D 2014 GJHC240444892014-305

C/SCA/18840/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 18840 of 2014
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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1 Whether Reporters of Local Papers may be allowed to see the

judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the

judgment ?
4 Whether this case involves a substantial question of law as to

the interpretation of the Constitution of India or any order made
thereunder ?
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SHITANSHUSHEKHAR MANOHARLAL SHARMA & 64 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR AMIT PANCHAL FOR MS SHIVANI RAJPUROHIT(5377) for the Petitioner(s)
No.1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,
34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59
,6,60,61,62,63,64,65,7,8,9 IN Special Civil Application No. 18840 OF 2014
MRS. FALGUNI D PATEL FOR the PETITIONER(s) No. IN Special Civil Application
Nos. 2016/16, 2887/18, 2901/18, 10163/2015, 10164/2015, 21973/2016, 16380/17,
21089/17, 22806/2017, 23289/2017, 17429/2018, 17434/2018, 4961 OF 2019
MR BHARGAV HASURKAR, ADVOCATE FOR the PETITIONER Nos. 1-12 in

Special Civil Application No. 2690/2016
MS SAMTA PATEL, ADVOCATE FOR MS VIRAJBEN A JOSHI FOR the

PETITIONER(s) 1-153 IN Special Civil Application No. 5344 OF 2019
MR AR THACKER for the Respondent(s) No. 2 IN Special Civil Application No.

4961 OF 2019.
MR PK JANI, AAG with DR. VENUGOPAL PATEL for the Respondent(s) No. 1-
STATE
MRS VD NANAVATI(1206) for the Respondent(s) No. 2/ Medical Council of India
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 12/04/2019
CAV JUDGMENT
1. Rule in Special Civil Application Nos. 17429 of 2018, 17434 of
2018, 4961 of 2019 and 5344 of 2019. Learned AGP Dr. Venugopal
Patel waives service of notice of Rule on behalf of respondentState.
Learned Advocate Mr. AR Thacker waives notice of service of Rule on
behalf of respondent No. 2 in Special Civil Application No. 4961 of
2019 and learned Advocate Mrs. VD Nanavati waives service of notice
of Rule on behalf of respondent No. 2 in Special Civil Application Nos.
Page 2 of 33
17429 of 2018, 17434 of 2018 and 5344 of 2019.
2. The core issue involved in these writ petitions centres around
the validity of the Government Resolution dated 28.06.2013 issued by
the respondentState Government, in Health and Family Welfare
Department, requiring the petitioners and other students to furnish a
fresh bond of Rs.10,00,000/ in the form of bank guarantee or a
solvency certificate for the properties worth Rs. 12,00,000/ as a
guarantee to serve in rural areas for three years after the completion
of their Post Graduate Degree/Diploma Courses from the Government
Medical Colleges, in addition to the Bond executed by them at the
time of taking admission in the Under Graduate Courses, and extend
the same for a further period of three years.
3. For the determination of the said issue, the factual matrix of the
matter is taken from Special Civil Application No. 18840 of 2014,
having been filed first in point of time.
4. The petitioners at the time of filing the petition, i.e. Special Civil
Application No. 18840 of 2014 were the students pursuing their Post
Graduation Courses in the Medicine and Surgery with the respondent
No. 3 Government Medical College, after having been admitted by the
Gujarat University as per the Rules and Regulations. According to
them, they being meritorious students, were admitted to the
Page 3 of 33
respondentGovernment College on the basis of the merit list prepared
for the admission, after the counseling conducted by the admission
committee constituted by the respondent No. 1, in accordance with
the directions issued by the Supreme Court in its order dated
23.03.2012 passed in I.A. no. 16 of 2013 in Civil Appeal No. 1944 of
1993 in the matter of Anand Biji Versus State of Kerala and Others.
The respondent No. 2 Gujarat University had issued the forms for
admission to the Post Graduate Degree and Diploma Medical Courses
for the academic year 20132014. At the relevant time, there was no
mention about requirement of execution of any bond, though there
was a mention in Clause 11 of the said form that the respondent No. 2
would have right to introduce any new rules or regulations or make
any change in any of the existing rules or regulations. However, the
petitioners came to know about the Circular dated 06.12.2014 issued
by the respondent No. 3 which required the petitioners to furnish a
bond of Rs. 10,00,000/ in the form of Bank Guarantee or Surety
against the property worth more than Rs. 12,00,000/. On the inquiry
made by the petitioners, they came to know that the Government of
Gujarat, in the Health and Family Welfare Department had issued a
G.R. dated 28.06.2013 requiring the students pursuing the Post
Graduate Degree/ Diploma Courses to execute such Bond for serving
in rural areas for a period of three years after the completion of their
post graduation, and further requiring them to extend the Bond
executed by them at the time of taking admission in the Under
Page 4 of 33
Graduate Courses, for a further period of three years. According to the
petitioners, such condition of bond was never brought to the notice of
the petitioners at the time of admission and the said condition being
extremely harsh and arbitrary was required to be quashed and set
aside. Such a harsh condition would not be conducive to most of the
petitioners, who though are highly meritorious, otherwise hail from
very humble economic background and it was virtually impossible for
them to execute such bond. It is further case of the petitioners that
the Government of Gujarat in Health and Family Welfare Department
had also issued another circular dated 13.10.2014 introducing a
classification amongst the students similarly situated, exempting the
students who were pursuing post graduation in the nonclinical
subjects from the purview, ambit and scope of G.R. dated 28.06.2013.
According to the petitioners, there was no rationale in meting out
such discriminatory treatment at the hands of the respondent
authorities with regard to the execution of the bond by the students
pursuing clinical subjects and the students pursuing nonclinical
subjects in Post Graduation Courses. The petitioners therefore have
challenged the validity of the G.R.s dated 28.06.2013, and dated
13.10.2014, and the circular dated 06.12.2014 issued by the
respondent No. 3. Similar petitions have been filed by the other
petitioners pursuing the Post Graduate Degree /Diploma Courses in
the subsequent years, basically challenging the legality and validity of
the G.R. dated 28.06.2013 issued by the respondent No. 1 State.
Page 5 of 33
5. The respondents emphasizing the requirement of the execution
of the bond have contended inter alia in their counter affidavits that
practice of the execution of bond for pursuing medical courses is in
prevalence since the year 1972. Under Article 47 of the Constitution of
India, the State is duty bound to improve the public health and to
provide better health services to the rural population of the State.
Considering the acute shortage of MBBS Doctors in the rural areas,
the State Government had introduced the scheme to tender bond to
serve at the rural areas after completion of the MBBS from the
Government Medical Colleges. Initially the bond amount was for Rs.
5,000/ in the year 1972 which was gradually increased from time to
time, and as per the G.R. dated 28.06.2013 in question, the said
amount has been enhanced to Rs. 5,00,000/ for Under Graduates
and Rs.10,00,000/ for the Post Graduates. However the Government
vide the G.R. dated 13.10.2014 had exempted the condition of bond
for nonclinical subjects like Anatomy, Physiology, Biochemistry, PSM,
Forensic Medicine and Pharmacology, as the posts of nonclinical
subjects were not available in the Primary Health Centers and
Community Health Centers. It is also contended that vide resolution
dated 22.05.2018, the State Government had deleted the condition of
Bond for the students who got admission from 15% All India Quota for
Under Graduate Courses, and for the students who got admission
from 50% All India Quota for the Post Graduate Courses at
Page 6 of 33
Government Medical College, in view of the order passed by the
Supreme Court. It is further contended that the State Government is
imparting medical education charging very nominal rate of fees as
compared to the fees charged by the self finance colleges, and that the
State Government incurs heavy expenditure for imparting the medical
education in the Government Medical Colleges. The students are
getting stipend, however they are not willing to work in rural areas
and therefore the State Government had introduced the policy
requiring them to execute the bond as per the G.R. dated 28.06.2013.
The said policy decision of execution of bond was very much within
the knowledge of the petitioners at the time of counseling and taking
admission. Even the Rules 17 and 18 of the Admission Rules dated
18.05.2007 lay down the condition of Bond and undertaking to be
tendered by the students, and accordingly all the students had given
the written undertaking to furnish the requisite bond within 10 days,
at the time of taking admission. It is further stated that such
condition for execution of bond is also in existence in other States like
the State of Maharashtra, Punjab, Kerala, Orissa, Madhya Pradesh,
etc,. Considering the huge amount which is being spent by the State
government for preparing the Doctors and for payment of stipend to
them during the course of their study, it was imperative for the State
Government to require the students to execute such bond, more
particularly for rendering their services in the rural areas for three
years after completion of Under Graduation and for three years after
Page 7 of 33
completion of Post Graduation.
6. The respondent No. 1 has also filed further affidavit to
substantiate the requirement of execution of bonds by the students
contending inter alia that there is a huge backlog of vacant posts of
Doctors at the various health centers in rural areas and semi urban
areas in the State of Gujarat. Further elaborating the situation, it has
been stated that as per the details available as on 05.10.2018, there
are 4498 sanctioned post of medical officers in Class II category at
various institutions in the State, out of which 3029 posts have been
filled up, whereas 1469 posts are still vacant. As per the data
available as on 31.08.2018, there are 679 sanctioned posts of
Specialist Doctors ClassI at the Community Health Centers in the
State out of which 75 posts have been filled up and 604 posts are still
vacant. As per the details of last five years, the total amount of bonds
undertaken by the students for the period from 2013 to 2018 was Rs.
95,34,60,000/, out of which bonds have been executed against 3717
students from whom the amount of Rs. 41,52,80,000/ has been
recovered. Lastly, it is submitted that there being scarcity of medical
officers, the State government would legitimately expect that the
students who have studied in Government Medical Colleges, render
their services in the rural areas as per the policy of the Government.

7. The Court while issuing Notice to the respondents in Special
Page 8 of 33
Civil Application No. 18840 of 2014 on 24.12.2014 had granted an ad
interim relief in terms of para. 10(D)(II), whereby the respondents were
restrained from taking any adverse action including withholding the
payment of stipend on the ground of nonexecution of the bond and
security documents, pursuant to the G.R. dated 28.06.2013 and
13.10.2014 issued by the respondent No. 1. It appears that thereafter
number of petitions were filed in the years 2015, 2016, 2017 and
2018 and in all the petitions such interim relief restraining the
respondents from taking any coercive actions pursuant to the said
G.Rs in question was granted. Ofcourse, in the latest petitions being
Special Civil Application No. 4961 of 2019 and 5344 of 2019 and
others, no interim relief has been granted, as this group of petitions
was being heard finally at the admission stage.
8. During the course of arguments, Learned Advocates Mr. Amit
Panchal, Ms. Falguni D Patel, Mr. A G Joshi and Mr. Bhargav
Hasurkar appearing for the petitioners in the respective petitions have
made following submissions:
(I) The impugned G.Rs dated 28.06.2013 and 13.10.2014
are arbitrary, illegal and discriminatory as violative of Article 14,
16, 19(1) and 21 of the Constitution of India. The learned
Advocate appearing for the petitioners of Special Civil
Application No. 18840/2014 submitted that the impugned G.Rs
Page 9 of 33
were issued subsequent to their admission in the PG Course
and the respondents could not change the rules of game after
the process of admission had already started. In this regard, he
has placed reliance on the decision of the Supreme Court in
case of Hemani Malhotra versus High Court of Delhi reported
in (2008) 7 SCC 11.
(II) The condition requiring the PG Students to execute the
bond of Rs. 10,00,000/ by way of guarantee for serving in the
rural areas for a period of three years and also to extend the
bond executed as the Under Graduate students for a further
period of three years, was too harsh and without any rationale
or logic behind it. Such condition being dehors the admission
Rules and Regulations could not be incorporated by the issuing
Government Resolutions.
(III) The impugned G.Rs seek to introduce unreasonable and
discriminatory classification amongst the students who were
admitted under the same set of rules to the government
colleges, inasmuch as the respondent Government has
exempted PG students who opted for nonclinical subjects from
executing the bonds and now the PG students from All India
Quota have also been exempted from executing such bonds.
(IV) The students pursuing the Diploma PG Courses also
cannot be equated with the students pursuing PG Degree
Courses inasmuch as the period of courses, the stipend paid to
Page 10 of 33
them and the job opportunities to both the sets of students are
very much different.
(V) Since no post for the branches like IHBT (MD Pathology),
Microbiology are available in rural areas and very few courses of
clinical branches like Radiology, Ophthalmology, ENT,
Dermatology are available, the petitioners will have to work like
medical officers after completing the PG Courses.
(VI) It is highly unreasonable and unjust to compel the medical
students to execute bonds for serving in rural areas for three
years, for each of the courses i.e. under graduation and post
graduation courses. When the sufficient infrastructure facilities
like laboratory, XRay, USG Center, trained nursing staff are not
available, compelling the Post Graduate Doctors to serve in
rural areas would not serve any purpose and on the contrary it
would amount to wastage to their skill and knowledge for three
years/six years as the case may be.
(VII) There is no time line specified in the impugned G.R. as to
within what period the government would offer postings to the
students on their completion of PG Courses.
(VIII) The impugned G.R. being dehorse the admission Rules,
was not binding to the petitioners. The respondent No. 1 could
not have compelled the students to execute the bonds, the
conditions of which were ex facie arbitrary, illegal and
unreasonable.
Page 11 of 33
9. Per Contra, the learned AAG Mr. P.K. Jani appearing for the
respondents has made following submissions:
I. The execution of bond in medical courses is
prevalent since 1972 and with the passage of time only the
amount of bond and the period of service has been increased.
Such bond condition has never been challenged by the
students earlier.
II. The State Government is incurring huge
expenditure on medical education and on medical students
studying in medical colleges. As per Article 47 of the
Constitution of India, the State is duty bound to take all
measures to improve the public health.
III. The State Government charges very nominal fees
from the students studying in the government colleges and it
is profound duty of such students to render their services in
the rural areas after the completion of their studies, as there
is acute shortage of doctors in the rural areas.
IV. The condition for execution of the bond is being
made known to every student at the time of taking admission,
and the students have to give undertaking at the relevant
time. Such condition is also stipulated in the admission
order. The admission committee also specifically mentions
about the requirement of bond during the admission process.
Page 12 of 33
V. Such condition of bond is also prevalent in many
other states, and time and again various High Courts of other
States have upheld such condition justifying the act of the
State Government for the betterment of public health care.
VI. The condition of execution of bond for the students
pursuing non clinical branches was deleted as the post of
nonclinical Doctors were not available at the Primary Health
Centers and the Community Health Centers. Such
classification could not be said to be arbitrary or
discriminatory.
VII. The impugned G.R. was issued under the Executive
Fiat and had the binding force in view of Article 162 read with
Article 166 of the Constitution of India.
VIII. Mr. Jani has placed reliance on the decisions of
various High Courts in case of Dr. Adiya Shrikant Kellkar
and Ors. Versus State of Maharashtra reported in AIR 1998
Bombay 260, of Kerala High Court in the matter of Ayisha
Beegam (Dr.) versus State of Kerala reported in 2018 SCC
Online Ker 1287, of Madras High Court in the matter of
Puvanalingam Versus State of Tamil Nadu reported in
2012 SCC Online Mad 2022, of Calcutta High Court in the
case of Jamirul Islam Verus State of West Bengal reported
in 2018 SCC Online Cal 7455, and of Uttarakhand High
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Court in the case of Manisha Versus State of Uttarakhand
reported in 2017 SCC Online Utt 928 to buttress his
submissions.
10. The contentious arguments in the light of the pleadings and
accompanying documents have received in depth consideration by the
Court. To recapitulate the facts, the petitioners are the students
pursuing or have pursued their Post Graduation in the clinical
subjects and they have been called upon to execute the bond/ surety
of Rs.10,00,000/ for serving in rural areas for three years after the
completion of their Post Graduation as per the G.R. dated 28.06.2013
issued by the respondentState. The impugned G.R. dated 28.06.2013
in its Preamble has referred earlier G.R.s issued since 1972. It has
been stated therein that the G.R. dated 30.05.1972 required the
students taking admissions in the MBBS Courses in the Government
Medical Colleges to execute the bond of Rs. 5,000/ for rendering their
services in rural areas for two years after the completion of their
study. In the year 1980, the said amount of bond was increased to Rs.
10,000/ and in the year 1986, it was increased to Rs. 25,000/. It
has been further stated that vide G.R. dated 27.07.1993 the amount
of bond was increased to Rs. 75,000/ and the period of services in
rural areas was increased to three years including one year in tribal
area, and that vide the G.R. dated 18.05.2007 the amount of bond
was increased to Rs. 1,50,000/. It is also stated therein that the
Page 14 of 33
prevalent amount of bond of Rs. 1,50,000/ being very small amount,
the students pay up the said amount and start their private practice,
as a result thereof, the post of medical officers in government
hospitals remain vacant, and therefore it was decided that the
students getting admission in the first year of MBBS/BDS/BPT
Courses shall have to execute the bond of Rs. 5,00,000/ by way of
bank guarantee or solvency certificate of the property worth
Rs.7,00,000/ as a guarantee for rendering their services in rural
areas for minimum period of three years, and that the students
pursuing Post Graduation Degree /Diploma Courses shall have to
execute fresh bond of Rs.10,00,000/ by way of bank guarantee or
solvency certificate of Rs.12,00,000/ for rendering services in rural
areas after the completion of their studies. It has been further clarified
that the students getting admission in the PG courses shall have to
extend the bond given by them at the time of taking admission in
MBBS for a further period of three years, and in addition thereto shall
have to execute fresh bond on getting admission in the PG Courses. It
is pertinent to note that in the affidavitinreply filed on behalf of
respondent No. 1, the said resolutions/ circulars issued by the State
Government from time to time have been mentioned and the copies
thereof have also been produced along with the said affidavit.
11. From the bare perusal of the said G.R. dated 28.06.2013, and
the earlier G.R.s mentioned therein, it appears that all the earlier
Page 15 of 33
G.R.s/Circulars pertained to the students aspiring to take admission
in the Under Graduate Courses in Government Medical Colleges and
did not pertain to the students aspiring to take admission in PG
Courses. The last Circular/ G.R. dated 18.05.2007 referred to in the
impugned G.R. dated 28.06.2013 also was issued in connection with
the Rules for Admission to MBBS/BDS/ Physiotherapy etc, Courses
(Annexure X to the Affidavit in reply). The relevant Rule 17 of the said
Rules required every students seeking admission to first year MBBS
Course in the Government Medical Colleges to execute the bond to
serve the Government of Gujarat for a period of two years in rural
areas. None of the Circulars/G.R.s referred in the Preamble of the
impugned G.R. dated 28.06.2013 required the students aspiring
admission in Post Graduation Courses to execute such bonds. Hence,
it was for the first time, the said G.R. dated 28.06.2013 required the
students aspiring to get admission in the Post Graduate Courses to
execute the bond as mentioned therein. The said G.R. dated
28.06.2013 was further amended vide G.R. dated 13.10.2014, by
which the students pursuing Post Graduation in nonclinical subjects
like Anatomy, Physiology, Biochemistry, PSM, Forensic Medicine and
Pharmacology were exempted from executing such bond of Rs.
10,00,000/ with retrospective effect. It appears that thereafter the
respondent No. 3 had issued a circular dated 06.12.2014 to the
concerned departmental heads, directing them to inform the post
graduate students that if they did not submit their bonds before
Page 16 of 33
31.12.2014, they shall not be paid stipend. Recently, the respondent
No. 3 also issued a circular dated 28.02.2019 that if any of the
resident doctors failed to submit the bond/bank guarantee within 10
days, the resident Doctors who had got admission in the year 2016
shall not be allotted exam hall tickets, and the resident Doctors who
had got the admission in the year 201718 shall not be paid stipend
from the next month.
12. One of the contentions raised by the learned Advocate Mr. Amit
Panchal appearing for the petitioners in Special Civil Application No.
18840 of 2014 was that the petitioners and other students at the time
of taking admission in the Post Graduation Courses for the academic
year 201314 were not aware about the requirement of execution of
bond of Rs. 10,00,000/ as neither the Admission Rules nor the
Brochure mentioned about the execution of such bond, and that it
was only after the admission process had started the said impugned
G.R. dated 28.06.2013 came to be issued. Ofcourse, refuting the said
contention, the learned AAG Mr.Jani has relied upon the admission
forms filled up by the petitioners of the said petition and submitted
that in the PG Information Card filled up by the petitioners, there was
a reference of bond for Rs. 10,00,000/ and they all had assured that
they would submit the bond papers within 10 days as per the
Government Rule. In the opinion of the Court, there is substance in
the submissions made by both the learned Advocates Mr. Panchal and
Page 17 of 33
Mr. Jani. As transpiring from the affidavitinreply filed on behalf of
the respondent No. 3, during the first and second round of counseling
of the admission process for the year 201314, not only the students
but even the college was also not aware about any such G.R. issued
by the State Government. It was only during the 3rd and 4th round of
the counseling, the G.R. dated 28.06.2013 was made known to all the
concerned. Undisputedly, the admission process had already started
before the issuance of the impugned G.R. dated 28.06.2013 and
therefore obviously it could not have been made known to the
students prior to taking admission in the PG Courses, however,
during the admission process, the students were asked to undertake
to furnish such bonds. As stated earlier, such requirement of
execution of bond by the Post Graduate students was introduced for
the first time by the said GR, as till then only the students taking
admission in the Under Graduate Courses were required to furnish
the bond as per the Admission Rules contained in G.R. dated
18.05.2007. Be that as it may, now since the said G.R. dated
28.06.2013 has been challenged on the ground of being arbitrary,
discriminatory, unreasonable, unconscionable and violative of Article
14 of the Constitution of India, lets examine its legality and validity.
13. In response to the contention raised by the learned Advocates
appearing for the petitioners that the Government could not have
issued such G.R. dehorse the admission Rules, the learned AAG had
Page 18 of 33
sought to submit that the said G.R. was issued by way of Executive
instructions and had the binding effect in view of Article 162 read with
Article 166 of the Constitution of India. At this juncture, it would be
appropriate to reproduce very apt observations made by the Supreme
Court in the case of Lalaram and Others versus Jaipur
Development Authority and Another reported in (2016) 11 SCC 31.
In the said case, the Supreme Court, while dealing with the issue as to
whether the decision under challenge could be construed as an
Executive decision in accordance with the Rules of Business as
contemplated under Article 166, has considered the effect of
compliance/noncompliance of the provisions contained in Article 166
of the Constitution, and observed as under :
“103. A combined reading of these provisions of Article 166,

thus would evince that the executive power of the State is vested
in the Governor and is to be exercised by him either directly or
through the officers subordinate to him, however, in accordance
with the Constitution and except insofar as he is required to
exercise his functions or any of them in his discretion, there
would be a Council of Ministers with the Chief Minister as the
head to act and advise him in the discharge of his other
functions. The Rules of Business as contemplated in clause (3)
of Article 166 unmistakably relate to the transactions to be
undertaken by the Governor with the aid and advise of the
Council of Ministers headed by the Chief Minister, subject
however to the allocation of business in terms thereof.
104. The essentials of Article 166, as a corollary, are a valid

executive decision in terms of the Rules of Business framed
under clause (3), expressed in the name of Governor and
authentication of the resultant orders and instruments in the
manner specified in the rules to be made by the Governor. Thus,
Article 166(3) mandates the making of the Rules of Business for
more convenient transactions of the affairs of the Government.
Clause (1) stipulates the mode of expression of an executive
action taken in conformity therewith and clause (2) ordains the
Page 19 of 33
manner of authentication of the consequential orders and

instruments. Having regard to the role assigned to the Council
of Ministers with the Chief Minister at the summit, the Rules of
Business framed under Article 166(3) meant for convenient
transaction of the affairs of the Government, by allocation
thereof among the Ministers, secures their collective
participation in the administration of the governance of the
State. This scheme of executive functioning, assuredly thus, is
in assonance with the constitutional edict with regard thereto,
modelling the steel frame of the State machinery.
105. It is no longer res integra that the enjoinment of clauses (1)
and (2) of Article 166, is not mandatory so much so, that any
non compliance therewith, ipso facto would render the executive
action/decision, if otherwise validly taken in terms of the Rules
of Business framed under Article 166(3), invalid. Any decision
however, to be construed as an executive decision as
contemplated under Article 166, would essentially have to be in
accordance with the Rules of Business. The Rules depending
upon the scheme thereof, may or may not, accord an inbuilt
flexibility in its provisions in the matter of compliance. It is
possible that the provisions of the Rules en bloc may not be
relentlessly rigid, obligatory or peremptory proscribing even a
minimal departure ensuing in incurable vitiations. Contingent
on the varying imperatives, some provisions may warrant
compulsory exaction of compliance therewith e.g.
negative/prohibitive expression/clauses, matters involving
revenue or finance, prior approval/concurrence of the Finance
Department, consultation/approval/ concurrence of the Finance
and Revenue departments in connection therewith and issues
not admitting of any laxity so as to upset, dislodge or mutilate
the prescribed essentiality of collective participation,
involvement and contribution of the Council of Ministers,
headed by the Chief Minister in aid of the Governor in
transacting the affairs of the State to effectuate the imperatives
of federal democratic governance as contemplated by the
Constitution.
106. As noticed hereinabove, it is affirmatively acknowledged as
well that where provisions of a statute relate to the performance
of a public duty and where the invalidation of acts done in
neglect of these have the potential of resulting in serious general
inconvenience or injustice to persons who have no control over
those entrusted with the duty and at the same time would not
promote the main object of the legislature, such prescriptions
are generally understood as mere instructions for the guidance
of those on whom the duty is imposed and are regarded as
Page 20 of 33
directory. It has been the practice to hold such provisions to be
directory only, neglect of those, though punishable, would not
however affect the validity of the acts done. At the same time
where however, a power or authority is conferred with a
direction that certain regulation or formality shall be complied
with, it would neither be unjust nor incorrect to exact a rigorous
observance of it as essential to the acquisition of the right of
authority.
107. Obviously, thus the mandatory nature of any provision of
any Rule of Business would be conditioned by the construction
and the purpose thereof to be adjudged in the context of the
scheme as a whole. The interpretation of the Rules, necessarily,
would be guided by the framework thereof and the contents and
purport of its provisions, and the status and tenability of an
order/instrument, represented as an executive decision would
have to be judged in the conspectus of the attendant facts and
circumstances. No straight jacket formula can, thus be
ordained, divorced from the Rules applicable and the factual
setting accompanying the order/decision under scrutiny. “
14. The aforestated legal position makes it clear that any decision to
be construed as an Executive action of the Government as
contemplated under Article 162 has to be in accordance with the
Rules of Business made under Article 166 of the Constitution of India.
It may be noted that though the learned Advocates for the petitioners
had orally questioned the authority of the respondent State to issue
administrative instructions in the form of the impugned G.R. without
following the Rules of the Business, as such, no plea has been raised
by the petitioners in their pleadings emphasizing noncompliance of
the Rules of Business. In absence of such plea having been raised in
the pleadings, and in absence of the Rules of the Business on record,
the impugned G.R. could not be annulled, only on the oral allegation
of not having been issued in accordance with the Rules of Business
Page 21 of 33
framed under Article 166(3) of the Constitution.
15. Adverting to the next contention raised by the learned Advocates
for the petitioners that by issuing the said G.R. dated 28.06.2013 and
subsequent G.R. dated 13.10.2014, the State had meted out
discriminatory treatment to the petitioners who are Post Graduate
students pursuing clinical subjects, it may be noted that every action
of the State has to be reasonable, just and conscionable. The
classification when being examined on the touchstone of Article 14,
the State has to show that the classification is based on reasonable,
intelligible differentia and the differentia has a rationale nexus to the
objects sought to be achieved by the executive action under challenge.
So far as the contentions with regard to discriminatory treatment
being meted out to the petitioners is concerned, the Court finds
substance in the submissions of the learned Advocates appearing for
the petitioners that though all the students are admitted after passing
through the same process of admission, are governed by the same set
of Rules, and though all are getting the same stipend as the resident
Doctors during their post graduate studies, and though the
Government is spending same amount after every doctor pursuing the
PG Courses, only the petitioners who are pursuing the PG Courses
from the State Quota in the clinical subjects are required to execute
the bond agreement. The students pursuing nonclinical subjects and
the students who have got admission from All India Quota have
Page 22 of 33
already been exempted from executing such bond agreement. It is
difficult to accept the submissions of Mr. Jani that the Government
had issued the G.R. dated 13.10.2014 exempting the students
pursuing nonclinical subjects from executing the bond as there are
no posts in the Primary Health Centers and Community Health
Centers so far as nonclinical subjects are concerned. In the opinion
of the Court such a stand of the Government fortifies the stand taken
by the petitioners that in the rural areas though there are posts for
clinical subjects, there is lack of infrastructure facilities, like
laboratory, USG Center, trained nursing staff and other logistic
support. As a result thereof, after studying so hard for three years, the
P.G. students like the petitioners would be relegated to work as
Medical Officers in Primary Health Centers and Community Health
Centers. Without creating sufficient infrastructure befitting the
speciality branches, it seems very unreasonable to compel the doctors
to serve in the rural areas for three years. Though the imperatives of
the State Government to provide proper medical services in rural
areas could not be undermined, compelling only a class of students to
execute the bonds and exempting other class of students similarly
situated from executing such bond, could not be held to be reasonable
or rational classification.
16. That apart, it appears from the conditions mentioned in the
bond agreement to be executed by the P.G. Students pursuant to the
Page 23 of 33
G.R. dated 28.06.2013 that the said conditions mentioned therein are
too onerous, harsh and unreasonable. One of the copies of the
Agreement Bond for seeking admission to the Post Graduate Courses
has been annexed with the Special Civil Application No. 2690 of
2016, which is a prescribed form containing the conditions for
admission to Government Medical Colleges for the Post Graduate
Degree/ Diploma Courses. It has been stated therein inter alia that
every student so admitted shall complete the said course from that
college and that on such completion, he or she shall serve the
Government in any of the rural areas of the State for a minimum
period of three years including one year's service in one of the Tribal
areas of the State, on remuneration as may be prescribed thereof and
shall furnish a suitable bond for the due performance of the said
conditions. It is further stated that in the event of the student
committing a breach of any of the terms and conditions mentioned
therein, the whole amount of Rs. 10,00,000/ if it is bank guarantee
in cash, or Rs.12,00,000/ if guarantee by property shall become
payable jointly or severally by the student or the surety of the student.
It has been further provided that the decision of the Government as to
whether the said student has or has not performed and observed any
of the obligations and conditions mentioned therein shall be final and
binding on the parties thereto.
17. At this juncture, it would be relevant to mention that the
Page 24 of 33
Supreme Court time and again has struck down the clauses or the
conditions contained in the service agreement, which were found to be
unfair, unreasonable, unconscionable and opposed to the public
policy. As stated earlier, pursuant to the G.R. dated 28.06.2013, the
bonds are required to be executed by the students while taking the
admission in PG Courses. The students have no choice but to sign in
the agreement bond in the prescribed format. In the opinion of the
Court such bond agreement could not be said to be have been
executed by free will or consent of the students, in view of the
provisions contained in the Indian Contract Act. As per Section 19A of
the Indian Contract Act, when the consent to an agreement is caused
by undue influence, the agreement is a contract voidable at the option
of the party whose consent was so caused. Subsection (1) of Section
16 defines “undue influence” to the effect that a contract is said to be
induced by the “undue influence” where the relations subsisting
between the parties are such that one of the parties is in a position to
dominate the will of the other and uses that position to obtain an
unfair advantage over the other. Subsection (2) of Section 16 further
inter alia provides that a person is deemed to be in a position to
dominate the will of another, where he holds a real or apparent
authority over the other. At this juncture, it would be also relevant to
refer to Sections 23 of the Contract Act. Section 23 states that the
consideration or object of an agreement is lawful, unless inter alia the
Court regards it as opposed to public policy. It also provides that every
Page 25 of 33
agreement of which the object or consideration is unlawful, is void.
18. The Supreme Court, in the case of Central Inland Water
Transport Corporation versus Brojo Nath Ganguly reported in
(1986) 3 SCC 156 employing the provisions of the Contract Act into
the principles of reasonableness and fairness imbibed in Article 14 of
the Constitution of India, has held inter alia that when the contracts
are entered into by the weaker party under the pressure of
circumstances, which results in inequality of bargaining power, such
contracts would not fall within the four corners of the definition of
“undue influence” given in Section 16(1) of the Contract Act, even
though at times they are between the parties one of whom holds a real
or apparent authority over the other. Such contracts, which affect a
large number of persons or a group of persons, if they are
unconscionable, unfair and unreasonable, are injurious to the public
interest. Such a contract or its clause should be adjudged void under
Section 23 of the Contract Act on the ground of being opposed to the
public policy. The Supreme Court in the said case was examining the
question of validity of a service rule framed by a Government
Company, namely Central Inland Water Transport Corporation. The
rule viz. the Rule 9(i) empowered the corporation to terminate the
services of its employees at will. The Supreme Court held the said
Rule not only arbitrary, unreasonable and unconscionable infringing
Article 14 of the constitution but the term contained in the said
Page 26 of 33
contract rule as opposed to the public policy and therefore void under
Section 23 of the Contract Act. The relevant observations made by the
Supreme Court may be reproduced as under:
“91. Is a contract of the type mentioned above to be adjudged
voidable or void? If it was induced by undue influence, then
under section 19A of the Indian Contract Act, it would be
voidable. It is, however, rarely that contracts of the types to
which the principle formulated by us above applies are induced
by undue influence as defined by section 16(1) of the Indian
Contract Act, even though at times they are between parties one
of whom holds a real or apparent authority over the other. In
the vast majority of cases, however, such contracts are entered
into by the weaker party under pressure of circumstances,
generally economic, which results in inequality of bargaining
power. Such contracts will not fall within the four corners of the
definition of "undue influence" given in section 16(1). Further,
the majority of such contracts are in a standard or prescribed
form or consist of a set of rules. They are not contracts between
individuals containing terms meant for those individuals alone,
Contracts in prescribed or standard forms or which embody a
set of rules as part of the contract are entered into by the party
with superior bargaining power with a large number of persons
who have far less bargaining power or no bargaining power at
all. Such contracts which affect a large number of persons or a
group or groups of persons, if they are unconscionable, unfair
and unreasonable, are injurious to the public interest. To say
that such a contract is only voidable would be to compel each
person with whom the party with superior bargaining power
had contracted to go to court to have the contract adjudged
voidable. This would only result in multiplicity of litigation
which no court should encourage and would also not be in the
public interest. Such a contract or such a clause in a contract
ought, therefore, to be adjudged void. While the law of contracts
in England is mostly judge made, the law of contracts in India is
enacted in a statute, namely, the Indian Contract Act, 1872. In
order that such a contract should be void, it must fall under
one of the relevant sections of the Indian Contract Act. The only
relevant provision in the Indian Contract Act which can apply is
section 23 when it states that "The consideration or object of an
agreement is lawful, unless . . . the court regards it as . . .
opposed to public policy."
92. The Indian Contract Act does not define the expression
Page 27 of 33
"public policy" or "opposed to public policy". From the very

nature of things, the expressions "public policy", "opposed to
public policy" or "contrary to public policy" are incapable of
precise definition. Public policy, however, is not the policy of a
particular government. It connotes some matter which concerns
the public good and the public interest. The concept of what is
for the public good or in the public interest or what would be
injurious or harmful to the public good or the public interest
has varied from time to time. As new concepts take the place of
old, transactions which were once considered against public
policy are now being upheld by the courts and similarly where
there has been a wellrecognized head of public policy, the
courts have not shirked from extending it to new transactions
and changed circumstances and have at times not even flinched
from inventing a new head of public policy. There are two
schools of thought "the narrow view" school and "the broad
view" school. According to the former, courts can not create new
heads of public policy whereas the latter countenances judicial
lawmaking in this area. The adherents of "the narrow view"
school would not invalidate a contract on the ground of public
policy unless that particular ground had been well established
by authorities. Hardly ever has the voice of the timorous spoken
more clearly and loudly than in these words of Lord Davey in
Janson v. Uriefontein Consolidated Mines Limited "Public policy
is always an unsafe and treacherous ground for legal decision."
That was in the year 1902. Seventyeight years earlier, &
Burros, J., in Richardson v. Mellish, described public policy as
"a very unruly horse, and when once you get astride it you
never know where it will carry you." The Master of the Rolls,
Lord Denning, however, was not aman to shy away from
unmanageable horses and in words which conjure up before
our eyes the picture of the young Alexander the Great taming
Bucephalus he said in Enderyby Town Football Club Ltd. v.
Football Association Ltd.; "With a good man in the saddle, the
unruly horse can be kept in control. It can jump over obstacles."
Had the timorous always held the field, not only the doctrine of
public policy but even the Common Law or the principles of
Equity would never have evolved. Sir William Holdsworth in his
"History of English Law", Volume III, page 55, has said :
"In fact, a body of law like the common law, which has
grown up gradually with the growth of the nation,
necessarily acquires some fixed principles, and if it is to
maintain these principles it must be able, on the ground
of public policy or some other like ground, to supress
practices which, under ever new disguises, seek to weaken
or negative them.
It is thus clear that the principles governing public policy must
Page 28 of 33
be and are capable, on proper occasion, of expansion or

modification. Practices which were considered perfectly normal
at one time have today become obnoxious and oppressive to
public conscience. If there is no head of public policy which
covers a case, then the court must in consonance with public
conscience and in keeping with public good and public interest
declare such practice to be opposed to public policy. Above all,
in deciding any case which may not be covered by authority our
courts have before them the beacon light of the Preamble to the
Constitution. Lacking precedent, the court can always be guided
by that light and the principles underlying the Fundamental
Rights and the Directive Principles enshrined in our
Constitution."
93. ****
The types of contracts to which the principle formulated
by us above applies are not contracts which are tainted
with illegality but are contracts which contain terms
which are so unfair and unreasonable that they shock the
conscience of the court. They are opposed to public policy
and require to be adjudged void.”
19. The aforestated decision has been affirmed by the Constitution
Bench in case of Delhi Transport Corporation versus DTC Majdoor
Congress and Others reported in 1991 Supp (1) SCC 600. The said
decision has also been followed in the case of Indian Oil Corporation
Ltd. versus Nilofer Siddiqui & Ors reported in (2015) 16 SCC 125.
As per the legal position settled in the said decisions, even though the
rights of the citizens are in the nature of contractual rights, the
manner, the method and the motive of a decision of entering into a
contract are subject to judicial review to be examined on the
touchstone of reasonableness, fair play, equality and non
discrimination. It has been stated inter alia that the Courts will not
enforce, and will when called upon to do so, strike down an unfair
Page 29 of 33
and unreasonable agreement or a clause or condition in the
agreement entered into between the parties who are not equal in the
bargaining power. The ratio laid down in the said decisions would also
apply were the person has no choice, rather no meaningful choice but
to give his assent to a condition, howsoever unreasonable and
unconscionable it may be, and sign on a dotted line in the prescribed
or standard form of agreement.
20. If the facts of the present case are appreciated in the light of the
aforestated legal position, it clearly transpires that the petitioners who
are the meritorious students and have got their admission on their
own merits in the PG Courses in the Government Colleges as per the
admission Rules, have been called upon to give undertaking for
execution of the bond in view of the G.R. dated 28.06.2013. They have
also been called upon to sign on the dotted lines in a prescribed form
of bond agreement, the copy of which is produced on record in Special
Civil Application No. 2690 of 2016. The respondent authorities being
in dominating position, the petitioners and the students similarly
situated as the petitioners have no choice but to give assent to the
conditions mentioned in the said bond agreement, though the said
conditions are too harsh, unreasonable and onerous. The concerned
respondent authorities by issuing the circular dated 28.02.2019, have
literally tried to cause fear in the minds of the students that their
stipend will be stopped, and that they will not be allotted the exam
Page 30 of 33
hall tickets, if they did not furnish the bond agreement. Thus, the
action of the respondents in compelling the PG students to undertake
to execute fresh bond of Rs. 10,00,000/ for serving in rural areas for
three years, and to extend the bond already furnished as UG students
for a further period of three years in view of G.R. dated 28.06.2013
and further compelling them to sign on the dotted lines of the bond
agreement containing absolutely unreasonable and unconscionable
conditions, smacks of arbitrary exercise of powers at the instance of
the respondent authorities. Such bond agreement and the conditions
mentioned therein being unreasonable, unjust and unconscionable
are required to be construed as opposed to the public policy and
therefore void, as also violative of Article 14 of the Constitution, in
view of the decision of the Central Inland Water Transport
Corporation (supra).
21. The submission of learned AAG Mr. Jani for the respondent
State that the State is spending huge money after the medical
education and therefore it is the duty of the students to reciprocate
the State by serving in the rural areas, is difficult to accept. It is true
that as per the Directive Principle contained in Article 47 of the
Constitution of India, it is the primary duty of the State to improve the
public health, nonetheless the Right to Education is also a right
concomitant to the fundamental rights enshrined in the Constitution.
The expenditures incurred by the State on medical education cannot
Page 31 of 33
be permitted to be recovered from a class of students who have got
admission in the PG Courses on their own merits, on the ground that
they had not served in the rural areas. Since the Court has followed
the decisions of the Supreme Court for holding that such bond
agreement and the conditions mentioned therein are opposed to the
public policy and therefore void, the Court has not dealt with the
decisions of other High Courts relied upon by Mr. Jani.
22. The severe problem faced by the State in not getting good
Doctors to provide medical services in the rural areas, cannot be
undermined, however at the same time, the arbitrary, unreasonable
and unconscionable condition requiring the students to execute the
prescribed bond agreement, which is opposed to the public policy as
stated herein above also cannot be countenanced. Even as per their
own statistical data, the policy of execution of bond has hardly served
any purpose, inasmuch as large number of posts have remained
vacant in the Primary Health Centers and Community Health Centers
despite the fact that such practice applicable to UG students is in
vogue since last fifty years. As stated earlier, it was for the first time
that the students taking admission in the PG Degree/Diploma
Courses were called upon to execute the bond agreement while taking
admission for the academic year 20132014 pursuant to the G.R.
dated 28.06.2013. Because of the stay granted by the High Court
against the implementation of the G.R. dated 28.06.2013 in all these
Page 32 of 33
petitions filed year after year by the students taking admission in the
PG courses, the said G.R. has also not been effectively implemented.
The petitioners who are the medical students are unfortunately forced
and are compelled to knock the doors of the Courts every year at the
commencement of the Courses. The State therefore is expected to find
out enduring solution to the chronic problem by framing suitable
scheme or policy governed by the constitutional guidelines.
23. In the wake of the above, the G.R. dated 28.06.2013 qua the
PG students being unreasonable, unjust, unconscionable and
infringing Article 12 of the Constitution, deserves to be quashed and
set aside and is accordingly quashed and set aside. The Bond/ Surety
furnished by the petitioners, if any, pursuant to the said G.R. shall
not be acted upon by the respondent authorities. All the petitions
stand allowed to the aforesaid extent. Rule is made absolute
accordingly.
(BELA M. TRIVEDI, J)
SINDHU NAIR
Page 33 of 33

D 2014 GJHC240444892014-305

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C/SCA/18840/2014 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE BELA M. TRIVEDI

1 Whether Reporters of Local Papers may be allowed to see the

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the

4 Whether this case involves a substantial question of law as to

MR BHARGAV HASURKAR, ADVOCATE FOR the PETITIONER Nos. 1-12 in

MS SAMTA PATEL, ADVOCATE FOR MS VIRAJBEN A JOSHI FOR the

MR AR THACKER for the Respondent(s) No. 2 IN Special Civil Application No.

CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

behalf of respondent No. 2 in Special Civil Application No. 4961 of

the respondent­State Government, in Health and Family Welfare

fresh bond of Rs.10,00,000/­ in the form of bank guarantee or a

solvency certificate for the properties worth Rs. 12,00,000/­ as a

Medical Colleges, in addition to the Bond executed by them at the

matter is taken from Special Civil Application No. 18840 of 2014,

Gujarat University as per the Rules and Regulations. According to

them, they being meritorious students, were admitted to the

for the admission, after the counseling conducted by the admission

committee constituted by the respondent No. 1, in accordance with

the directions issued by the Supreme Court in its order dated

mention about requirement of execution of any bond, though there

bond of Rs. 10,00,000/­ in the form of Bank Guarantee or Surety

G.R. dated 28.06.2013 requiring the students pursuing the Post

post graduation, and further requiring them to extend the Bond

executed by them at the time of taking admission in the Under

petitioners, who though are highly meritorious, otherwise hail from

had also issued another circular dated 13.10.2014 introducing a

students who were pursuing post graduation in the non­clinical

According to the petitioners, there was no rationale in meting out

such discriminatory treatment at the hands of the respondent

pursuing clinical subjects and the students pursuing non­clinical

challenged the validity of the G.R.s dated 28.06.2013, and dated

13.10.2014, and the circular dated 06.12.2014 issued by the

respondent No. 3. Similar petitions have been filed by the other

India, the State is duty bound to improve the public health and to

provide better health services to the rural population of the State.

amount has been enhanced to Rs. 5,00,000/­ for Under Graduates

Forensic Medicine and Pharmacology, as the posts of non­clinical

subjects were not available in the Primary Health Centers and

Government Medical College, in view of the order passed by the

imparting medical education charging very nominal rate of fees as

education in the Government Medical Colleges. The students are

getting stipend, however they are not willing to work in rural areas

and therefore the State Government had introduced the policy

18.05.2007 lay down the condition of Bond and undertaking to be

at the time of taking admission. It is further stated that such

Government to require the students to execute such bond, more

particularly for rendering their services in the rural areas for three

6. The respondent No. 1 has also filed further affidavit to

are 4498 sanctioned post of medical officers in Class II category at

available as on 31.08.2018, there are 679 sanctioned posts of

Specialist Doctors Class­I at the Community Health Centers in the

students from whom the amount of Rs. 41,52,80,000/­ has been

officers, the State government would legitimately expect that the

students who have studied in Government Medical Colleges, render

7. The Court while issuing Notice to the respondents in Special

security documents, pursuant to the G.R. dated 28.06.2013 and

respondents from taking any coercive actions pursuant to the said

Panchal, Ms. Falguni D Patel, Mr. A G Joshi and Mr. Bhargav

(I) The impugned G.Rs dated 28.06.2013 and 13.10.2014

the respondentState Government, in Health and Family Welfare

fresh bond of Rs.10,00,000/ in the form of bank guarantee or a

solvency certificate for the properties worth Rs. 12,00,000/ as a

bond of Rs. 10,00,000/ in the form of Bank Guarantee or Surety

students who were pursuing post graduation in the nonclinical

pursuing clinical subjects and the students pursuing nonclinical

amount has been enhanced to Rs. 5,00,000/ for Under Graduates

Forensic Medicine and Pharmacology, as the posts of nonclinical

Specialist Doctors ClassI at the Community Health Centers in the

students from whom the amount of Rs. 41,52,80,000/ has been

pursuing non clinical branches was deleted as the post of

was increased to Rs. 1,50,000/. It is also stated therein that the

Rs.7,00,000/ as a guarantee for rendering their services in rural

execute fresh bond of Rs.10,00,000/ by way of bank guarantee or

is pertinent to note that in the affidavitinreply filed on behalf of

10,00,000/ with retrospective effect. It appears that thereafter the

bond of Rs. 10,00,000/ as neither the Admission Rules nor the