Reproduced from: http://www.indialegallive.com/viewpoint/bonds-for-pg-seats-arm-twisting-doctors-71170, published August 25, 2019
Odisha has proposed a penalty of about Rs 1.5 crore on MBBS students in state-run colleges who don’t sign a bond with it. Is this reasonable and does it not infringe the Constitution?
Dr KK Aggarwal
Anything done under coercion is hardly likely to get the desired results. And if involving doctors, it is very sad, for they are the ones who save lives. An adequate means of livelihood cannot be secured by taking away without any reason the means of livelihood.
And that is precisely what the government of Odisha has done. Its health minister, Naba Kisore Das, announced the state government’s decision to hike the rates of the bond policy for postgraduate and super-specialty medical students in state-run medical colleges in an effort to retain doctors. The move has been met with criticism from the association of government doctors. As per the government, a penalty will be imposed on qualified doctors who do not serve in the state for two years after completing their degrees. Odisha is said to have more than 2,400 vacancies against 6,500-plus sanctioned posts of doctors. But can a bond be the answer for the deficiency? Surely not.
Singapore too has a bond policy but it is valid only if education is made free by the government or if one takes a tuition grant from it. Also, once such students finish their studies, they are assured of a job on a par with other jobs. In India too, if the government ensured a two-year job on a par with any other job in the country, the move could have been justified. But any job which exploits doctors, pays them less than in other parts of the country and makes them work in an area with no infrastructure does not make sense. Poor pay and bad working conditions will make doctors move to the private sector for education or to other states or countries.
To add salt to wounds, the penalty amounts in Odisha for such “transgressions” are to the tune of Rs 1.5 crore or Rs 2 crore. This is a prohibitive amount and under no circumstances can most postgraduates cough up that kind of money and will end up in jail if they are unable to pay up. This will also restrict poor students from taking such PG courses and make it affordable only for the rich who will take the PG and later pay the bond and get out of it. This amounts to getting a PG seat at a premium capitation of Rs 2 crore.
Earlier attempts by other state governments to tie down medical students have been challenged in courts. In March 2019, the Bombay High Court allowed 45 students to appear for the counselling round of admissions to PG medical courses in Maharashtra despite not serving their one-year internship bonds. The petitioners had challenged the validity of the government resolution of October 12, 2017, that made it mandatory for medical students to serve the bond before seeking PG admission in the state. From 2008, medical students in Maharashtra were required to compulsorily serve a one-year internship in a state-run, civic or military hospital after completing their MBBS course or pay Rs 10 lakh if they failed to do so.
On April 12, 2019, in Shitanshushekhar Manoharlal vs State Of Gujarat in the Gujarat High Court, Additional Advocate General PK Jani argued that Gujarat was spending huge money on medical education and therefore, it was the duty of the students to reciprocate by serving in rural areas. The Court said that this argument was difficult to accept.
It is true that as per the Directive Principles contained in Article 47 of the Constitution, it is the primary duty of the State to improve public health. Nonetheless, the Right to Education is also a right concomitant with the Fundamental Rights enshrined in the Constitution. The expenditure incurred by the State on medical education cannot be permitted to be recovered from a class of students who got admission in PG courses on their own merit on the ground that they had not served in rural areas.
The bench of Justice Bela M Trivedi further said that in the wake of the above, the earlier instructions regarding the PG students were unreasonable, unjust, unconscionable and infringed on Article 12 of the Constitution, and deserved to be quashed and set aside. Accordingly, the Court quashed and set aside the impugned government resolution (GR) and said that the bond/surety furnished by the petitioners, if any, pursuant to the said GR shall not be acted upon by the respondent authorities.
In another case related to the bargaining power of parties, the Supreme Court in Central Inland Water Transport Corporation Ltd & Anr vs Brojo Nath Ganguly in 1986 said that if a condition was incorporated in a contract which was found unconscionable, unfair and unreasonable, and was entered into by the party with the superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all, then it ought to be adjudged void.
As for the definition of “State” in Article 12, the State must not only act in conformity with the Fundamental Rights guaranteed by Part III but also in accordance with the Directive Principles of State Policy prescribed by Part IV. Clause (a) of Article 39 clearly provides that the State shall, in particular, direct its policy towards securing that citizens, men and women, equally have the right to adequate means of livelihood. It is also true that Article 41 requires the State, within the limits of its economic capacity and development, to “make effective provision for securing the right to work”. But the Court further said that these situations would amount to a violation of Article 14 and were contrary to the Directive Principles contained in Clause (a) of Article 39 and Article 41.
In a Supreme Court verdict in 2011, rendered in Rajanikanth vs Director of Medical Education, Tamil Nadu, it was said that a government does not have the right to force any doctor to sign a “service bond in return” for admission to a post-graduate course in a state-run institute.
Arm-twisting tactics don’t always work.
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India