Submit Undertaking to serve Bond Service Postings for getting back Certificates: HC tells Doctors

Jaipur: While considering a batch of pleas filed by doctors seeking return of educational certificates, the Jaipur Bench of Rajasthan High Court recently directed them to submit an undertaking on affidavit and declare that they will accept the bond service appointments offered to them for a period of two years.

The undertaking should also mention that in case the doctors do no accept the appointments, they will deposit the bond penalty of Rs 10 lakh, the court has further mentioned.

"...as far as return of documents is concerned, it is directed that on writ petitioners submitting an undertaking on affidavit before this Court that if they are not inclined to accept appointment offered to them, they will deposit the amount payable under the bond and on submission of an affidavit before the concerned authority regarding filing of undertaking before this Court along with copy of the undertaking, the documents/credentials/certificates/marksheets shall be returned to the respondents," mentioned the HC bench comprising Justices Mohan Shrivastava and Sameer Jain.

The main pleas were filed by several doctors who have not yet fulfilled their bond service conditions and therefore the authorities have not returned their educational certificates. Filing the pleas, the doctors urged the court for getting back the certificates. While the single judge bench ordered in favour of the petitioner PG doctors, the state challenged the order and approached the Division Bench of the High Court.

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It was contended by the Advocate General that the Single Judge failed to properly appreciate the legal ground that no writ of mandamus could be issued in favour of the PG doctors who did not fulfill their public duties to the State. He further pointed out that as a matter of public policy, the State while granting admission to the petitioner students in the PG courses, asked them to execute a bond and promise to serve the State for a specific period of time and in case of not serving the state, they would pay a specific amount as bond penalty.

Further, the counsel for the State submitted that it was decided that the PG doctors would be known as "Post Graduate Medical Consultant" and shall be employed on fixed monthly remuneration.

Referring to the Single Judge order directing to release the documents, the counsel for the State further pointed out that if the documents were returned to the doctors, the very purpose of getting the bonds executed would be frustrated as the doctors could walk out of their undertaking anytime.

On the other hand, the counsel for the doctors submitted that the State made the appointments on the basis of the rank/merit option of the candidates in NEET PG Examination, acting in utter disregard to the merit based selection or appointment and allowed the walk-in interview method, which was not permission under the order dated 12.07.2022.

Further, the doctors' counsel submitted that the State's order of appointment by constituting a separate service on fixed remuneration on contract basis goes against the spirit of the terms and conditions of the bond and also order dated 12.07.2022 and Notification dated 04.08.2022.

Referring to the issue of retention of the original documents, the doctors' counsel argued that neither in the bond, nor in any other undertaking of the petitioners, or under the law, the withholding of documents is allowed. He further submitted that retention of the original documents as an arm twisting mechanism to ensure deposit of forfeiture amount under the bond, is impermissible in law. He also pointed out that the petitioner doctors have never refused or denied to serve but the challenge to the process of appointment was made when the State did not follow the merit based formula as mentioned in the order dated 12.07.2022.

After considering the submissions made by both the parties, the HC bench also took note of the revised bond service conditions, as per which the PG doctors will have to serve for two years instead of five and the penalty amount is Rs 10 lakh.

At this outset, the bench referred to the Supreme Court order in the case of Association of Medical Superspeciality Aspirants and Residents and Others Versus Union of India and Others, where the top court had upheld the power of the State governments for implementing bond service conditions to provide healthcare facilities to people.

"Therefore, the scheme of execution of bond by taking undertaking to serve for a minimum stipulated period and on failure to deposit the forfeiture amount under the bond is a condition which is binding on the PG candidates," noted the HC bench.

"However, at the same time, as the bond does not contain detailed process through which the appointments have to be made, the process of appointment, terms and conditions thereof, may be laid down by the State though such terms and conditions must necessarily confirm to fairness and appointment through procedure known to Article 14 of the Constitution of India," it further added.

"Moreover, the object and purpose of such appointment is to advance public cause of providing proper health services by engaging superspecialists, in the matter of such appointment, merit has to be kept in mind. Any procedure which undermines and destroys merit based consideration, would necessarily be against the laudable purpose for which the scheme of obtaining a bond and taking undertaking from PG candidates to serve for minimum two years has been taken and the very object and prupose would be defeated," the bench observed in this context.

Referring to the way of appointment by the State, the bench further opined that the process of appointment adopted by the State "has to be consistent with principle of consideration based on merit."

Therefore denying to stay the single bench order, which had issued several directions for the process of appointments, the bench also observed, "The submission of learned Advocate General that though the State had come out with the scheme of appointment as per order dated 27.09.2022, that having not been disapproved, the direction for de novo exercise was not warranted, does not appeal to us to stay, in entirety, the direction as given by the learned Single Judge."

Emphasizing on the merit-based selection, the order further mentioned, "Those, who are higher in order of merit on the basis of NEET cannot be denied appointment against the post and on the terms and conditions under order dated 12.07.2022 merely because an alternative scheme has been evolved by the State on 27.09.2022."

Regarding the return of documents, the bench observed, "we do not find any finding recorded by the Hon'ble Supreme Court that retention of original documents until payment of the forfeiture amount would be justified."

Therefore, while the bench did not stay the single judge bench order, it ordered,

"On the aforesaid prima-facie considerations on the basis of the arguments of learned counsel for the parties, while we are not inclined to stay the directions, which have been issued by the learned Single Judge in the matter, however, as far as return of documents is concerned, it is directed that on writ petitioners submitting an undertaking on affidavit before this Court that if they are not inclined to accept appointment offered to them, they will deposit the amount payable under the bond and on submission of an affidavit before the concerned authority regarding filing of undertaking before this Court along with copy of the undertaking, the documents/credentials/certificates/marksheets shall be returned to the respondents."

"As soon as the process of selection & offer of appointment upon completion of exercise undertaken in compliance of the directions of the learned Single Judge is completed, the parties would be at liberty to mention the case for further consideration. Those who have already been appointed, shall, however, continue till new appointments take place and the candidates, upon offer of appointment after de novo exercise, accept and join," the bench further mentioned in its recent order.

The matter has been listed for further hearing in January 2023 with liberty to the parties to seek an early hearing.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/rajasthan-hc-order-194357.pdf

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