- (1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioners against the respondents on 30.6.2003 with the prayer that by an appropriate writ, order or direction, the condition as mentioned in the appointment orders/letters of the petitioners to the effect that "this will not incur any financial liability upon the State Government and the petitioners will have to work on honorary basis" may be declared void and be struck off and furthermore, the respondents be directed to pay amount of stipend to the petitioner as being paid to the students who are doing PG (MS/MD).
(2.) The case of the petitioners as put forward by them in this writ petition is as follows : The Government of India established an autonomous body, which is known as National Board of Examinations (for short "the NBE"), in the year 1975 with the primary objective of improving the quality of medical education by elevating the level of establishing standard of post graduate examinations in modern medicine on all India basis. It was to function as a national resource of imparting quality in evaluation of professional competence in medical sciences. There are more than 135 recognized Medical Colleges in the country and abroad, in addition to over 191 accredited institutions imparting medical education in various levels and in various broad and super specialities. There are 39 medical disciplines identified by the Board for which approved training facilities are available in the country at present. Although the Medical Council of India has laid down standard for post graduate examinations conducted by various Universities and other Institutions, it is felt that the level of proficiency and standards of evaluation still vary considerably in these institutions and universities. Hence, it was felt to set up a national body to conduct post graduate medical examination to provide a common measurement standard and mechanism of evaluation of the minimum level of attainment of the objective for which post graduate degree courses were started in medical institutions. Intercountry and international comparison will be facilitated with the availability of commonly accepted evaluation mechanism. Thereafter, the Government of India vide Notification dated 19.9.1983 in exercise of the powers conferred by sub-section (ii) of Section (2) of the Indian Medical Council Act, 1956 (102 of 1956) (hereinafter referred to as "the Act of 1956"), after consulting with the Medical Council of India, amended the first Schedule appended to the Act of 1956 and degrees relating to the NBE were incorporated in first scheduled appended to the Act of 1956. The further case of the petitioner is that they took admission in NBE in different branches in different years and they are working under the respondent No. 4 Dr. S.N. Medical College, Jodhpur and the details of their date of admission, branch, experience and name of hospital where they are working are shown in Schedule-A appended to this writ petition. According to the petitioners, they were duly selected in the course conducted by NBE and they are being given training in Diplomate of National Board (for short "DNB") course and they are working in different hospitals of Jodhpur affiliated to Dr. S.N. Medical College, Jodhpur (respondent No. 4). According to the petitioners, they were required to work practically as full time Resident doctors in hospital and according to their specialization, they will have to do all works as are being done by MD/MS and for that also, the petitioners will have to work for 12-14 hours daily in hospital, meaning thereby duties and responsibilities of the petitioners are similar and equivalent to that of MD/MS doctors in the same hospital. The further case of the petitioners is that no doubt there was condition in the appointment letter/order of the petitioners that the State Government would not bear any financial liability and furthermore, undertaking was also obtained from the petitioners on bond that they would undergo training in DNB course on honorary basis. The further case of the petitioners is that through Notification dated 3.10.1994 appended as Appendix-1 to Schedule B (Bulletin of Information and application form for Diplomate of National Board Primary Examination), it was categorically opined by the Director (ME), Government of India, Ministry of Health and Family Welfare that the medical qualification awarded by the National Board of Examinations be treated at par with MD/MS of Indian Universities for all posts including teaching posts. Thus, the medical qualification awarded by NBE is at par and equivalent to MD/MS. The further case of the petitioners is that since there was a condition in their appointment letters/orders that the State Government would not bear any financial liability, therefore, the petitioners, who are resident doctors doing PG (DNB course), are not being paid any stipend and on the contrary, the students, who are doing PG course (MS/MD) in the same hospital are being paid stipend for all the three years. The further case of the petitioner is that on 24.9.2001, the Dy. Director (Admn.) of the NBE wrote a letter to all the accredited institutions stating that payment of stipend to students undergoing training for the DNB course is now mandatory and the same be paid to them. Since on that letter no action was taken by the respondents, therefore, a reminder was further issued on 15.12.2001. The further case of the petitioners is that the condition that they would work on honorary basis was accepted by them under influence of he respondents and thus, that condition is hit by Section 16(1) of the Indian Contract Act, 1872 (for short "the Act of 1872") and for that, reliance has been placed by the petitioners on the decision of the Hon'ble Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly, 1986 3 SCC 156. The further case of the petitioners is that they made oral requests to the respondents that since they are performing the similar and identical works as are being performed by other students doing PG (MS/MD) and when the students doing PG (MS/MD) are being paid stipend, therefore, they are also entitled to stipend and the same be paid to them. However, the request of the petitioners was not accepted by the respondents. Thereafter, the petitioners served a notice for demand of justice Annexure-6 dated 8.6.2003 upon the respondents through counsel, but no action was taken by the respondents. Hence, this writ petition with the prayers as stated above. In this petition, the main case of the petitioners is that since they are discharging the same duties and responsibilities as are being done by other MD/MS students and when the students of PG (MD/MS) are being paid stipend, therefore, the petitioners are also entitled to get stipend as being paid to the students doing PG (MD/MS) on the principle "equal pay/stipend for equal work" and highly discriminatory and violative of Articles 14 and 16 of the Constitution of India. A reply to the writ petition was filed by the respondents No. 3 and 4 and it was submitted by them that since there was a condition in the appointment letters/orders of the petitioners that this will not incur any financial liability upon the State Government and apart from this, the petitioners have voluntarily executed bonds in favour of the answering respondents mentioning therein in clear terms that they would perform duties on honorary basis, therefore, in these circumstances, they are not entitled to claim stipend. Copies of some of the bonds executed by the petitioners are marked as Annex. R/1. It has been further submitted by the respondent Nos. 3 and 4 that the case of the petitioners that they should be treated at par with the students, who are doing PG Course (MD/MS) is wrong one as the class to which the petitioners belong is a distinct class and their terms and conditions are also different one and therefore, to say that they should be equated with the students doing PG (MD/MS) should not be accepted. Hence, no interference is called for and this writ petition deserves to be dismissed.
(3.) I have heard the learned counsel for the petitioners and the learned counsel for the respondents and gone through the entire materials available on record.;