN THE MALAYALA MANORAMA DAILY DTD. 6/07/2007. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE JUDGMENT DTD. 31/08/06 IN WP(C) 15909/04. EXT.R2(B): COPY OF G.O.(MS)154/07/H&FWD DTD. 30/06/07. EXT.R1(C): COPY OF G.O.(MS) NO.533/2008/H&FWD DTD. 07/10/2008. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = == = = = = = = W.P.(C) Nos.24443, 24643, 28367 & 27636/07, 24581, 19864, 20387, 25924, 29969, 30639 & 25239/08, 35103/07, 27145, 27943, 24917, 20386, 20499, 22437, 26726, 22339 and 24644 OF 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of November 2008 J U D G M E N T In this batch of cases, W.P.(C)Nos.24443,24643 and 28367/07 24581, 19864, 20387, 25924, 29969 and 30639 of 2008 are filed by Doctors who obtained admission to Medical Post Graduate Courses, under the State quota. The petitioners in W.P.(C) Nos. 27636/07 and 22437/08 and are also Post Graduate doctors who have secured admission under the State Quota, and have completed one year service in discharge of their obligations under the bond executed by them. In so far as W.P.(C) No. 24644/08 is concerned, the petitioners therein are now serving in discharge of their bond obligations. W.P.(C) Nos. 20386, 20499, 22437, 26726, 22339 & 24644 of 2008 are filed by the Medical Post Graduates who obtained admission under the All India quota. W.P.(C) Nos.24443, 24643/07 and connected cases - 2 - W.P.(C) Nos.25239, 27145, 27943 and 24917 of 2008 are filed by doctors who have completed the Super Specialty Courses. 2. The main issue raised in these writ petitions concerns the liability of the petitioners to serve the respondents in pursuance to the obligation undertaken by them as per the bond executed at the time when they secured admission for Medical Post Graduation and Super Specialty Courses. Alternatively they are also seeking salary and allowances on regular scale of pay, relying on the principle equal pay for equal work. Since the main issues are common, these writ petitions are heard and disposed of together and for the sake of convenience, I shall be referring to the facts as pleaded in W.P.(C) No. 24443/07. 3. The petitioners have undergone the Post Graduate Courses during the year 2004-05. Ext. P1 is the prospectus that was published by the 1st respondent. Clause XII of the prospectus, required those selected to Post Graduate Courses to execute two bonds in Rs.50 Kerala Stamp Paper each, at the time of joining the course to the effect that: (a) He/she shall not discontinue the P.G. course. W.P.(C) Nos.24443, 24643/07 and connected cases - 3 - (b) They will serve the Government for Five Years, after the completion of the Course, if the Government requires so. It is also stated that in the subsequent years' prospectus clause XIII (h) provided that if the Government is not in a position to offer job in the concerned Specialty either in the Medical Education Services or Health Services within two years of completion of the course, the candidates will be absolved of the bond obligation. 4. Coming back to the facts in W.P.(C) No. 24443/07, in pursuance to Ext. P1 prospectus, the petitioners executed bonds in the formats specified in Annexures V and VI of the prospectus. Ext. P2 bond executed as per Annexure V format to the extent it is relevant, reads as under: “Now the condition of the above written obligation is that in the event of the Bounden not conforming to or observing the rules and conditions, regarding the progress of his study or interrupting or discontinuing his course, at any time within the expiry of the validity of the Post Graduate select list or after its expiry or participating in a strike or leave the training course on account indiscipline or misconduct on his part or failing to serve the Government for a period of five year if required to do so within a period of six months after qualifying for full registration after completing the course, or for other reasons not considered valid and satisfactory by the Secretary to Government of Kerala, Health and Family W.P.(C) Nos.24443, 24643/07 and connected cases - 4 - Welfare Department whose decision in this behalf shall be final, the Bounden and the sureties shall jointly and severally pay and refund to the Government on demand and without demur all the amount spent on the Bounder on account of the said course of studies, together with the liquidated damages of Rs.31.250 (Rupees Thirty One thousand Two hundred & Fifty) if the bounden discontinues the courses within the validity period of the select list or Rs.300,000 (Three lakhs) if the bounden discontinues the course after the expiry of the validity of the select list. This decision of the Secretary to Government of Kerala, Health and Family Welfare Department as to the commission of a breach or as to any indiscipline or misconduct on the part of the Bounden as also the amount of compensation payable and as to whether the Bounden has or has not performed and observed the conditions and Bounden obligations under these presents shall be final and binding on the Bounden and the sureties”. 5. The bond as per Annexure VI, the relevant portion of which reads as under: “NOW the condition of the above written obligation is that in the event the Bounden after successful completion of the Post Graduate course of study to which he was selected fails to serve the Government for a period of five years, the Bounden and sureties shall forthwith pay to the Government all moneys spent on this account and interest as fixed by Government then in force for Government loans from the date of demand not exceeding Rs......... together with a sum of Rs.7.5 lakhs/ 10 lakhs as liquidated damages and in the matter of deciding what moneys are to be paid by the Bounden and the sureties and the sureties and decision of the Government shall be final and legally binding on the bounden and sureties and W.P.(C) Nos.24443, 24643/07 and connected cases - 5 - upon the payment of such sum the above written obligation shall be void and of no effect otherwise this shall be remain in full force and effect”. 6. Accordingly, the petitioners completed their course. By Ext. P4 Govt. Order, issued on 21.12.2006, the Government directed that the students who successfully complete the Post Graduate course from the Government Medical Colleges in the State will be compulsorily appointed in public health institutions as “SNEHITHAN/SNEHITHA DOCTORS”. As far as Diploma holders are concerned they were to serve for six months and as far as DNB/PG Degree holders are concerned, two year period was specified. However, in this order, it was specified that these postings are not applicable for those who came through All India quota. Subsequently, Government issued Ext. P5, by which, sanction was accorded to appoint those under the bond obligation as Senior Residents on contract basis in the Government Medical/ Dental Colleges for 1 year. 7. In pursuance to Exts. P4 and P5, Government issued Exts. P6 to P13 orders appointing the petitioners in this writ petition. By these orders, petitioners were appointed on contract W.P.(C) Nos.24443, 24643/07 and connected cases - 6 - basis in the concerned departments of the Medical Colleges, on a consolidated pay of Rs.15,000/- per month for a period of one year or till regular/PSC hands join duty, whichever is earlier. It is at that stage, this writ petition was filed, seeking to quash Exts. P4, P5 and P6 to P13. There is a further prayer to quash Ext. P2 proforma in which the bonds were executed and to declare the same as void being arbitrary, unfair, unreasonable and opposed to public policy being violative of the fundamental rights of the petitioners. Subsequently, the petitioners got the writ petition amended by filing I.A. No. 15912/07 with an added prayer that they should be paid pay scale sanctioned by the Government to the regular appointees to the post to which they were appointed. 8. Thus, the main contention raised is regarding the invalidity of the bond that was executed by the petitioners. Alternatively they are also saying that they are entitled to pay and allowances on a par with doctors regularly appointed to the post to which they are appointed, applying the rule equal pay for equal work. 9. In so far as the contention raised by the learned counsel W.P.(C) Nos.24443, 24643/07 and connected cases - 7 - for the petitioners regarding the invalidity of the bond is concerned, the whole argument is set up on the basis of the Apex Court judgment in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly {AIR 1986 S.C. 1571}. In this judgment, paragraph 90 is what was relied on and I extract the same for convenience: “90. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to “uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible form the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art. 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an W.P.(C) Nos.24443, 24643/07 and connected cases - 8 - exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances”. 10. Though the legal position canvassed by the learned counsel for the petitioners is as held by the Supreme Court in the aforesaid case, still I am not persuaded to apply the law laid down W.P.(C) Nos.24443, 24643/07 and connected cases - 9 - by the Apex Court to the facts of these cases. In the above case, the Apex Court was concerned with the validity of a clause in an appointment order issued by the Central Inland Water Transport Corporation Limited, an authority under Article 12 of the Constitution of India, reserving the power to dismiss an employee summarily. It was while dealing with the validity of that provision in the appointment order, the Apex Court held the aforesaid clause in the contract of employment to be vitiated on the ground that the same was entered into between parties who are having unequal bargaining power. Proceeding further, the Apex Court also held that such a contract is opposed to public policy and is unconstitutional. However, in this case, the students were admitted to Government Medical Colleges where they are given coaching, at expenses incurred by the State and the pleadings would show that the expenses per student is in the region of Rs.30 lakhs. Thus, it is the students who are the beneficiaries of the expenditure incurred by the State, to make them post graduate or super specialty doctors, who are called upon to execute bonds undertaking to serve the State for a specified period once they complete the course. A W.P.(C) Nos.24443, 24643/07 and connected cases - 10 - bond of such a nature is supported by adequate consideration. In other words, the beneficiaries of the Post Graduate and Super Specialty Medical courses conducted by the State incurring huge expenditure are only partially repaying to the State by serving it for a limited period, for which again, they are paid by the State. 11. It is in that background alone, one has to appreciate the validity or otherwise of Ext. P2 bond executed by the students. There is absolutely no material to conclude on the alleged unequal bargaining power, which is a factual issue that the petitioners have to prove, having regard to their financial circumstances, limited options available etc. Further, the petitioners have executed the bond without protest, undergone their courses in the Medical Colleges run by the State, at the expense of the State and are challenging the bond only after getting qualified and that too, when they were called upon to discharge the obligation undertaken by them. By their conduct they are estopped from raising such pleas. Therefore, I am not prepared to apply the law laid down by the Apex Court in the judgment referred to above, ignoring the facts of the case and hold that the bond executed by the students on the W.P.(C) Nos.24443, 24643/07 and connected cases - 11 - basis of which they have acquired Super Specialty and Post Graduate degrees, is illegal or unconstitutional for any reason. Further, a batch of writ petitions challenging the bond, have been dismissed by this Court in the judgment in W.P.(C) No. 15904/2004 and connected cases, copy of which is Ext. R1A. Therefore I do not find anything that invalidates the bond executed by the students. That apart, I also should notice that though the Government had the freedom to call upon the students to work for a period upto 5 years, the Government have only called upon them to work for one year and there is absolutely nothing unfair in such action of the Government. On the other hand, the Government was extremely fair to the students and for that reason, I cannot hold that the action of the Government in calling upon the students to work is illegal for any reason. 12. Now what remains is the claim of the petitioners for salary and allowances based on the principle equal pay for equal work. To apply the principle equal pay for equal work, this court should find that the Doctors who are serving under bond obligation and Doctors appointed after regular recruitment belong to one W.P.(C) Nos.24443, 24643/07 and connected cases - 12 - class of employees and that the former set of Doctors are discriminated by State. Unless there is wholesale and complete identity between the two groups, the principle of equal pay for equal work is inapplicable. In my considered opinion the Doctors who are to serve the State pursuant to the bond obligation undertaken by them and those Doctors who are recruited on regular basis belong to two different classes. If that be so, petitioners cannot complain of discrimination to require this Court to apply the principle equal pay for equal work and direct payment on that basis. 13. As already noticed, initially, the petitioners were ordered to be paid Rs.15,000/- per month. However, during the pendency of these writ petitions, Government have issued G.O(MS) No.533/2008/H & FWD dated 7.10.2008. Paragraph 5 of the said Govt. order reads as under: “5. For doctors who have successfully completed Medical PG/Diploma/DNB Course/Super Specialty Degree Course (except service quota candidates) from Government Medical Colleges, Self Financing Medical Colleges (under Government Quota) and Co-operative Medical Colleges (under Government Quota), and have not completed/done Compulsory Government Service W.P.(C) Nos.24443, 24643/07 and connected cases - 13 - after MBBS. a) The doctors will be appointed in public health institutions under Medical Education Service/Health Services. b) Medical PG Degree/DNB Certificate Holders will be paid a remuneration of Rs.23,000/- (Rupees Twenty three thousand only) per month plus Rural area allowance as per norms. Super specialty Degree holders will be paid a remuneration of Rs.25,000/- (Rupees twenty five thousands only) per month. PG Diploma holders appointed under DHS/DME will be paid a remuneration of Rs.21,000/- (Rupees twenty one thousands only) plus Rural area allowance as per norms. c) The candidates who have not successfully completed in the PG course and are posted to colleges/health institutions under Compulsory Government Service will be eligible for Rs.15,000/- (Rupees fifteen thousand only) plus Rural/Difficult area allowance as per norms. d) The above conditions will be applicable for all doctors who come through All India Quota also.” The learned Sr. Govt. Pleader submits that though the said Govt. Order will be prospective in effect, the benefits as per the Govt. Order will be available to those who are working as on 7.10.2008 for their future period of appointment and to those who join hereafter in pursuance to the bond obligations. From the terms of the revised benefits, it can be seen that the Medical P.G. doctors will be paid a remuneration of Rs.23,000/- per month plus rural area allowance as per norms. Super specialty degree holders will be W.P.(C) Nos.24443, 24643/07 and connected cases - 14 - getting Rs.25,000/- and the PG Diploma holders will be paid Rs.21,000/- plus rural area allowance as per norms. It is stated that the terms as revised are better than even those appointed on regular basis. For these reasons, the case canvassed by the petitioners for higher pay based on the principle equal pay for equal work, does not merit consideration. 14. In so far as the petitioners in W.P.(C) Nos. 20386/08, 20499/08, 26726/08 and 22339/08 are concerned, they are Post Graduate doctors who secured admission under the All India quota. They have raised an additional contention that though they have executed bonds like those who have secured admission in the State quota they cannot be called upon to work in pursuance to the bond obligation for the reason that Ext. P4 order dated 21.12.2006 specifically provided that the postings ordered therein are not applicable for those who came through All India quota. However, in my view this argument of the learned counsel is only to be rejected. Admittedly clause XII of the prospectus itself provides that the terms regarding bond are also applicable to students coming from All India Quota to State quota and vice versa, provided the admission W.P.(C) Nos.24443, 24643/07 and connected cases - 15 - relates to the same year and within the State. Now that the petitioners have secured admission on the basis of the prospectus as above, it is not open to the petitioners to raise a plea at this belated stage that they are not liable to discharge the obligations under the bonds which they have voluntarily executed. Further Ext. P4 Government Order only excluded them from the “postings” ordered thereunder, and that does not mean that they are discharged from the bond obligations altogether. Therefore, this contention of the aforesaid petitioners who have secured admission in the All India quota is unsustainable and is rejected. 15. In WP(C) No.24581/08 and certain other cases, petitioners have a further grievance about one of the conditions in the order appointing them. This condition requires them to produce the certificates in original to prove age, qualification, medical council registration etc. The order further proceeds to state that the certificates and other documents submitted at the time of joining the college will be released to the candidates only on satisfactory completion of the period of posting. It is stated that this provision disables them from seeking admission for higher courses. W.P.(C) Nos.24443, 24643/07 and connected cases - 16 - According to the petitioners, it is permissible for them