The Karnataka High Court has held that notification date June 8 which called upon the fresh doctors to undergo compulsory rural service for a period of one year (under provisions of the Karnataka Compulsory Service to Candidates Completed Medical Courses Act 2012 (Compulsory Act), to be 'reasonable' and that the legislation promulgated by the State in regard to compulsory rural service is not in conflict with either the Indian Medical Council Act or National Medical Commission Act.
A single judge bench of Justice Sachin Shankar Magadum refused interim relief to over 180 MBBS doctors who have filed petitions in the High Court challenging government notification calling upon them for registering online for the Compulsory Rural Service. "The service bonds calling upon the fresh doctors to undergo one year Rural service appears to be reasonable", the Court said.
Further it said, "The legal relationship between the petitioners and the State is that the latter will provide education in medicine by way of subsidized fees on the condition that qualified doctors would serve the rural areas of the State for a specific period of time. This has to be taken as a composite bargain between the State and the students and therefore, the students are bound to undergo compulsory rural service since they have voluntarily executed the Bonds."
The petitioners Dr Prathana N and others had contended that the 2012 Act is a State legislation whereas the NMC Act is a legislation passed by the Parliament and therefore, under Article 254(1), any provision of law made by the Legislature of a State is repugnant to the provision of law made by the Parliament to which Parliament is competent to enact.
Senior Advocate K G Raghavan appearing for one of the petitioners submitted that the NMC Act repeals the Indian Medical Council Act, 1956 (for short 'the IMC Act') and creates overarching scheme to regulate medical education and medical profession and therefore, to ascertain whether there is a repugnancy, the test of two legislations containing contradictory provisions is the only criterion of repugnance.
Further, he argued that under the NMC Act a person has a right to practice medicine immediately upon qualifying the National Exit Test under Sections 15 and 33 of the NMC Act. However, under the IMC Act read with 2012 Act, a person, though even after completing medical course, is not entitled to get registered on the rolls and cannot practice medicine until he/she compulsorily serves the Government. In this background, he would submit to this Court that there is obvious inconsistency between the 2012 Act and therefore, it is repugnant to the NMC Act.
He even contended that "There is a sea change in the scheme of registration under the NMC Act. Post NMC Act, a person need not satisfy the conditions laid down by the State Government in order to secure registration and obtain a license to practice medicine."
Advocate N. Khetty, appearing for National Medical Council contended that the main ground of attack by the petitioners that the 2006 Rules are repugnant to the NMC Act, which has brought about a sea change pursuant to its replacing by the IMC Act is misconceived. He also said the NMC Act has brought about changes in the realm of academia and the medical profession. The application and operation of the NMC Act is prospective.
Finally, placing reliance on the judgement in the case of Bushra Abdul Aleem Vs Government of Karnataka, which upheld the 2012 Act, he submitted that repugnancy of State enactment on compulsory service was urged vis-a-vis IMC Act and the said contentions were negatived by the Judge.
Additional Advocate General submitted that the petitioners who have completed medicine have voluntarily executed the bond that they will provide service in Rural areas of Karnataka and now they cannot turn around and challenge the same.
The court went through the provisions of the NMC Act and said "The object of introducing NMC Act can be traced from the judgment rendered by the Constitution Bench of the Hon'ble Apex Court in the case of Modern Dental College & Research Centre. Therefore, if the IMC Act is compared with the new regime under the NMC Act, this Court would prima facie find that there is no sea change under the Act as contended."
It added "Though the theory of repugnancy is set up by the learned counsel appearing for the petitioners, this Court would prima facie find that there is no much difference between the IMC Act with the present new NMC Act. The IMC Act did not contemplate compulsory service though the previous regime had power which can be traced under the Entry 66 of List-I. Similarly under the new Act, the power to regulate compulsory service also vests under the NMC Act. However, the Legislature has not embarked upon bringing in the component of compulsory service within the ambit of NMC Act as of now. Therefore, what this Court would find, at this stage, is that the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 Rules which regulates compulsory service for having offered medical seats in Government Colleges under subsidized fee is not inconsistent or in conflict with the provisions of the NMC Act."
The court then considered the contention raised by the petitioners that the NMC Act has brought in sea change and therefore, the impugned 2006 Rules is in direct conflict with the Central Legislation under the NMC Act. "However, they have not been able to demonstrate the same," it observed.
Referring to the Apex Court in the case of Association of Medical Superspeciality Aspirants wherein the court had directed the Centre and the Medical Council of India to bring in uniform policy regarding compulsory service to be rendered by the Doctors who are trained in the Government Institutions. The court said "The NMC Act prima facie does not indicate that the new Act covers the law relating to compulsory service. If these elements are missing, then this Court is unable to understand as to how the new NMC Act would occupy the field of compulsory service and therefore, the State Legislature would lack competency to regulate the law relating to compulsory service and bonds executed therein by the students."
It went on to opine " It is trite law that regard must be had to the enactment as a whole, to its main objections and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. The State legislation, in the present case on hand, would at the most defer the process of students getting their name enrolled either in the National Register or State Register as the case may be on account of compulsory service which the students are required to undergo. However, petitioners are not able to demonstrate as to how 2006 Rules would infringe the Central Legislation. This Court would also find that notification at Annexure-A and corrigendum at Annexure-A1 have neither incidentally encroached over NMC Act or IMC Act."
Rural service would sensitize doctors to the miserable health conditions in rural India.
The petitioners tried to impress upon the Court that petitioners are intending to pursue Master degree and therefore, at this stage, if petitioners are compelled to undergo compulsory rural service, that may result in hindrance as the petitioners may not get sufficient time to prepare for the entrance test. Shri Thiruvengadam, counsel also argued that this batch of fresh students may directly be inducted in COVID wards and therefore, it is not in the best interest of students who have just passed out with Undergraduate degree.
Dealing with the submission the court said "Currently 'Community Medicine' is a subject which is cursorily taught to medical students in their early years. Therefore, this Court is of the view that the rural service, in all probability, would sensitize them to the miserable health conditions in rural India and infuse a spirit of voluntary service within them. Therefore, compulsory rural service has to be undergone on priority basis. The medical students are also paid decent remuneration for compulsory rural service and therefore, most students should be willing to put in a year's rural service as they would acquire valuable practical experience."
It added "The new holistic kind of primary care should be practiced by new MBBS students and more medical students should be interested in such a career. These changes are possible only with a thorough reorganization of medical education. To prepare medical students and other health professionals for the new holistic approach will require a considerable broadening of their scientific basis and much greater emphasis on the behavioral sciences and on human ecology."
The court also considered the present situation of Covid-19 and said "We are in the midst of a global pandemic and the experts are anticipating a third wave.Therefore, the duty of care from a legal perspective distinguishes it from broader notion of duty of professionals and personal levels. Therefore, it is high time that the medical professionals understand the concept of duty in their response to COVID-19. The Doctors have a duty to treat and the State is looking upon the Doctors and is expecting them to come forward and counter this pandemic. It is high time that fair and responsible colleagueship, diverse medical specialties needs to be promoted in the prevailing circumstances. We have already seen a disaster which has threatened humanity and valuable lives are already lost. Therefore, the fresh graduates in the present context are a ray of hope for the public at large and if the State calls upon the fresh graduates to compulsorily serve for one year with substantial remuneration and if the State ensures that the Doctors and other health workers stay at their workplace, the threat to the public at large would be taken care of."
Not the time when Doctors spend time Litigating.
Justice Magadum quoted a saying by Shakespeare, "That considerable length of time is lost in challenging the vires of a statute rather than chasing vires which has a relevancy and is aptly applicable to the present pathetic scenario." He added "This is not a time where these young doctors spend their valuable time in litigating and questioning the vires.