Bonds executed prior to July 22, 2022 illegal! Karnataka HC waives Compulsory Rural service bond for 447 MBBS Doctors

Bengaluru: In a recent order, the Karnataka High Court granted relief to 447 MBBS medicos by waiving their compulsory rural service for one year, as sought under the 2012 amendment of Rule 11 of Karnataka Selection of Candidates for Admission to Government seats in Professional Educational Institutions Rules 2006. The HC bench comprising Justice M Nagaprasanna granted this relief after noting that the State Government failed to notify the amended rule in the official Gazette for 10 years after it was finalised.

However, clarifying that the relief was only limited to the petitioners, the bench further held that the concerned law is valid and MBBS students pursuing their education in government medical colleges or government quota seats in private medical institutes cannot escape from rural service bond.

"Today the Rules are in place and the students who would get admitted to Government Colleges or students get admitted to private colleges under the Government quota cannot now escape the rigour of compulsory rural service or execution of bonds in terms of the Rules. It is only for these petitioners the action is held to be illegal in the teeth of the Rule not being in force as on the date on which it was sought to be implemented/imposed upon every student through execution of bonds," observed the HC bench.

These observations were made by the Court while considering a batch of pleas filed by MBBS students challenging the notification dated 08.06.2021 through which every candidate who joins MBBS in Karnataka under the Government quota and graduates in the year 2021 will have to undergo compulsory service and will have to execute a compulsory bond as a part of compulsory service in the allotted Government hospitals selected and posted based on merit through a process of counselling.

They also challenged the corrigendum dated 17.06.2021 through which Rule 11 of the Karnataka Selection of Candidates for admission to Government seats in Professional Educational Institutions Rules, 2006 was amended, directing all candidates who got admitted to MBBS under Government quota in any of the medical colleges run by the Karnataka Government or Government seats in private medical colleges who have completed MBBS course including internship, shall serve the Government. As per the amendment, students failing to comply with these bond terms shall have to pay a penalty ranging from Rs 15 lakh to Rs 30 lakh.

While considering the matter, the Court noted that the State Government had notified Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006. Under the said Act, Rules came to be notified viz., the Karnataka Selection of Candidates for Admission to Government seats in Professional Educational Institutions Rules 2006. Rule 11 of the said Rules of 2006 was amended by issuance of a notification on 17-07-2012.

The amended Rule 11 mandates the execution of a bond by candidates selected for medical seats in Government and private colleges run under the Government quota giving an undertaking that he/she is prepared to serve in any Government Primary Health Centres or Government Primary Health Unit in rural areas of Karnataka on completion of the course for a minimum period of one year and therefore, in default, the candidates becomes liable pay a penalty of Rs 10 lakh to the Government. The bench noted that these rules were to come into force from the date of their publication in the Official Gazette.

Challenging the requirement of rural service for the petitioners, the counsel argued that the bond that was sought under the amended Rule 11 was never notified and, therefore, the bond under the amended Rule 11 is illegal.

The petitioners' counsel further argued that the State Government does not have legislative competence to notify Rule 11 of the 2006 Rules. Moreover, he argued that the bonds were executed by the authorities at the time when the students joined medical courses and they were not even 18 years old at that time and therefore, the bonds are unenforceable.

On the other hand, the Government counsel argued that the Notification of 08.06.2021 issued under 2006 Rules cannot be questioned by the petitioner as at the relevant point in time, the Government quota students formed a different class against other classes of students. Further, since later the State made compulsory service uniformly applicable to one and all through the Karnataka Compulsory Service by Candidates Completed Medical Courses Act, 2012, it cannot be struck down on the ground that it is arbitrary.

Further, the State counsel contended that Rule 11 of the 2006 Rules was notified under Section 14 of the Capitation Fee Act which allows the Government to regulate the Rules for the purposes of the Act. One such purpose of the Act, according to the State, is the one that was notified back in 2006. He argued that there are several notifications under the 2006 Rules. Pointing out that regulation of admission in educational institutes is what Section 14 of the Capitation Act contemplates and, therefore, Rule 11 falls within the ambit of Section 14 as it seeks to regulate admission to educational institutes.

While considering the matter, the bench relied on the order of the co-ordinate bench of the High Court in the case of Bushra Abdul Aleem v. Govt of Karnataka (2020), where it was held that imposition of compulsory service does not take away or infringe the fundamental right of petitioners' right to practice.

Relying on this judgment, the HC bench upheld the State's power and observed, "Though the judgment was rendered qua the Indian Medical Council Act, 1956, the issue regarding legislative competence is the same; the contentions advanced are the same and, therefore what is answered by the co-ordinate Bench equally applies to the contentions that are now repeated in the case at hand. I am in respectful and complete agreement with what is considered and rendered by the co-ordinate Bench in the case of BUSHRA ABDUL ALEEM. Therefore, I decline to accept the contention that the State lacks legislative competence and the Rules should be set aside on the ground of it being violative of Article 19(1)(g) of the Constitution of India."

Further, the court also rejected the petitioners' contention that the 2012 Act is repugnant to the National Medical Commission Act, 2019. It primarily referred to the Supreme Court order in the case of Modern Dental College & Research Centre v. State of MP (2016), which recognized the State's power to regulate admission to courses referable to List-III, Entry 25 (Education, including technical education, medical education and universities).

"The Apex Court considers that the field of higher education strictly affects the growth and development of the State. Therefore, it is the prerogative of the State to take steps towards the welfare of the people. This being the law, the submission of repugnancy needs to be repelled, as the NMC Act comes about in the year 2019. The Act does not restrict the powers of the State to regulate education in terms of Entry-25 of List-III of the Seventh Schedule," it observed.

However, the bench noted that the Rules were notified in the Official Gazette only on 22.07.2022, ten years and five days after the amendment.

"It is further a matter of record that insistence on compulsory rural service for one year, after the completion of the course, is sought to be imposed on the basis of the afore-quoted notification, which amends Rule 11. In the event the candidate would not complete compulsory service, hefty fine is also found in the said amendment itself. The amendment did not see the light of the day till 22-07-2022, as it was gazetted only then. Therefore, the bond so sought to be executed, a bond of compulsory service, is in terms of a Rule that had not been gazetted, notwithstanding the fact that the Rule itself observes that it shall come into effect, only on its publication in the official gazette," it further observed.

Referring to the delay on the part of the State to notify the rules, the Court observed,

"The State appears to have been in deep slumber or having a siesta for 10 years. If the Rule itself depicts that it would come into effect on the date of its publication in the Official Gazette, the Rule that just stood on paper before publication was inchoate. On an inchoate Rule, the State has sought to impose certain conditions upon students."

Although the bench quashed the corrigendum and held that the bonds that are executed by the petitioners are contrary to the law, it clarified, "Liberty is reserved to the State Government to bring in any Circular/Corrigendum or even a law in tune with the rule now gazetted."

Further, the Court observed that the petitioners who are beneficiaries of allotment of a seat in the Government quota of the respective private medical colleges or even Government colleges are "making a hue and cry about rural service that they are mandatorily directed to render, by projecting various difficulties that the Doctors would face, if they are directed to undergo mandatory rural service."

At this outset, the Court noted,

"Mandatory rural service is not alien to the medical profession in any part of the globe, nomenclatures change, the concept is the same."

Referring to the practice of imposing rural service even in foreign countries, the High Court further observed,

"As observed by the Apex Court, a healthy body is the very foundation of all human activities. In a welfare state it is the obligation of the State to ensure the creation and the sustaining conditions congenial to good health of all citizens. When the students get in under a separate Government quota, at grossly subsidized fee, they cannot, but aid in the programme of the State to improve public health, more particularly, in the rural tribal and difficult areas. The object behind the prescription of the mandate of rural service is ostensibly to provide better health care in rural, tribal or those difficult areas of the citizens of this country, who would have no means to reach a doctor. The students should become part of the public health programme of the State. It is a dream, that a day would come that medical graduates, would themselves volunteer to render such service, in the rural areas and it is expected that the dream would shortly come true, so that the Society would become Egalitarian resulting in an ‘Utopian Land’."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/karnataka-hc-order-239580.pdf

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