R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 25176 OF 2017(EDN-RES) BETWEEN:
DR SAMHITA ULLOD D/O MR.JUSTICE SREENIVAS HARISH KUMAR, AGED ABOUT 23 YEARS, R/AT 4225, SOUPARNIKA, 2ND A MAIN, NEAR SEETHA CIRCLE, GIRINAGAR, BANGALORE-560085 … PETITIONER (BY SRI. VISHWANATH R HEGDE, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF HEALTH AND FAMILY WELFARE, VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI, BANGALORE-560001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE DIRECTOR DIRECTORATE OF AYUSH, DHAMVANTHRI ROAD, BANGALOR-560009 3. THE UNDER SECRETARY TO GOVERNMENT DEPT OF HEALTHY & FAMILY WELFARE, VIKASA SOUDHA, BANGALORE-560001 4. THE PRINCIPAL SRI JAYACHAMARAJENDRA INSTITUTE OF INDIAN MEDICINE, GOVERNMENT AYURVEDIC MEDICAL COLLEGE, DHANVANTHARI ROAD, BANGALORE-560009 … RESPONDENTS (BY SMT. PRAMODHINI KISHAN, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVERNMENT ORDER DATED 15.3.2013 IN SO FAR AS IT IMPOSES A CONDITION THAT THE PETITIONER SHALL NOT BE ENTITLED FOR RECIEVING STIPEND DURING INTERNSHIP PERIOD PASSED BY THE R-3 VIDE ANNEX-C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER An Ayurvedic medical student, who having migrated from Sri. B.M.Kankanawadi Ayurveda Mahavidyalaya, Shahpur, Belgaum to the Government Ayurvedic College, Bengaluru, on the condition of not claiming the Internship Stipend is grieving that she has been discriminated inasmuch as other similarly migrated students are not saddled with such a condition and that they are permitted to draw the stipend.
2. The respondents having entered appearance through the learned AGA Smt. Pramodhini Kishan have filed a Statement of Objections opposing the grant of any relief to the petitioner mainly on the ground that she had agreed to the said condition subject to which migration was permitted and therefore, the petitioner cannot turn around and complain.
3. I have heard the learned counsel for the petitioner and the learned AGA for the answering respondents. I have perused the petition papers and the Statement of Objections. I am of the considered view that petitioner need to be granted relief for the following reasons:
(a) The stipend is statutorily prescribed for the students who gain entry to the internship presumably because it is not only a learning process, but, some amount of public service is put in by such students. Extracting service although in the course of imparting instructions would not be in tune with the spirit of Article 23(1) of the Constitution of India which prohibits ‘begar’. The said Article reads as under:
“23(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”
(b) The Apex Court in the case of State of Gujarat vs.
Hon’ble High Court of Gujarat (1998) 7 SCC 392 has ruled that even the prisoners serving the sentence need to be paid some reasonable wages. The Three Judge Bench of the Apex Court has held “It is imperative that the prisoners should be paid equitable wages for the work done by them…….” The Apex Court in the said judgment quoted Section 1 of the Thirteenth Amendment, 1865 to the Constitution of the United States of America which reads as under:
(i) Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
(c) The authorities had no competence to stipulate the condition that the medical student migrating from one college to another shall not claim the stipend during the internship. Even otherwise also such a condition appears to be unconscionable, keeping in mind the purpose of permitting migration.
(d) The authorities have stipulated the condition that the petitioner shall not claim stipend whilst granting permission to migrate from one college to another. Apart from the competence to stipulate such a condition, the question of discrimination too arises inasmuch as petitioner has quoted an instance wherein migration has been allowed sans such a condition. Though, vaguely this has been denied, the answering respondents have not placed relevant material namely the order granting permission to migrate in respect of the said student for ascertaining whether it was similarly conditioned. Thus, petitioner’s Fundamental Right to Equality has been violated.
(e) The right to receive stipend during the internship has trappings of the Fundamental Right guaranteed under Article 23(1) of the Constitution of India and that a Fundamental Rights cannot be waived since they arise from Constitutional Pact between the State and the civilized society. The Apex Court in the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi and Rajasthan and another, AIR 1959 SC 149, has observed therein as under:
“Per S. R.Das C.J. and Kapur, J.: - Article 14 is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e.g., Art. 19, do. The obligation thus imposed on the State, no doubt; enures for the benefit of all persons for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but is available to any person within the territory of India. In the third place it is to be observed that, by virtue of Art. 12, “the State” which is, by Art.14., forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. Therefore, it seems absolutely clear, on the language of art.14 that it is command issued by the constitution to the State as a matter of public policy with a view to implement its object of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare state, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State. (Paras 13 & 14)”
6. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the Government order dated 15.03.2013 and the Communication dated 21.10.2016 issued by the third respondent at Annexure- C & H only to the extent they deny stipend to the petitioner; consequentially Writ of Mandamus issues to the respondents to pay or cause to be paid to the petitioner all that money that would have otherwise accrued due by way of internship stipend, if she is otherwise eligible.
Time for compliance eight weeks. No costs.
Sd/- JUDGE Bsv