Delhi High Court

Ajay Kumar Yadav And Ors vs All India Institute Of Medical ... on 16 July, 2013

Author: V. K. Jain

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on   : 11.07.2013
                              Judgment pronounced on : 16.07.2013

+      W.P.(C) 3465/2011
       DR. SANJAY KUMAR YADAV & ORS.                   ..... Petitioners

                       Through      Mr. Nitin Gupta and Mr. M.D.
                                    Sharma, Advs.

                       Versus

       ALL INDIA INSTITUTE OF MEDICAL SCIENCE, NEW
       DELHI & ANR.                         .... Respondents

                       Through      Mr. Sumit Babbar, Adv. for R-1.
                                    Mr. Neeraj Chaudhari, CGSC with
                                    Mr. Ravjyot Singh, Adv. for R-2.

                                 And

+      W.P.(C) No.6300/2011

       AJAY KUMAR YADAV AND ORS              ..... Petitioners
                   Through Mr. Nitin Gupta and Mr. M.D.
                           Sharma, Advs.
                   versus

       ALL INDIA INSTITUTE OF MEDICAL SCIENCES NEW
       DELHI AND ANR                           ..... Respondents
                      Through     Mr. Sumit Babbar, Adv. for R-1.
                      Mr. Neeraj Chaudhari, CGSC with Mr. Ravjyot
                      Singh, Adv. for R-2.

      CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN
V.K. JAIN, J.

The petitioners are doctors, who are pursuing their post graduation

with respondent No. 1-All India Institute of Medical Sciences (AIIMS).

All of them were admitted against the seats meant for sponsored/foreign

candidates. The petitioners were subjected to the same examination in

which the other doctors pursuing post graduate courses in AIIMS were

subjected. They fulfilled all the eligibility norms, prescribed by

respondent No. 1 and no concession in merit or otherwise was accorded

to them. A combined list of sponsored/foreign national candidates is

prepared and seats are allotted purely on merits on the basis of

performance in the entrance test. The candidates who are permanent

employees of Central/State Government or the Armed Forces can be

sponsored by the respective Government or Defence Authority. No

sponsored candidate is paid any emolument by the Institute during the

training period, such payment being the responsibility of the sponsoring

authority, i.e., Central/State Government or Defence Authority. The

candidates joining these Post Graduate courses such as MD/MS/MDS are

called Junior Residents in the Clinical Disciplines and Junior

Demonstrators in Basic Clinical Disciplines. The Junior

Residents/Demonstrators (three years tenure period) are paid a sum of Rs

15,600 + 5400 Grade Pay + LPA and other allowances, as admissible

under the Rules in the first of year of residency.

2. The grievance of the petitioners before this Court is that they are

being treated at par with sponsored candidates and no emoluments are

being paid to them though such emoluments are being paid to other

Junior Residents/Demonstrators, except those who are admitted as

sponsored candidates. Their contention is that they are as much qualified

as the other Junior Residents/Demonstrators and perform the same duties

and functions and, therefore, the refusal to pay emoluments being paid to

other Junior Residents/Demonstrators, to them amounts to contravention

of their fundamental right under Article 14 of the Constitution. This is

also their contention that they cannot be treated at par with sponsored

candidates because the obligation to pay such emoluments to the

sponsored candidates rests with the concerned Government/Defence

Authority. The petitioners are accordingly seeking the following reliefs:-

(i) Setting aside the clauses 2 (c) and (f) under Section VIII in

prospectus of respondent No. 1 as null and void, being violative of

Articles 14 and 21 of the Constitution of India;

(ii) Directing Respondent No. 1 to confer same economic and monetary

benefits upon the Petitioners as given to the Indian National candidates,

under the heading of „emoluments‟, and also treat Petitioners equally with

Indian National candidates, with immediate effect;

(iii) Directing Respondent No. 1 to pay emolouments and other

allowances to the Petitioners, for the services rendered by them since the

date of their admission, which are equivalent to that given to Indian

National candidates;

3. In its counter-affidavit, respondent No.1-All India Institute of

Medical Sciences has not disputed the averments made in the petition, but

has taken the plea that the sponsored/foreign national Post Graduate seats

in each Department has been created on the basis that there is no financial

implication on the part of the Institute. This is also their contention that

the term regarding non-payment of emoluments to foreign candidates

having been incorporated in the prospectus itself and the petitioners

having taken admission on the basis of the terms and conditions

contained in the prospectus, it is not open to them to question the denial

of emoluments to them in terms of clause 2(c) and (f) of the prospectus.

According to respondent No. 1, it was made clear in the prospectus itself

that the foreign candidates will be treated at par with sponsored

candidates and therefore, they are not entitled to any emoluments from

the Institute.

4. In its counter-affidavit, Respondent No. 2-Union of India has taken

the stand that it is only forwarding the applications of the foreign students

to respondent No. 1 and the terms and conditions of their admission are

decided by the said respondent, without any role being played by the

Government.

5. Article 14 of the Constitution mandates that the State shall not

deny to „any person‟ equality before the law or the equal protection of the

laws within the territory of India. As pointed out by Supreme Court in

Chairman, Railway Board and Others and Chandrima Das (Mrs) and

Others (2000) 2 SCC 465, the fundamental rights guaranteed under our

Constitution are available to all the „citizens‟ of the country, but a few of

them are also available to the „non-citizen‟. As observed by the Apex

Court, Article 14, which guarantees equality before law or the equal

protection of law within the territory of India, is applicable to a „person‟

which would include the „citizens‟ of the country and „non-citizen‟ both.

There are Articles such as 15, 16 and 19 where the expression „citizen‟

and not the expression „person‟ has been used, meaning thereby that the

rights guaranteed under the aforesaid Articles are not available to non-

citizens. Thus, the enforcement of fundamental right guaranteed under

Article 14 of the Constitution can be claimed not only by an Indian

citizens, but also by a foreign citizen, to the extent such enforcement is

sought in the territory of India. Therefore, the foreign nationals, who are

pursuing Post Graduate Courses in All India Institute of Medical Sciences

are entitled to equal treatment in the matter of grant of emoluments unless

it can be shown on account of some factors or circumstances they belong

to a different class which can be subjected to a different treatment. The

concept of equality allows differential treatment, but prevents distinctions

that are not properly justified. The question which then arises for

consideration is as to whether it would be a reasonable classification to

treat the foreign citizens pursuing Post Graduate courses in AIIMS as a

separate well-defined class which can be subjected to a differential

treatment. In order to withstand the test of permissible classification, two

conditions needs to be fulfilled, namely, i) the classification must be

founded on an intelligible differential which distinguishes persons or

things that are grouped together from others left out from the group and

ii) the differentia must have a rational relation to the object sought to be

achieved by the Statute in question. The Court would be entitled to

interfere only where the classification results in a pronounce inequality

not otherwise.

6. When a Statute is challenged on the ground that it denies equal

protection guaranteed under Article 14 of the Constitution, the question

which falls for determination by the Court is not whether it has resulted in

equality, but whether there is some difference which bears a just and

reasonable relation to the object of the Statute. Article 14 of the

Constitution can be said to be violated only when it is shown that

differentiation is unreasonable or arbitrary and does not rest on any

rational basis, having regard to the object which the Statute has in view.

7. A perusal of the prospectus issued by respondent No. 1-All India

Institute of Medical Sciences for admission to Post Graduate Courses

would show that the foreign nationals are considered against the seats

advertised under the sponsored category and no seats in any discipline are

reserved for them (except the bilateral agreement between the

Government of India and any other nation). All of them are required to

appear in the entrance test and are selected purely on merit. This is also

not the case of the respondents that they are employees of some

Government/organization, which pays emoluments/ salary to them or that

Government of the country to which these persons belong is meeting all

their expenses during the period they study in AIIMS. Therefore, in all

respects, including qualification, eligibility and merit they are equal to

other doctors pursuing Post Graduate Courses in AIIMS, who are getting

emoluments, while working as Junior Residents/Demonstrators. Not only

are they studying, they are also required to work in the hospital during the

period of their residency. Therefore, I find no reasonable basis for

treating such doctors as an altogether different class, which can be

subjected to a differential treatment in the matter of payment of

emoluments by respondent No. 1-All India Institute of Medical Sciences,

which is „State‟, within the meaning of Article 12 of the Constitution. It

is true that sponsored candidates with whom the petitioners are equated

are not paid any emoluments by All India Institute of Medical Sciences,

but a perusal of the prospectus would show that such candidates are

permanent employees of the concerned Government/Defence Authority

and the payment of emoluments to such candidates is the responsibility of

the Sponsoring Authority, i.e., Central/State Authorities or Defence

Authority. The sponsored candidates being permanent employees who

get salary/emoluments from their employer can certainly be treated as a

different class from those who are not likewise employed and do not get

salary/emoluments from their employers, but to treat the foreign nationals

even when they are not employed and do not get salary/emoluments from

any one, including their Government, cannot be said to be reasonable or

justified. Denial of emoluments to such students, in my view, is wholly

arbitrary and unreasonable, thereby violating Article 14 of the

Constitution.

8. In J. Denis Winston vs. the Academic Officer, W.P.(C) No.

5458/2012 and M.P. No. 1/2012, decided on 16.07.2012, the petitioner

before Madras High Court, after completing MD course from a college in

Russia, was enrolled as CRRI Trainee with Stanley Medical College,

Chennai. After being enrolled by Medical Council of India, when he

applied for NOC for undergoing CRRI training, his request was accepted,

but he was not shown as a non-stipendiary intern. The aforesaid

condition, contained in the NOC was challenged by the petitioner on the

ground that it violated Article 14 of the Constitution and was

discriminatory since he was performing the same duties as were being

performed by the other interns. The respondent before the High Court

took the plea that no stipendiary condition was imposed in view of an

order issued by Government of India, Ministry of Health and Family

Welfare, stipulating collection of fee in lump sum from students from the

foreign countries. The stand taken by the Government of Tamil Nadu was

that the candidates of other University do not have the skills or the

standards of the students of Tamil Nadu and the object of the training was

to give abundant clinical knowledge to them so as to bring them at par

with the students who had studied in Tamil Nadu. The contentions of the

respondents before the High Court was that the petitioner could not allege

discrimination since he along with foreign students formed a class

separate from that of the interns who had passed their MBBS from the

college affiliated to the University in Madras. Rejecting the contentions

of the respondents, the High Court, inter alia held as under:-

"17. The petitioner therefore, is having the same qualification as others Interns, who have done their MBBS from Dr. MGR University, specially when it is not disputed, that the petitioner as well as other interns are performing the same duties as CRRI trainees.

18. It is not permissible for the respondents to discriminate between similarly situated persons, on the ground of their having acquired qualification from different sources. The students from the Foreign

Universities, who have cleared the examination, conducted by the National Board of Medical Examinations and students from other States undergoing internship, i.e., CRRI training forms one class, therefore, action of the respondents in discriminating similarly situated persons cannot be sustained, being violative of Article 14 and 16 of the Constitution of India.

19. The Government orders, on which reliance has been placed, are merely Government instructions, which do not have statutory force of law. It is not disputed, that the Medical Council of India does not categorize the foreign students, who have cleared examinations conducted by the Medical Board of Examinations of the Medical Council of India, to be different from the students, who have acquired their MBBS qualification from the State Universities are projected. The Government orders on which the reliance is place being violative of Article 14 of the Constitution, deserve to be declared as unconstitutional."

9. It is true that the petitioners have taken admission knowing fully

well under the terms contained in the prospectus that they would not be

getting any emoluments from All India Institute of Medical Sciences, but,

when the matter involves violation of their fundamental right guaranteed

even to „non-citizens‟ under Article 14 of the Constitution, it cannot be

said that having taken admission knowing fully well that they will not be

paid any emolument, they cannot seek enforcement of the fundamental

right available to them. Ordinarily the terms and conditions stipulated in

the prospectus are binding upon the applicants, but when it comes to

enforcement of a valuable fundamental right such as the right of equality,

guaranteed even to the non-citizens, and results in denial of payment to

them while taking work from them in the hospitals, and making such