Judgment:
R.K. Abichandani, J.
1. The petitioner challenges the order dated 7th January, 1993 at Annexure 'T' to the petition passed by the Dean of the B.J. Medical College, Ahmedabad directing the petitioner to pay up the amount of Rs. 5,000/- under the bond executed by the petitioner on 30-6-1972.
2. The petitioner executed a bond on 30-6-1972 pursuant to the policy of the Government to prescribe a condition for admission to Medical Colleges in the State for M.B.B.S. degree course under which the executant of the bond could be required by the Government to serve in the rural areas for minimum period of two years, on such remuneration as may be prescribed therefor. The material conditions of the bond which was executed by the petitioner are as under:
Now, the conditions of the above written obligation is that the student shall:
(1) diligently prosecute and complete the said course at the said College or any other Medical College in the country and pass the prescribed University examination for the said course, and
(2) within a period of 30 days from the date of his/her completing the period of internship or rotating housemanship, give to the Government by registered post notice in writing intimating the completion of his/her period of internship or housemanship provided, however, that if the student is desirous of continuing post-graduate studies, such notice shall expressly specify such desire and request for permission of the Government to continue such post-graduate studies and it shall be open to the Government in its absolute discretion to refuse such permission or to grant it subject to the Condition that the student shall within one month from the completion of post-graduate course, give a like notice to the Government and,
When called upon by the Government at any time within a period of two months from the receipt of the notice from the student as aforesaid, join the State Medical Services and serve in rural area anywhere in the State for a minimum period of two years at such remuneration as may be prescribed therefor and in the event of the student being so called upon by the Government join the State Medical Services and serve them for two years or serve the State Government in rural areas State Medical Services for the aggregate period Of two years and during the period during which the student is required to serve under the ptovi-sions of this bond faithfally discharge the duties assigned to him by the Government, or his/her other superiors with utmost diligence and efficiency and shall observe the rules for time being in force regulating the conduct of persons so serving.
Then the above written bond shall become void otherwise the same shall remain in full force and virtue.
In the event of the student committing breach of any of these terms, the entire amount of Rs. 5,000/- or such lesser sum as may be decided upon by the Government so to become payable to the Government. The amount could be recovered by the Government from the student or the natural guardian in case of a minor student and the surety.
3. There is no indication either in the petition or in the record shown on behalf of the respondents today as to whether any notice of 30 days was given by the petitioner as per condition No. 2. It, is, however, stated by the learned Counsel Mr. Bukhari for the respondents that usually the Dean of the College within a couple of months of completion of the period of internship or housemanship forwards the list of such candidates to enable the Directorate to enforce the conditions of the bond by requiring them to render their services as envisaged in the bond. It appears that the respondents came to know about the petitioner's having completed his internship. After having completed his internship in June, 1979, the petitioner came to be appointed by an order dated 8-11-1979 passed by the Director of Health Services as Medical Officer Class II in the Gujarat Public Health Services and he was posted on deputation to the District Panchayat, Surendranagar. Pursuant to the said appointment, he started rendering his services in the Primary Health Centre at Ranpura, which admittedly is a rural area. The appointment order indicated that the petitioner was to be on probation for a period of two years. It appears that thereafter on 9-6-1980, another order came to be made by the Directorate of Health Services (Medical) appointing the petitioner as Medical Officer in Gujarat Medical Services Class-11 for a period of one year or until the availability of regular recruits through the G.P.S.C. Pursuant to this appointment order, the petitioner came to be relieved by the District Development Officer, Surendranagar on 4-8-1980. Thereafter on 7-7-1981, by an order made by the Director of Health and Medical Services, the services of the petitioner were terminated on the ground, that G.P.S.C. candidates were available for the post of Medical Officer Class-11 and the petitioner came to be relieved with immediate effect. Admittedly, the earlier appointment dated 8-11-1979 of the petitioner as a Medical Officer Class-11 in Gujarat Public Health Services was a regular appointment through the Public Service Commission and he was to be on probation for two years. The same Directorate, however, issued the order dated 9-6-1980 appointing the petitioner as Medical Officer in Gujarat Medical Services Class-11 for one year or until regular candidates were available whichever was earlier. The petitioner honouring this mandate left his regular appointment to join as Medical Officer in Gujarat Medical Services Class-11. Thus, when required to join the State Medical Services, the petitioner did join the services and served in the rural area. He would have continued to serve in order to complete his period of two years, but for the fact that his services were terminated by the Government. The words 'and serve them for two years or serve the State Government in rural areas S.M.S. for aggregate period of two years' cannot be construed so as to mean that all throughout the lifetime of a doctor executing such bond he could be recalled at any time, at the whim of the department to complete the period of two years, by giving him sporadic short term appointments. The bond requires the Government to act within six months after the notice of completion of internship. In other words, if the student who has completed the course of internship, is not called upon by the Government within a period of six months from the receipt of the notice to join medical services, as stipulated, the Government cannot thereafter requisition his services. Thus, the idea of executing a bond is not to bind the candidate for all time to come. A bond is a clear fetter on the right of the student completing the medical course to the freedom that he would otherwise have in respect of pursuing his profession and such a bond, therefore, has to be strictly construed. The Government had not proceeded against the petitioner on the footing that he has committed breach of the conditions of the bond by not issuing the notice of 30 days. Non-issuance of notice as per condition No. 2 by itself would have been a breach. The Government, however, as per the practice prevalent of the Dean sending particulars about those who have completed internship within a couple of months had waived any breach of conditions No. 2 that may have been committed by non-issuance of the notice by the petitioner and issued appointment of the petitioner to which the petitioner responded. When the services of the petitioner were terminated by the Directorate itself by the order dated 7-7-1981, the petitioner could not be blamed for not completing the period of two years. It, therefore, cannot be said that the petitioner had committed a breach of condition of the bond which required him to serve for an aggregate period of two years. When the petitioner's services were terminated on 7-7-1981, there was no indication to him that he was to be continued. The words 'aggregate period of two years' in condition No. 3 have reference to the aggregate services in the State Medical Services in the rural areas. Once the student joins the service responding to the call which is required to be made by the Government within six months of the notice of completion of internship, it may be open to the State Government to post him in various rural areas and the aggregate period of two years has reference to his aggregate services in various rural areas and would not contemplate break in service. If the State Government is allowed to implement the bond for a short period at a given point of time and thereafter, at any time, say, after a year or two for another short period and in that manner to expect the aggregate period of two years service to be completed, the terms of the bond would clearly be arbitrary and oppressive. Such a construction would lead to absurdity and a student clearing medical course would be expected to rejoin even after termination of his services at any time going the period of his career, whenever called upon by the Government. The fact that the Government is required to act within six months clearly negates such a course where the services of the executant of the bond after being called to join are terminated and again after a lapse of time he is recalled to complete the rest of the period. It is, therefore, clear that when the petitioner responded to the call of the Government and joined the services he had fulfilled the bond and he cannot be said to have committed any breach thereof. When the State Government terminated his services on 7-7-1981, the petitioner was clearly not obliged to remain in reserve for being called in future and not to pursue his own vocation. Such uncertainty as to when the candidate, who has responded to the call by joining the services and whose services are terminated, would be called again is clearly not contemplated by the terms of the bond.
3.1 There is yet another aspect of the matter. The authorities have attempted to enforce the bond by getting recovery notices issued against the petitioner for the recovery of the amount by way of arrears of land revenue. There is no term in the bond envisaging that the recovery in the event of breach being committed would be made by following the procedure for recovery of arrears of land revenue. The petitioner had prayed for interim injunction restraining the respondent No. 2 Mamlatdar (Recovery), Health and Medical Education from effecting any recovery on the strength of the decision of the respondent No. 1. The Recovery Mamlatdar had issued notices for the recovery of the amount as arrears of land revenue and the copies of the notices are at Annexure 'D' dated 9-6-1987, Annexure 'F' dated 16-9-1991 and Annexure 'I' dated 22-4-1992. Though the petitioner had responded pointing out the services he had rendered, the authorities insisted on the recovery of the amount and forwarded the papers to the Mamlatdar for effecting the recovery. It was submitted that such recovery could be effected under the provisions of Section 187 of the Bombay Land Revenue Code, 1897. Section 187 indicates that all sums and monies mentioned therein declared by the Code or any other Act or regulation for the time being in force or by any contract, with the Government to be leviable as an assessment, or as a revenue demand, or as an arrear of land revenue, shall be levied under the provisions of Chapter XI and all the provisions of that Chapter so far as may be, would be applicable thereto. Section 150 of the Code which falls in Chapter XI, lays down the process for recovery of arrears. The bond executed by the petitioner is totally silent as to the manner of recovery of the amount and there is no declaration contained therein that the amount of Rs. 5,000/- would be leviable as arrear of land revenue. It is only when the sums are declared by any contract with the Government to be leviable as an arrear of land revenue, that the sums can be so levied under the provisions of Chapter XI and be recovered by the coercive process laid down in Section 150 of the Code. Merely because Section 150 of the Code prescribes the process of recovery, it does not follow that the State can recover the amount due from the petitioner under the said bond as an arrear of land revenue. Since the bond did not provide that the amount payable by the petitioner shall be recovered by the State as an arrear of land revenue, the process of recovery as arrear of land revenue cannot be resorted to. The respondents, therefore, could not have invoked the provisions of Section 187 of the Code for the recovery of the amount as an arrear of land revenue from the petitioner on the basis of the said bond. Similar view was taken in the context of a surety bond by the Division Bench of this Court in Jayantilal T. Patel v. B.M. Gandhi reported in (1965) VI GLR 337.
4. In the above circumstances, the impugned order dated 7th January, 1993 at Annexure 'T' to the petition passed by the respondent No. 1 is hereby set aside on the ground that the petitioner has not committed breach of the condition of the bond as held in that order. No recovery, therefore, can be effected from the petitioner. The petition is accordingly allowed. Rule is made absolute with costs.