Dr. Sony S. Paul & Ors. v. State of Kerala & Ors.

W.P.(C)No.1475 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 26TH DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 1475 OF 2023** ## **PETITIONERS:** **1 DR. SONY.S. PAUL, AGED 30 YEARS D/O. PAUL .P. GEORGE, KIZHAKKEKARA HOUSE, CHUZHALI.P.O, KANNUR (DT) – 670142. 2 DR. CHITHRA.V.S, AGED 29 YEARS D/O. VIJAYAN.K, VIJAYA SREE MUNDIAKAL THAZHAM, KOTTAMPARAMBU, KOZHIKODE (DT), PIN – 673008. 3 DR. MERIN MARIAM SAM, AGED 30 YEARS D/O. REV. DR. SAMSON. M. JACOB, UMAYATTUKARA MARTHOMA CHURCH, KALLISSERY, CHENGANNUR, ALAPUZHA (DT), PIN – 689124. 4 DR. PRABHA JOSEPH, AGED 31 YEARS D/O. JOSEPH KUPERTHINOS. KL , KADUNGAM PARAMBIL HOUSE, CHERIYA KADAVU, KANNAMALY.P.O, ERNAKULAM (DT)- 682008.** **BY ADVS. SRI CIBI THOMAS SMT.G.KRISHNAKUMARI SMT.ANSIA K.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REP BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM (DT) - 695 001.** - **2 DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE,** W.P.(C)No.1475 of 2023 2 **REPRESENTED BY ITS DIRECTOR, KARAKKONAM.P.O, THIRUVANANTHAPURAM (DT), PIN – 695504.** - **3 THE PRINCIPAL, DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE, KARAKKONAM.P.O, THIRUVANANTHAPURAM (DT), PIN – 695504.** - **4 THE ADMISSION SUPERVISORY COMMITTEE AND FEE REGULATORY COMMITTEE,** - **T.C. 1553-4, PRASHANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014, REP. BY ITS CHAIRMAN** - **5 THE COMMISSIONER OF ENTRANCE EXAMINATION, COMMISSIONARATE OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** - **6 THE DIRECTORATE OF HEALTH SERVICES, PALAYAM-AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD JUNCTION, THIRUVANANTHAPURAM-695033, REP.BY ITS DIRECTOR.** - **7 THE NATIONAL MEDICAL COMMISSION, POCKET-14, SECTOR-8, DWARKA PHASE-1, NEW DELHI-110077, REP. BY ITS CHAIRMAN.** **BY ADVS. SRI S.SREEKUMAR (SR.)(S-571) SRI ARUN.B.VARGHESE SMT.MARY BENJEMIN SMT.AISWARYA V.S.(K/001596/2018) SRI.TITUS MANI VETTOM, SC SRI.VENUGOPAL, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.12.2023, THE COURT ON 26.02.2024 DELIVERED THE FOLLOWING:** W.P.(C)No.1475 of 2023 3 ## **T.R. RAVI, J. -------------------------------------------W.P.(C)No.1475 of 2023 -------------------------------------------Dated this the 26th day of February, 2024** ## **JUDGMENT** The petitioners are doctors who completed their Post Graduate course from Self-Financing Medical Colleges. They had been admitted to the colleges in the Government quota as per the seat-sharing agreement entered into between the Government and the Managements of Self-Financing Medical Colleges during the year 2019-20. The duration of the course was three years. The result of petitioners 1 and 2 was published on 11.07.2022, and the result of petitioners 3 and 4 was published on 24.12.2022. The 3 rd respondent issued Exts.P1 and P2 communications to petitioners 1 and 2 seeking to enforce the bonded obligation to serve as Senior Resident as stipulated in the prospectus and G.O.(MS) No.45/2019/H&FWD dated 18.03.2019. The letter also said that there is such a requirement as has been reiterated by this Court in its decisions. The petitioners 3 and 4 were not issued with any such communications. It is stated in the writ petition that the 1st petitioner was constrained to join duty as Senior Resident in the college on 26.09.2022 since the college authorities were not ready W.P.(C)No.1475 of 2023 4 to return the certificates. It is in the above circumstances that the writ petitioners have approached this Court praying for a declaration that bonds similar to Ext.P3 executed by the petitioners are unenforceable and that the 2nd respondent college has no power or authority to insist that the petitioners discharge the bonded obligation so created. There is also a prayer for directing the respondent colleges to relieve the petitioners from the bonded obligation and to return the certificates produced by them at the time of admission and the provisional certificates issued to them by the University forthwith and for a declaration that the provisions contained in Clause 12-1(b) of Ext.P5 is unenforceable and unconstitutional. 2. The respondents have filed counter affidavits affirming that the students are liable to serve the bond period. 3. Heard Sri Cibi Thomas on behalf of the petitioners, the Government Pleader on behalf of respondents 1, 5, and 6, Sri.S.Sreekumar, Senior Advocate instructed by Sri.Arun Varghese, on behalf of respondents 2 and 3, Smt.Mary Benjamin on behalf of the 4[th] respondent and the Standing Counsel for the 7[th] respondent. 4. The main contention of the petitioners is that the Ext.P5 W.P.(C)No.1475 of 2023 5 prospectus applies for admission to the Government Colleges, and the clauses in the prospectus relating to bonded obligation will not apply to persons like the petitioners who were admitted to the Self-Financing Colleges. It is on the said premise that it is contended that there cannot be any enforcement of the bonded obligation. The respondents, on the other hand, relied on the decisions of this Court in W.P(C) No.20906/2020, RP No.873/2020, order dated 24.03.2021 in RP Nos.115/2021 and 183/2021, order dated 01.07.2021 in Special Leave to Appeal (C) No.79207923/2021 of the Hon’ble Supreme Court of India and the order dated 09.05.2019 in Civil Appeal No.4560/2019 of the Hon’ble Supreme Court of India in support of their arguments. 5. In WP(C) Nos.20906/2020 and 21117/2020, this Court, by a common judgment, held that the petitioners therein were liable to serve the institutions where they are studied for a period of one year as per the bond executed by them. The institution referred to in the said judgment is the same institution who are arrayed as respondents 2 and 3 in this writ petition. The learned Single Judge had relied on the judgment of a Division Bench of this Court in **Ayisha Beegum (Dr.) & Ors. v. State of Kerala & Ors. [2018 (2) KHC 600 (DB)]** . In **Ayisha Beegum** (supra), the W.P.(C)No.1475 of 2023 6 Division Bench of this Court was concerned with admissions for postgraduate courses made during 2016. The clause that the Division Bench considered is almost like the one that is available in Ext.P5. After noting the judgment of another Division Bench in **Principal (The Dean), MES Medical College v. Shireen M.T (Judgment dt.22.03.2017 in WA No.493 of 2017)** wherein this Court had held that the certificates referred to are those which were submitted at the time of admission and that the withholding of the certificates was unethical and not correct, the Division Bench in **Ayisha Beegum (supra)** , took a different view and held that the students were bound by the bonded obligation. The learned Single Judge in W.P(C).No.20906 of 2020 also considered a case where the students secured admission during 2017-2018. The petitioners in those writ petitions had filed Review Petition Nos.873 and 875 of 2020, which were dismissed by judgment dated 01.12.2020, finding that there is no change of circumstances than those arising in the judgment in another writ petition W.P(C).No.25957 of 2018. The learned Judge had in the main judgment in the writ petition held that the judgment in W.P(C).No.25957 of 2018 would not be applicable to the case since there were specific provisions contained in the prospectus W.P.(C)No.1475 of 2023 7 that was being considered. The Court held that there was no separate prospectus for Self-Financing Colleges, which governs the petitioners in that case who joined in 2017. Even though the petitioners in W.P(C)No.20906/2020 and the connected case had filed writ appeals, the same were also dismissed, and review petitions filed against the judgments in Writ Appeal Nos.1666 and 1668 of 2020 were also dismissed. A contention had been taken before the Division Bench that the prospectus relied on would not apply to students who were admitted to the Self-Financing Medical Colleges. However, the Division Bench, after referring to a government order dated 02.03.2017 approving the prospectus for the year 2017-2018, held that the prospectus was binding on all institutions, including Self Financing Colleges. 6. The question is whether the above-said judgments would determine the fate of the petitioners herein. The answer is that it would not. 7. Ext.P5 is the prospectus based on which the petitioners were admitted. The prospectus was approved by G.O(M.S.)No. 45/2019/H&FWD dated 18.03.2019. The Government Order specifically says that what is approved is the prospectus for admission to Medical Postgraduate Degree/Diploma Courses in W.P.(C)No.1475 of 2023 8 Government Medical Colleges in the State and RCC, Thiruvananthapuram for the academic session 2019-2020. The order does not refer to Self-Financing Colleges. The prospectus specifically says that the prospectus issued for the previous years is not valid. Clause 12 deals with liquidated damages and execution of bond. Clause 12-1(b) says that all the general merit candidates, including All India Ouota (AIQ) candidates, admitted to Medical Postgraduate Courses in Kerala shall serve the Government of Kerala in medical education services as Senior Residents as decided by the DME/Principal of the Colleges for a continuous period of not less than one year immediately after the competition of the course without break. A reading of the said clause would clearly show that what is intended is to serve the Government and not serve a Self-Financing College. It is apparent that the clause refers only to students who are getting admission to the Government Medical College. By stating that the terms and conditions, including remuneration, are to be decided by the Government of Kerala, the above position is further clarified. It is in the above context that the authority is given to the Principals of the Colleges where the students completed the courses to retain the certificates till such time as proof of satisfactory completion of W.P.(C)No.1475 of 2023 9 the courses given by the competent authorities, that is, DMO/Principal of the College where bond posting is given. Since there is no bonded service contemplated for students undergoing courses in a Self-Financing College, the Principals of the College where they studied do not have any authority to retain the certificate according to Clause 12-1(b). The above conclusion is supported by the other clauses in Ext.P5, which are referred to below. Clause 12-2.1 says that a Post Graduate student, including in-service candidates discontinuing the PG Course, will have to pay Rs.50,00,000/- as liquated damages to the Government of Kerala. Apparently, the reference can only be to a person who is undergoing a course in a Government College. Clause 12-2.4 says that if there is a violation of the bonded condition contained in clause 12-1(b) in the payment of liquidated damages contemplated in 12-2.9, it will be construed as professional misconduct and the fact reported to TC Medical Council for suitable action including cancellation of registration by the Council. The clause deals with the consequences that would befall those who failed to do the Government service as stipulated, which cannot be the “service” that has been demanded by respondents 2 and 3 in Exts.P1 and P2. The clause also refers to the power of the W.P.(C)No.1475 of 2023 10 Government to insist on a sum of Rs.50 lakhs as liquidated damages. Clause 12-2.7 refers only to the withholding of certificates that are submitted to the college at the time of admission and not the course certificates. The bond format is specified in Ext.P5, and they have been annexed as Annexures V, VI, and VI(a). Annexure V says that the bond is to be executed by all candidates admitted to Post Graduate Medical Courses in the State Medical Colleges. It specifically refers to admission to Government Medical Colleges and not to Self-Financing Colleges. Annexure VI also refers to admission to the Government Medical Colleges. Annexure VI(a), which is to be executed by service candidates, also speaks only of admission to Government Medical Colleges. 8. Pending the writ petition, the Government Pleader was directed to get specific instruction as to whether Ext.P5 would apply to students who were admitted to Self-Financing Colleges. An affidavit has been filed by the 1st respondent on 18.10.2023, wherein it is specifically stated in paragraph No.3 of the affidavit that Ext.P5 applies only to students admitted to Government Medical Colleges in the State and the RCC. Reference is made to the prospectus, which was issued for the year 2023-2024, wherein W.P.(C)No.1475 of 2023 11 it is stated that it would apply to students who were taking seats in the Self-Financing Medical Institutions also. Given the categoric admission by the 1st respondent that Ext.P5 will not apply to SelfFinancing Colleges, the only conclusion possible is that the demand in Exts.P1 and P2 is unwarranted. 9. The writ petition is hence allowed. It is declared that the conditions in Ext.P5 prospectus relating to bonded service will not bind students admitted to Self-Financing Colleges. Ext.P3 and similar bonds executed by the petitioners are unenforceable, and it is declared that the 2nd respondent college has no power or authority to insist that the petitioners discharge the bonded obligations so created. There will be a direction to the 2nd respondent college to return the certificates produced by the petitioners at the time of admission and the provisional certificates issued to them by the University within two weeks from the date of receipt of a certified copy of this judgment. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.1475 of 2023 12 ## **APPENDIX OF WP(C) 1475/2023** ## **PETITIONERS’ EXHIBITS** **Exhibit P1 TRUE COPY OF THE COMMUNICATION DATED 16.08.2022 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED 16.08.2022 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** - **Exhibit P3 TRUE COPY OF THE BOND EXECUTED BY DR. MOHITH MATHEW AT THE TIME OF ADMISSION TO THE PG COURSE IN THE 2ND RESPONDENT COLLEGE DURING 2019-2020.** - **Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 03.01.2023 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT.** - **Exhibit P4(a) TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE SUBMISSION OF EXT. P4.** - **Exhibit P5 TRUE COPY OF G.O.(MS)NO. 45/2019/H&FWD DATED 18.03.2019 WITH PROSPECTUS APPENDED THEREWITH.** - **Exhibit P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 25987/2018 DATED 25.03.2019.** - **Exhibit P7 TRUE COPY OF THE JUDGMENT IN WA.NO. 1666/2020 DATED 21.12.2020.** - **Exhibit P8 TRUE COPY OF G.O.(MS)30/2018 H&FWD Exhibit P9 TRUE COPY OF LETTER NO. S2/141/2018 H&FWD DATED 04.08.2018.** **Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 20.09.2022 IN WA.NO. 757/2020 OF THE HON'BLE MADHYA PRADESH HIGH COURT. Exhibit P11 TRUE COPY OF THE ORDER DATED 18.11.2022 IN PETITION FOR SPECIAL LEAVE TO APPEAL (C).NO.19396/20202. Exhibit P12 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT REGARDING THE PAYMENT OF FEE FOR THE 1ST AND 2ND YEARS BY THE 3RD PETITIONER.** W.P.(C)No.1475 of 2023 13 **Exhibit P13** **TRUE COPY OF THE OFFICE ORDER ISSUED BY SREE GOKULAM MEDICAL COLLEGE AND RESEARCH FOUNDATION DATED 25.11.2022 RELIVING THE PG DEGREE STUDENTS ADMITTED TO THE COLLEGE DURING 2019-2020.** - **Exhibit P14 TRUE COPY OF THE REPLY ISSUED BY THE OFFICE OF THE 1ST RESPONDENT UNDER RIGHT TO INFORMATION ACT.** - **Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 13.05.2022 IN WP(C).NO. 12541/2022 OF THE HON'BLE MADRAS HIGH COURT.** - **Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 16.07.2020 IN B.A.NO. 3945/2020.** - **Exhibit P17 TRUE COPY OF THE POSTING ORDER ISSUED TO THE 3RD PETITIONER FROM GOVT. MEDICAL COLLEGE, THIRUVANANTHAPURAM, DATED 21.01.2023.** - **Exhibit P18 TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO MS/MD COURSES 2019 -20 ISSUED BY THE 3RD RESPONDENT.** - **RESPONDENTS’ EXHIBITS** - **EXHIBIT R3(A)** **A TRUE COPY OF THE COMMON JUDGMENT DATED 03.11.2020 IN WP(C )NO: 20906/2020 AND WP(C )NO: 21117/2020 OF THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT R3(B) A TRUE COPY OF COMMON ORDER DATED 01.12.2020 IN RP NO: 873/2020 AND R.P NO: 875/2020.** - **EXHIBIT R3(C) A TRUE COPY OF THE ORDER DATED 24.03.2021 IN RP NO: 115/2021 AND 183/2021 OF THE HONOURABLE HIGH COURT OF KERALA.** **EXHIBIT R3(D) A TRUE COPY OF ORDER DATED 01.07.2021 IN SPECIAL LEAVE TO APPEAL (CIVIL) NO: 79207923/2021 OF THE HONOURABLE SUPREME COURT OF INDIA.** **EXHIBIT R3(E) A TRUE COPY OF ORDER DATED 09.05.2019 IN CIVIL APPEAL NO: 4560/2019 PASSED BY THE HONOURABLE SUPREME COURT OF INDIA.** W.P.(C)No.1475 of 2023 14 **EXHIBIT R1(A)** **TRUE COPY OF THE G.O.(RT)NO.271/2017 H AND FWD DATED 01.02.2017 ALONG WITH THE COVERING LETTER DATED 02.03.2017 ADDRESSED TO THE COMMISSIONER OF ENTRANCE EXAMINATION.** **EXHIBIT R1(B) TRUE COPY OF THE G.O.(RT)NO.772/2017/H AND FWD DATED 22.03.2017. EXHIBIT R1(C) TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES 2017/2018 WHICH WAS APPROVED ON 02.03.2017.** **EXHIBIT R1(D) TRUE COPY OF THE G.O.(MS)NO.101/2019/H AND FWD DATED 08.07.2019.**