Dr. Vishal Sehgal And Ors. vs Secretary (Health) And Ors.
2002 Latest Caselaw 2155 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioners are doctors having obtained an MBBS degree. They are undertaking a course for the grant of a Diplomate of National Board. Their prayer, in a writ petition filed under Article 226 of the Constitution, is essentially for payment of a salary/honorarium for the practical work that they are doing while undertaking the course.

2. The National Board of Examinations (for short the NBE) was established by the Government of India, Ministry of Health & Family Welfare as an examining body to evolve a pattern for the conduct of a high and uniform standard of post-graduate and post-doctoral examinations in medical sciences. The NBE confers a Diplomate of National Board (for short DNB) qualification, which is said to be equivalent to an MD/MS/DM/M.Ch. of other Indian universities recognized by the Government of India and the Medical Council of India.

3. The NBE has set up a mechanism for imparting a non-formal mode of teaching in the sphere of higher medical education. The idea is to tap the resources in terms of equipments and trained manpower available in the private and public sector for training and teaching in higher medical education. The NBE has recognized 156 institutions for the intake of 570 candidates in various post-graduate and post-doctoral courses in private and public sector hospitals/institutions. One such hospital is the Deen Day l Upadhyay Hospital, which is Respondent No.3 in the present writ petition.

4. The NBE conducts a primary examination twice a year and it appears that pursuant to an advertisement that appeared in the newspapers sometime in 1999, the Petitioners took this primary examination and qualified in it.

5. Respondent No.3 (which is one of the accredited institutions for the award of a DNB qualification) issued an advertisement in the newspapers in December, 1999 inviting applications from medical graduates for admission to the DNB course for the session commencing from January/July, 2000. In the advertisement, a copy of which was handed over in Court, it was stated that the terms and conditions for admission to the DNB course are as under: -

(1) Applicant should have passed the D.N.B. Primary Examination.

(2) In case of selection to the said course, medical graduates are required to submit an undertaking/bond in the prescribed perform to the effect that he/she will work on honorary basis/complete the course.

(3) The selection will be made by the Academic Cell of DDU Hospital strictly on merit basis.

(4) Hostel facility will be provided to the selected candidates if available as per prescribed rules.

(5) Application of the candidates having P.G. Diploma will only be considered if primary pass candidate is selected (one Diploma against one primary).

(6) D.N.B. in this hospital is an UNPAID COURSE.

(7) The last date of receipt of application will be 24.12.1999.

6. For the sake of convenience, the facts pertaining to Petitioner No.1 are stated. The facts pertaining to the other Petitioners (and the intervenors) are either substantially the same or not materially different.

7. Petitioner No.1 was selected for admission to the DNB course with Respondent No.3. He was given a Memorandum dated 19th February, 2000 indicating the terms and conditions of the admission. Three of the conditions, which are important, are as follows:

-

(1) DNB course will be unpaid. The selected candidate will submit an affidavit to the effect that he/she will complete the course on an honorary basis.

(2) Free hostel accommodation will be provided to the DNB student.

(3) The selected student will have to abide by the rules and regulations of Respondent No.3 and also perform the duties of a resident doctor in addition to academic activities.

8. Although no formal affidavit was taken from him, it is common ground that Petitioner No.1 accepted the terms and conditions offered by giving an acceptance letter to Respondent No.3. Petitioner No.1 joined the DNB course in the Department of Orthopedics with Respondent No.3 on 15th April, 2000 in terms of the Office Order No.152 dated 19th May, 2000. The duration of his training is two and a half years.

9. As a part of his course, the Petitioner No.1 is required to work as a junior resident doctor with Respondent No.3. In fact, Petitioner No.1 has filed Along with the writ petition, his duty rosters prepared over a period of time.

10. Even though in terms of the advertisement and the Memorandum of admission both of which stipulated that the DNB course would be unpaid, Petitioner No.1 was in fact paid a stipend. The payment made to him was about Rs.17,000/- per month when he was not availing the hostel facilities but this was reduced to about Rs.13,000/- per month when he availed the hostel facilities. The payments made to Petitioner No.1 were with effect from 1st July, 2000. These payments continued till 30th June, 2001 and thereafter they were stopped.

11. Sometime in February, 2000, that is, before Petitioner No.1 joined the DNB course with Respondent No.3, the Medical Superintendent of Respondent No.3 sent a proposal to the Government of NCT of Delhi (Respondent No.1) seeking sanction for payment of a stipend of Rs.10,000/- per month to DNB students. In response, Respondent No.1 wrote a letter dated 6th April, 2000 to Respondent No.3 and some other accredited hospitals including LNJP Hospital and GTB Hospital seeking certain information with a view o consider whether the additional financial implications projected by Respondent No.3 could be offset by proportionate savings.

12. During the hearing of the writ petition, learned counsel for the Respondents very fairly handed over a letter dated 4th May, 2000 sent by Respondent No.3 to Respondents No.1 and 2 urging the necessity of paying a stipend to DNB students and suggesting that the expenditure incurred could be met out of the sanctioned budget. The relevant portion of this letter reads as follows: -

"......It is further submitted that these DNB Students are working like other Jr. Residents in providing routine as well as Emergency Patient Care and are being posted even for night duties. Where as Jr. Residents getting salaries, these people are not being paid anything. Like other Post Graduate of teaching hospital where there are being paid in lieu of Services being provided by them, DNB is still unpaid in Delhi. It is further submitted that DNB is being equated equally with MD or MS by Govt. of India, as far as Post Graduate allowances concerned. Moreover DNB passed students are considered equivalent to other Post Graduates in their selection for UPSC Advertised posts. Even the private Hospitals where DNB students are enrolled, DNB candidates are getting salary almost equivalent to other Jr. Residents. With the results the better candidates prefer to pursue their DNB studies in these semi-govt. institutions than in Govt. institutions of Delhi. This Hospital has an urgent need of paid DNB for providing quality medical care. This can only be possible if equal no. of PG (JR) posts are sanctioned to this hospital as is being done for PG Students in other hospitals. A comparison with one of the leading hospital of Delhi like LokNayak is given below for ready reference.

              LNJP Hospital    DDU Hospital     Junior Residents
             161              144              Post Graduates Students 


 

In view of above it is strongly recommended that sympathetic consideration is given and additional 52 posts of PG (SR) may be sanctioned to this hospital at the earliest. The expenditure can be made from within the budget sanctioned for the 1 year 2000-
001."
 

13. It seems that nothing much came out of the proposal made by the Medical Superintendent of Respondent No.3 and the Respondents have stated in their additional affidavit that the proposal to grant a stipend to DNB students was turned down. It has not been stated when or why the proposal was turned down.
 

14. On 24th September, 2001, the Deputy Director (Admn.) of the NBE wrote a letter to all the accredited institutions stating that payment of a stipend to students undergoing training for the DNB course is now mandatory. The letter dated 24th September, 2001 reads as follows:-
  

"To
 

All the Accredited Institutions
 

Subject: Payment of Stipend to the candidates undergoing training in various specialties in your institutions.
 

As you are aware, the National Board has accredited a number of departments in your institutions for training of candidates for the Board's examination. It has been brought to our notice that some of the Institutions are paying stipend to the candidates while others are not paying the same. With the result that there is no uniformity in the system and the candidates have represented to this Board.

The matter was discussed in the last meeting of the Board and it was decided that all the accredited institutions may be requested to pay stipend to the candidates undergoing training in various departments at the rates prevailing in the respective state/institutions. It is now mandatory for all the institutions to pay the stipend.

In the light of the above it is requested that the students may be paid stipend with immediate effect and the compliance report be sent to this Board at your earliest convenience.

Receipt of this letter may please be acknowledged."

15. It appears that no response was received to the aforesaid letter dated 24th September, 2001 from several accredited institutions with the result that a reminder dated 15th December, 2001 was sent to them. The accredited institutions were required to decide the amount of stipend to be paid by them and it was stated that in case no reply is received, it would be presumed that no stipend is being paid and action will be taken accordingly. It is not known what reply was received to this communication dated 15th December, 2001 or what action was intended to be taken or actually taken against the accredited institutions. The letter dated 15th December, 2001 reads as follows:-

"Subject: Payment of Stipend to the DNB trainees.

Sir,

Please refer to our earlier communication dated 24th September 2001 on the subject cited above.

We have so far not received any response from your end. You are requested to send your reply about the quantum of stipend being paid by your institution to the DNB trainees by return of post. The amount of stipend to be paid is to be decided by the hospital taking into account the rate of stipend for PG students prevailing in the respective states.

In case no reply is received from your side it will be presumed that your institution is not paying any stipend to the DNB trainees and action will be taken accordingly."

16. On these basic facts, the grievance of the Petitioners is simply this that they are being asked to work as junior resident doctors but are not getting any emoluments for the duties performed by them despite the aforesaid letters. Even though the course is supposed to be an unpaid course, they were nevertheless made payments for one year but the same were stopped with effect from 1st July, 2001. The Petitioners say that they cannot be asked to work for free and without any remuneration or stipend whatsoever.

17. In the counter affidavit filed by Respondent No.3, it is stated that the Petitioners are required to undergo and are in fact undergoing practical training under the supervision of senior doctors which is an essential part of their training programme besides academic activities. During their practical training, the Petitioners are not assigned any responsibility such as handling medico-legal cases, responsibility for admitting patients, operating upon and treating patients independently. It is said that DNB students are primarily participating in academic activities. Performance of duties provides them with clinical experience, which is an essential pre-requisite for learning and also for appearing in the DNB final examination.

18. Respondent No.3 has stated in its counter affidavit that it has posts for Junior Residents (one year) and Senior Residents (three years) and that the Petitioners are not working on any of these posts. Attention has been drawn to the revised instructions regarding a Review of the Residency Scheme as contained in a letter dated 5th June, 1992 issued by the Government of India. It is mentioned in this document that "The strength of resident doctors - junior and senior in a unit in each clinical and Para-clinical department (?) with the need of each teaching hospital depending upon the bed strength, patient care and work load and facilities available and after taking into consideration the norms laid down by the Medical Council of India."

19. In regard to payment of a stipend or honorarium to the Petitioners, it is stated in the counter affidavit that they "......... are well aware of the fact that these DNB courses in DDU Hospital are unpaid as advertised in the Newspapers and they have submitted their acceptance for the same Along with an affidavit. The said course is not forced on them but it must be their well thought decision after being unsuccessful in the entrance examination for MD/MS degree courses. Hence, it is stated that by undergoing these DNB courses at DDU Hospital which they have opted, they are not being forced by the hospital to pursue the course."

Later on, it is reiterated that:

"The individual always had the option for appearing in competitive entrance examination for MD/MS courses. Finding themselves unsuccessful in clearing the entrance examination for MD/MS, these candidates have entered into DNB course which is comparatively much easier to get in and it was obvious in the advertisement in newspapers that the DNB course at DDUH is honorary. Hence it is stated that execution of bond/contract was their well thought decision and it is not injustice to them rather it was of great help to them by providing them clinical experience which was necessary for appearing in DNB exams."

20. The Petitioners have denied that they do not perform the same duties as resident doctors. It is said in rejoinder that:

"The job performed by the petitioners are equivalent to Junior Residents. The petitioners are performing all the jobs like attending to OPD admitting patients, performing independent surgery etc. as has been detailed out from the roster of various DNB residents which has been filed on record. The work done by the DNB residents i.e. the petitioners is equivalent to that of Junior Residents. Hence non-payment of stipend or salary by the respondents amounts to the violation of well settled service jurisprudence "Equal Pay for Equal Work."

21. The Petitioners have drawn attention to two instances where DNB students are being paid emoluments or a stipend while undergoing their DNB course. It is stated that in the Institute of Human behavior and Allied Sciences (which is under the administrative control of Respondents No.1 and 2) three DNB students, namely, Dr. Raj Kumar Srivastava, Dr. Anju Gupta and Dr. Shruti Shrivastava were paid a stipend and that Dr. Shruti Shrivastava is still receiving a salary as a Junior Resident. Reliance in this regard is placed on an order dated 19th October, 2001 which reads as follows:-

"Consequent upon the decision taken by the Standing Finance and Budget Committee in the meeting held on 20.8.2001 and subsequent decision taken by the Executive Council of IHBAS in its meeting held on 25.9.2001, Director is pleased to regularise their previous period as Junior Resident and order to release the salary of the following DNB Students with effect from 23.12.2000, in partial modification of Office Order of even number 14331-36 dated 23.12.2000.

 S.No.    Name
 1.       Dr. Raj Kumar Srivastava
 2.       Dr. Anju Gupta
 3.       Dr. Shruti Shrivastava"

 

22. The second example relied on by the Petitioners is with regard to DNB students of the LRS Institute of Tuberculosis and Allied Diseases. As per the Bulletin of Information brought out by this institute, the emoluments, duties, responsibilities and attendance (among other things) are dealt with as under:
  

"EMOLUMENTS
 

The candidates enrolled for training for DNB courses will be designated as Junior Resident (DNB). They will be given salary equivalent to that of Junior Resident 1st year as per the rules of the Institute for all the three years of training. Reservation of seats for SC/ST/OBC will be as per the rules and the roster maintained by the institute for Junior Resident posts.

DUTIES AND RESPONSIBILITIES

Duties and responsibilities of the candidates enrolled shall be fixed by the Institute from time to time. They will be required to perform such work as may be needed in the legitimate interest of the patient care in the hospital. All rules framed in this regard by the Institute will be final. They will have to carry out thesis/dissertation as per DNB rules. At the end of every six months each Junior Resident will be assessed and in case his/her performance is not satisfactory, his/her registration made be cancelled and no extension for Junior Residency will be given.

ATTENDANCE

The candidate should attend minimum of 80 percent of lectures, lecture demonstrations, bed side clinics, case presentations, faculty lecture, symposiums, seminars and journal clubs. Each candidate will maintain a performance record book. During the term of employment the Junior Residents will be entitled to 30 days leaves in a year. These leaves will not be carried forward. The Junior Residents are not entitled to any other leave other than mentioned above."

23. Since the allegation about payments being made to DNB students of the Institute of Human behavior and Allied Sciences was made in the rejoinder, learned counsel for the Respondents handed over some information received by him in this regard to the following effect:

"Emoluments/stipend has been stopped w.e.f. 23.12.2000, with the approval of the Executive Committee of this Institute of which Chief Secretary, Delhi is the Chairman, taking into consideration that DNB course in all Govt. Hospital under GNCT of Delhi is an unpaid course. Admissions to this course from the year 2001 batch onwards were made accordingly.

Only one student i.e. Dr. Shruti Srivastava, who belongs to the batch of 2000 is being paid emoluments as her appointment was made against the sanctioned strength of Junior Resident and the course commenced well before the announcement of the stoppage of stipend. Advertisement for DNB Course for the year 2001 onwards clearly indicates that this course is an unpaid one."

24. Learned counsel for the parties were heard on 14th, 20th and 22nd November, 2002 when judgment was reserved.

25. It was submitted that Petitioner No.1 was working as a Junior Resident doctor with Respondent No.3. Earlier, he was paid for the work done by him but this was suddenly stopped with effect from 1st July, 2001. Now, he is not being paid for his services unlike those who are undergoing an MD/MS course or even his counterparts in the Institute of Human behavior and Allied Sciences and the LRS Institute of Tuberculosis and Allied Diseases. It is said that Petitioner No.1 should be paid the same amount as he was being paid earlier or the same amount as being paid to MD/MS students, or in any case, the same amount as the DNB students in the two Institutes mentioned earlier. It is also contended that the term contained in the Memorandum dated 19th February, 2000 that the course will be an unpaid course is unconscionable and deserves to be struck down on that score. Petitioner No.1 places reliance on the proposal sent by the Medical Superintendent of Respondent No.3 and the letters issued by the NBE making it mandatory to pay a stipend to DNB students.

26. The DNB course consists of a pursuit of academic activities in a non-formal manner and practical training or clinical experience obtained by performing the duties of a resident doctor. The course is not complete if the academic studies are not undertaken or if the practical training is missing. Both have to be completed successfully.

27. Before taking admission to a DNB course, Petitioner No.1 (for example) had two choices to make: the discipline for specialization and the accredited institution. For whatever reason, either because of his personal preference or because of the marks obtained by him, he opted for a particular discipline, that is, orthopedics in a particular accredited institution, that is, Respondent No.3. It is not his case that he was compelled to choose that particular discipline or that he was compelled to seek admission with Respondent No.3. He made both these choices quite freely.

28. By an advertisement published in the newspapers, Petitioner No.1 was clearly informed that the DNB course with Respondent No.3 is unpaid. He was under no obligation to opt for this course with Respondent No.3 since he had a choice of applying to other accredited institutions. Yet, he knowingly applied for an unpaid course with Respondent No.3.

29. After having secured admission to the DNB course with Respondent No.3, but before accepting it, Petitioner No.1 was given a Memorandum dated 19th February, 2000 which explicitly stated that in addition to academic activities, he will have to perform the duties of a resident doctor and that the course will be unpaid. Petitioner No.1 was also asked to give an affidavit that he was prepared to complete the course on an honorary basis. Petitioner No.1 accepted the offer made by Respondent No.3. The acceptance was a free and informed acceptance.

30. On this basis, Petitioner No.1 began a DNB course in orthopedics with Respondent No.3 in an unpaid course. He has not pleaded or alleged any compulsion of any sort.

31. A representation was made to Petitioner No.1, not once but twice - firstly, through a newspaper advertisement and then through the Memorandum dated 19th February, 2000 that the DNB course in orthopedics with Respondent No.3 is an unpaid course. In spite of this, Petitioner No.1 knowingly, and without any compulsion, accepted admission to the course. Under these circumstances, purely on the basis of the agreement between the parties, Petitioner No.1 has not been able to establish any contractual right that he may have for the payment of a stipend.

32. I am, therefore, of the view that Petitioner No.1, cannot legitimately contend that notwithstanding anything that he was aware of, or despite anything stated by Respondent No.3, he is contractually entitled to get a stipend and Respondent No.3 is obliged to disregard the representations made by it. Correspondingly, Respondent No.3 cannot be placed under a contractual obligation to pay any stipend to Petitioner No.1 disregarding the representations made by it to all and sundry.

33. It is pointed out that Petitioner No.1 was paid a stipend by Respondent No.3 from 1st July, 2000 till 30th June, 2001. He was paid an amount of about Rs.17,000/- per month when he did not avail of the hostel facilities and an amount of about Rs.13,000 /- per month when he did. However, it is necessary to appreciate that Petitioner No.1 had no contractual right to receive any stipend from Respondent No.3. If, in spite of this, Respondent No.3 paid some amounts to him, that does not create a right which inures to him nor does it create a contractual liability against Respondent No.3. The basic agreement between the parties that the DNB course was an unpaid one remains unchanged.

34. What are the attendant circumstances in so far as other DNB students in other accredited institutions are concerned? In this regard, the example of the LRS Institute of Tuberculosis and Allied Diseases has been cited. This is not an institution run or managed by the Delhi Government. Moreover, the bulletin of information of this institute specifically states that DNB students will be given a salary equivalent to that of a first year Junior Resident. The representation made by Respondent No.3 to Petitioner No.1 stated that its DNB course would be unpaid. The representation made by the LRS Institute of Tuberculosis and Allied Diseases cannot bind Respondent No.3. The comparison drawn by Petitioner No.1 in this respect is inappropriate.

35. In so far as the payment of a stipend to Dr. Shruti Shrivastava and others in the Institute of Human behavior and Allied Sciences is concerned, it is not at all clear what her terms and conditions of admission were. However, the Institute of Human behavior and Allied Sciences is an institute under the administrative control of Respondents No.1 and 2. It would, therefore, be reasonable to assume that the terms and conditions offered to Dr. Shruti Shrivastava were similar to those offered to Petitioner No.1. The order dated 19th October, 2001 makes it clear that these terms and conditions were varied to the advantage of Dr. Shruti Shrivastava and others and their period of practical training was adjusted against the post of a Junior Resident. Its against such a post that they were paid a salary. Could Respondent No.3 have taken a similar step in respect of Petitioner No.1?

36. Respondent No.3 has stated in its counter affidavit that it has posts of Junior Residents for one year. It appears that Petitioner No.1 was adjusted against such a post and that is why he was paid a stipend for one year from 1st July, 2000 to 30th June, 2001. Respondent No.3 has not brought out any other budgetary provision for paying a stipend to Petitioner No.1 in respect of a course that is advertised as being unpaid. In the light of this, it seems clear that Petitioner No.1 filled up one post of a Junior Resident for one year instead of a student studying for his MD/MS. None of the Respondents objected to this. Nevertheless, Respondent No.3 cannot be compelled to make such an arrangement on a long-term basis and decrease the intake of MD/MS students to accommodate DNB students. This is a matter entirely within the jurisdiction of Respondent No.3 how to handle its internal affairs relating to patient care in a manner best suited to its needs. Under the circumstances, all that Petitioner No. 1 can claim is that the stipend given to Dr. Shruti Shrivastava should not be continued indefinitely. However, she has not been made a party to these proceedings so no adverse order can be passed against her. But is this the only possible relief that Petitioner No.1 can pray for? This is an aspect which now needs to be focused on.

37. The facts as they appear suggest that:

(a) Petitioner No1 has no contractual right to demand any stipend for the work done by him while pursuing the DNB course with Respondent No.3.

(b) Similarly, Respondent No.3 is under no obligation to pay a stipend to Petitioner No.1 while he is undertaking a DNB course with it.

(c) Notwithstanding this, Respondent No.3 paid a stipend to Petitioner No.1 for a period of one year from 1st July, 2000 to 30th June, 2001.

(d) An institute such as the LRS Institute of Tuberculosis and Allied Diseases pays a stipend to DNB students working with it as Junior Residents. It is true that this institute is neither run nor managed by the Delhi Government.

(e)However, even an institute run and managed by the Delhi Government, such as the Institute of Human behavior and Allied Sciences pays a stipend to DNB students working with it as Junior Residents. This payment is made by adjusting the period of practical training against the post of a Junior Resident. In fact, Respondent No.3 employed the same method for paying a stipend to Petitioner No.1 and there does not seem to be anything objectionable about this.

(f) It appears, therefore, that the nature of work done by a Junior Resident who is a DNB student or an MD/MS student is more or less the same, though there are some important differences which will be alluded to later on.

(g)Most importantly, a DNB student is required to undergo practical training or get clinical experience. Apparently, he can get this training or experience only if he works for some time as a Junior Resident doctor. If a DNB student does not undergo training as a Junior Resident, he cannot successfully complete his course merely on the basis of academic activities. In so far as this is concerned, a DNB student has no choice and cannot decline to undergo practical training.

38. As regards the view of the governmental authorities, it is quite clear from the initiative taken by the Medical Superintendent of Respondent No.3 in early 2000 that there is something to be said in favor of granting a stipend to DNB students. Respondents No.1 and 2 did not seem averse to the proposal and sought to carry it a little further after gathering relevant information as is evident from the letter dated 6th April, 2000. Why the proposal was eventually rejected is a mystery because the Respondents have given no explanation in the additional affidavit filed, except to say that the proposal was rejected.

39. During the course of hearing of the case, it was submitted by learned counsel for the Respondents that the proposal was rejected because of a lack of finances. Assuming this to be so, I find this justification unacceptable. For one, the letter dated 4th May, 2000 sent by the Medical Superintendent of Respondent No.3 to Respondents No.1 and 2 suggests that the extra expenditure that may be incurred in paying a stipend to DNB students can be met out of the sanctioned budget. If this is so, and there is nothing on record to suggest to the contrary, then a lack of finances is certainly not the reason for turning down the proposal. Moreover, the Respondents have stated nothing on affidavit to warrant the acceptance of this oral justification. Even otherwise, in principle, it hardly behaves the State to take work from somebody and not remunerate that person on the ground of a lack of resources. Later on I shall, of course, be dealing with the question whether Petitioner No.1 is at all entitled to any stipend or not, but for the present it seems to me that a lack of finances cannot be made a basis for denying any payment to Petitioner No.1.

40. It may added that in the letter dated 4th May, 2000 the Medical Superintendent of Respondent No.3 has categorically expressed the urgent need of the hospital of having paid DNB students for providing quality medical care. As already been mentioned, Respondent No.3 is the best judge of its requirements in matters relating to patient care. Respondents No.1 and 2 should have, therefore, taken the special and peculiar needs of Respondent No.3 while considering the proposal put forward, rather than taking a decision of blanket applicability.

41. The view of the NBE in this regard seems to be clear-cut and similar to the views of the Medical Superintendent of Respondent No.3. The NBE requires all its accredited institutions to pay a stipend to the DNB students for the period that they work as Junior Residents. Indeed, as mentioned in its letter of 24th September, 2001, the payment of a stipend is mandatory. However, in spite of this, the NBE has not enforced its will as is evident from its letter dated 15th December, 2001. It is not for anyone to say what steps the NBE can or should take to enforce its decision, but it does appear from the letter dated 15th December, 2001 that the NBE is quite powerless in the matter of enforcing its edict. Why this is so is anybody's guess. The Petitioner have not imp leaded the NBE as a respondent in the case so it is not possible to comment on its conduct. But there is no doubt about the fact that the NBE is definitely in support of paying a stipend to DNB students.

42. A rather piquant situation has arisen in this regard - one that will have to be sorted out by the Respondents and the NBE. On the one hand, the NBE is insisting that a stipend should be paid to DNB students. On the other, Respondent No.3 has stated in the additional affidavit that the proposal to pay a stipend to DNB students has been turned down by the Government of NCT of Delhi. How is the deadlock between the NBE and the Government to be broken? Does the NBE propose to withdraw accreditation to institutions run by the Government of NCT of Delhi or does the Government propose to fall in line with the mandate of the NBE? No answer was suggested or indeed even sought for - although it appears to be a problem that will require resolution when it codes to a head.

43. Learned counsel for the Petitioners placed great reliance upon Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr., to contend that the term that the course is unpaid, is an unconscionable term. I think this is really the meat of the matter. The question is this: despite outward appearances, did Petitioner No.1 freely entered into the agreement?

44. At the outset, it is necessary to first appreciate the impact of the course being unpaid and what it entails. A DNB student joins a course of studies like any MD/MS student. The main difference between these two courses is that one lead to a post-graduate diplomate, while the other leads to a post-graduate degree. In most other respects, a DNB course is intended to be equivalent to an MD/MS course and is recognized as such by the Medical Council of India. There is, however, no doubt that a student undergoing an MD/MS course is academically better equipped than a student undergoing a DNB course. For this reason, an MD/MS student working as a Junior Resident perhaps has greater responsibilities and more onerous duties to perform than a Junior Resident of a DNB course. Apart from these broad qualitative differences, both categories of students perform by and large the same duties while working as a Junior Resident. Why is it then that an MD/MS student gets paid while working as a Junior Resident while a DNB student does not? Is the qualitative difference so great that a DNB student is entitled to nothing at all? The answer to this has to be in the negative. The thrust of the argument of the Respondents was that Petitioner No.1 is not entitled to any stipend because he joined a course knowing fully well that it is unpaid and so he cannot legitimately make a grievance of it.

45. No doubt, it was stated by the Respondents that DNB students working as Junior Residents do not perform the same duties as MD/MS students working as Junior Residents. This may be so, but there does not appear to be any substantial difference in the nature of duties of a Junior Resident, whether he is doing an MD/MS course or a DNB course. The difference lies in the degree of responsibility, the level of skill and expertise employed rather than in the nature of the work. Therefore, is the mandate that a DNB student will not get paid any stipend for the period of his junior residency unconscionable, as compared to payment being granted to an MD/MS student doing his junior residency? In Brojo Nath Ganguly, the Supreme Court viewed an unconscionable bargain, as "one which is irreconcilable with what is right or reasonable". Thereafter, the Supreme Court considered various decisions of the courts in the United States and in the United Kingdom and concluded (in paragraph 88 of the Report) :-

"? there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control of as a result of situations not of their creation."

46. On the question whether such a contractual transaction can be judicially reviewed, the Supreme Court answered in the affirmative. Expounding on the applicable principle it was held in paragraph 89 of the Report as follows :-

"......the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaning ul choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case o its own facts and circumstances."

47. The next question that the Supreme Court considered was whether, in the light of the principle laid down, such a contract would be avoidable having been induced by undue influence as defined in Section 16(1) of the Contract Act, 1872 or whether it is a void contract. The Supreme Court concluded that such a contract would be void as being opposed to "public policy" in view of Section 23 of the Contract Act. It was held in paragraph 91 of the Report as follows:-

"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 avoidable 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 avoidable. 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."

48. The Supreme Court noticed that "public policy" is not capable of a precise definition. It was then said in paragraph 92 of the Report that:-

"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."

Continuing in this vein, the Supreme Court then said as under:-

"It is thus clear that the principles governing public policy must 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."

49. Summing up the legal position, the Supreme Court said in paragraph 93 of the Report that:-

"The types of contract 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."

50. It hardly needs to be mentioned that Brojo Nath Ganguly has been followed and applied by the Supreme Court in a large number of decisions. Applying the law laid down to the facts of this case, it seems unreasonable that two categories of more or less equally qualified doctors do more or less the same type of work, though with differing skills and expertise, yet one category gets a monthly stipend while the other gets nothing at all. It is possible to appreciate a situation where the DNB students get lesser stipend, but to deny them any stipend at all is unfair and unreasonable. If one looks at the available options from the point of view of Petitioner No.1, the obvious question that arises is whether he really had a meaningful choice while accepting the terms offered by Respondent No.3. The only real choice he had was Hobson's choice, namely, to complete the course without payment or not do the course at all. This is so because without undertaking any practical training or acquiring clinical knowledge, Petitioner No.1 cannot successfully complete the DNB course. He has necessarily, therefore, to go through a course of practical training and acquire clinical knowledge and on terms laid down by Respondent No.3, one of the terms being to complete the course without any payment at all. In the absence of any real freedom of choice and a complete lack of bargaining power, Petitioner No.1 had to accept the offer of Respondent No.3 of completing the DNB course without any payment.

51. It is true that Petitioner No.1 had a choice of 156 accredited institutions from which to take admission. He also had a choice of disciplines to take. Notwithstanding this, admission to an institution or a discipline of ones choice is not guaranteed to every student who passes the primary examination of the NBE. The number of seats is limited to 570 and it was mentioned during the course of oral submissions that only about 30% of the candidates are able to get admission to the DNB course. It is not therefore, a free market situation where each candidate has a large number of meaningful choices available. He has to take what he gets and to this extent there can be no complaint. But, if he has to take what he gets on terms which are unfair, unreasonable and exploitative, the Court is under a duty to step in and set the balance right. Given the facts of this case, I am clearly of the view that the principle laid down in Brojo Nath Ganguly is applicable and the term imposed on Petitioner No.1 to the effect that he has to complete the course without payment must be held unconscionable and void.

52. The Respondents must appreciate that good patient care is essential. The apprehension expressed by the Medical Superintendent of Respondent No.3 in his letter dated 4th May, 2000 is that because DNB students are not getting any stipend, the better ones among them are joining private hospitals or semi-government institutions. This is hardly conducive to good patient care. A welfare State like ours cannot afford the adverse impact that this may have particularly when it is well known that a vast majority of our people cannot afford medical care in private hospitals. The effect of what the Respondents are canvassing is that patients coming to government hospitals should not expect the best available medical help. This is not only unfortunate but also contrary to the requirements of a welfare State to secure and promote the health of its citizens.

53. In respect of the relief to be given to the Petitioners, their learned counsel canvassed the principle of equal pay for equal work. Learned counsel placed reliance on Randhir Singh v. Union of India & Ors., . That was a case of Driver Constables in the Delhi Police Force under the Delhi Administration demanding parity of pay with drivers in the service of the Delhi Administration. I find hardly any similarity between the facts of Randhir Singh and the facts of the present case. Admission to an academic course that involves practical training stands on a completely different footing. Moreover, as already discussed above, students undertaking a post-graduate degree course such as an MS/MD course fall in a different class from students undertaking a post-graduate diploma course such as a DNB course by virtue of their being academically better equipped. Even Randhir Singh recognizes such a differentiation as is evident from the following passage in paragraph 7 of the Report:-

"It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications or the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them."

54. Reliance placed by learned counsel for the Petitioners on State of Haryana & Anr. v. Ram Chander & Anr., is also misplaced for the same reason. In paragraph 13 of the Report, the Supreme Court held as follows:-

"In the light of these salient features which are well established on record there would be no escape from the conclusion that but for the difference in educational qualifications both these sets of employees are similarly circumscribed. So far as the educational qualifications' difference is concerned that would have, as noted above, made some vital difference but for the fact that the appellants themselves in their own wisdom thought it fit to ignore this difference in the educational qualifications by offering a uniform time scale of Rs. 1640-2900 to all postgraduate lecturers in higher secondary schools. For all these reasons no fault can be found with the decision rendered by the High Court especially in the light of latter developments at the end of the appellants themselves who treated all these teachers at par by promulgating the Revised Pay Rules in the light of the recommendations of the Pay Revision Committee as well as Pay Anomalies Commission as noted in detail by us earlier."

55. From the above passage, it appears that differences such as educational qualifications may have some bearing while applying the principle of equal pay for equal work. The fact that Petitioner No.1 was unsuccessful in obtaining admission to a post-graduate degree course for MD/MS shows that he was academically not as well equipped as the successful candidates. For this reason, he cannot claim equality of emoluments being paid to students who are working as Junior Residents while undertaking an MD/MS course for obtaining a post-graduate degree. This is quite apart from the fact that according to Respondent No.3 in its affidavit, Petitioner No.1 is not performing the same duties as a resident doctor selected for the MD/MS course. Of course, this is denied in the rejoinder affidavit but on the face of it, the denial cannot be fully accepted since quite clearly Petitioner No.1 is not in the same league as students who are undertaking a post-graduate degree course for an MD/MS degree.

56. Under the circumstances, I am of the view that even though Petitioner No.1 is entitled to receive a stipend from Respondent No.3 yet the amount cannot be the same as is being paid to MD/MS students who are working as Junior Residents. What the amount should be is not within the domain of this Court, and learned counsel rightly did not address any submissions in this regard. The quantum (as also the period for which it has to be paid) has to be worked out by Respondent No.3 in consultation with the NBE. All that can be said is that the amount ought not to be less than Rs.10,000/- per month which is the figure suggested in the initial proposal given by the Medical Superintendent of Respondent No.3 in early 2000 and reiterated in the letter of 4th May, 2000.

57. To avoid any doubt that may arise, it is made clear that this decision will be applicable to all DNB students who joined the course contemporaneously with Petitioner No.1. The Respondents are directed to take a decision on the amount of stipend payable and the period for which it is payable as early as possible and in any case before the next batch of DNB students are given admission. In Brojo Nath Ganguly, the Supreme Court noted that multiplicity of litigation should be avoided. Keeping this in min, it is directed that the decision taken by the Respondents will be applicable across the board to all institutions that are under the administrative control of Respondents No.1 and 2 and are also accredited to the NBE.

58. The writ petition is, therefore, allowed on the above terms. No costs.