Delhi High Court

Vibha Jain vs Uoi & Ors. on 25 March, 2009

Author: S.Ravindra Bhat

2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Decided on: 25.03.2009

+                       W.P. (C) 6339/2003


      VIBHA JAIN                                   ..... Petitioner
                        Through: Mr. R.P. Gupta, Advocate.

                   versus


      UOI & ORS.                               ..... Respondents

Through: Ms. Sonia Sharma, Advocate for Resp-2.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

% Issue Rule. Ms. Sonia Sharma, Advocate waives notice of Rule. With

consent of counsel for the parties, the matter was heard finally, for disposal.

2. The petitioner claims a direction to the second respondent to pay

remuneration for the period of Post Graduate training undergone by her

between 1997-1999 along with interest and compensation.

3. Briefly, the facts are that the petitioner applied for the Diplomate of

National Board (DNB) course pursuant to an advertisement in 1997. The

DNB course was instituted by the Central Government, Ministry of Health as

an alternative to the regular Post Graduate course; it is scheduled in the

Indian Medical Council Act as a qualification equivalent to Post Graduation in

Medicine. Candidates desirous of admission to the course have to clear an

admission process, after which they undergo training in an accredited

Hospital or Institution. It is not in dispute that second respondent - DDU

Hospital, Government of Delhi Institution is one such accredited Institution.

The petitioner underwent training in the DDU Hospital between 1997-1999.

4. The Scheme of DNB is such that the candidate, after completing

practical training appears in an "exit" examination followed by practical

tests, which includes a viva voce component. It is claimed that the petitioner

was not declared successful in the examination process, despite three

attempts.

5. The petitioner submits having applied to the second respondent -

Hospital, sometime in 2000 claiming stipend for the period of training when

she was asked to discharge medical duties in the Hospital. She submits that

the Medical Superintendent of the second respondent mentioned about a

proposal to pay about Rs.10,000/- per month as stipend. The petitioner felt

aggrieved by the result declared in the DNB and approached this Court by

filing W.P. (C) No.1448/2001. In those proceedings, she challenged the

validity of Clause 6.7 of the Bulletin of Information issued by the DNB dis-

entitling the students appearing in examination from information regarding

the marks obtained by them. The petitioner contends that on 15.7.2002 she

became aware of Regulation 13.3. of the Medical Council of India

Regulations, 2000, enabled payment of a stipend. She, therefore, filed an

Application being I.A. No.6128/2003 for amendment of the relief clause. The

Application was, however, disposed of permitting liberty to her to seek

independent relief. The petitioner relies upon a judgment of this Court in Dr.

Vishal Sehgal & Ors. V. Secretary (Health) & Ors., 116 (2005) DLT 493.

6. The petitioner contends that though facially, the ratio of the decision is

inapplicable because the Court rejected the contractual entitlement of the

petitioner (in those proceedings) to the stipend, yet the relief was granted on

the basis that denial of stipend amounted to an unconscionable bargain.

Learned counsel pointed out to the judgment, particularly para 28 which

records that the petitioner No.1 was clearly informed that the DNB course

with the respondent - also a Government institution was unpaid. Learned

counsel submitted that though contractually it was held that there was no

obligation to pay, however on an application of the principle enunciated by

the Supreme Court in Central Inland Water Transport Corporation Ltd. and

Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156 and State of Haryana

and Anr. v. Ram Chander and Anr., (1997) 5 SCC 253, the Court declared

that denial of stipend amounted to arbitrariness. Learned counsel

submitted that the petitioner in this case also deserves a similar order.

7. The respondents through counsel relied upon the averments made in

the counter affidavit. It was pointed out that like in Vishal Sehgal's case, the

guidelines and the terms of the brochure expressly stated that the position

would be unpaid. Counsel submitted that besides in this case the course was

for the duration 1997-99. It was submitted that Rule 13.3 of the Rules

framed in 2000 and entitling payment of stipend were prospective and if

Courts were to apply the reasoning in Vishal Sehgal's case, the effect would

be to extend it retrospectively.

8. Learned counsel further contended that ratio in Vishal Sehgal's case

was expressly limited as is evident from para 57 of the judgment itself. It

was further contended that the petitioner has been unable to establish if

any rule similar to Rule 13.3 prevailed or existed at the time when she

completed her course. In these circumstances, counsel submitted that it

would not be in the interests of justice to issue the directions sought for by

the petitioner.

9. The preceding narrative would show that on the essential facts

pertaining to the petitioner's admission, her not completing the course in

March, 1999, the absence of an express stipulation vis-à-vis payment of

stipend, etc., the parties are virtually ad idem. The question is whether the

logic and the reasoning in Vishal Sehgal's case cannot be applied to the facts

of this case. The respondents' objection on this score is firstly that the

petitioner is relying upon Rules framed in 2000 which came into force on

22.8.2000. They state that Rule 1 (2) specifically provide that its coming into

force would depend on its Notification in the Gazette. Counsel contended

that gazette notification was later and in the absence of any instructions to

the contrary, the regulations could not be applied retrospectively. Counsel

also made a pointed reference to Regulation 13.3 which is in the following

terms: -

"The postgraduate students of the institutions which are located in various States/Union Territories shall be paid remuneration at par with the remuneration being paid to the postgraduate students of State Government medical institutions/Central Government, Medical Institutions, in the State/Union Territory in which the institution is located. Similar procedure shall be followed in the matter of grant of leave to Postgraduate students."

10. The further submission was that in this case, the petitioner is relying

upon Regulations - an element which was lacking in Vishal Sehgal's case.

Therefore, submit the respondents, the relief sought cannot be granted on

the basis of a norm which came into force after the completion of the

training.

11. The arguments of the respondents are facially attractive.

Undoubtedly, the norm i.e. the Post Graduate Medical Council Regulations

were framed in 2000. Yet what is important to notice is that the respondents

do not dispute that the petitioner was, during the course of her training

being involved actively in discharging the duties of a medico or Doctor in the

Hospital. This itself afforded a cause of action to her to claim the amount.

The fact that the brochure of admission excluded any liability to pay stipend,

does not in the opinion of the Court act as an impediment to her claim.

There is nothing on the record to show that the duties discharged or

performed by the petitioner were in any manner inferior to that of Doctors

who performed their jobs in the Hospital with a similar qualification. If that

be the situation, the mere fact that the DNB course form issued by the

respondents expressly stated that no stipend would be paid or did not

provide it in the brochure or admission form, would not make any difference.

12. In that respect, the application of the unenforceability of an

unconscionable condition invoke the principle of non-discrimination and

fairness in Central Inland Water Transport Corporation Ltd. case relied upon

in Vishal Sehgal's decision would squarely apply. The Supreme Court has

applied the same rule in two other judgments i.e. Life Insurance Corporation

of India v. Consumer Education and Research Centre 1995 (5) SCC 482 &

Hindustan Times v. State of U.P. (2003) 1 SCC 591. Besides, such conditions

cannot be enforced, as being hit by Section 23 of the Central Act.

13. It is now well settled that where a state agency is in a position of

dominance and can dictate its terms or impose other standard form

contractual terms in respect of employment, life insurance etc., the Court's

scrutiny under Article 226 is not excluded; likewise the Supreme Court has

insisted on application of principles underlining underlying Article 14, i.e.

fairness and non-arbitrariness. Therefore, this Court is of the opinion that

the argument about prospective application of the 2000 Regulations

automatically excluding the liability of the second respondent, is not

applicable and has to be rejected.

14. As far as the other aspect, i.e., para 57 of Vishal Sehgal judgment is

concerned, it would be useful to relevant observations in the said ruling: -

"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 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 mind, 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 respondent Nos.1 and 2 and are also accredited to the NBE."

15. No doubt, the learned judge did state that the decision could be

applied to all DNB students who joined the course contemporaneously with

the first petitioner. However, one cannot lose sight of the fact that the

reasoning which persuaded the Court was not on the basis of any rule or

regulation. It was on the basis of an application of Constitutional and public

law standards and the law declared by the Supreme Court which binds this

Court as well as Respondent No.2, a State agency. Moreover, in this case, it

is a matter of record that the petitioner appears to have agitated this very

issue in previous proceedings i.e. WP (C) 1448/2001), but was constrained to

file the present Writ Petition, since she sought to introduce the claims

through an amendment application, which was not accepted.

16. In the circumstances, the petitioner can neither be accused of delay