W.P.(C) Nos. 31101 & 31690 of 2016 (Kerala High Court)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** **WP(C).No. 31101 of 2016 (K) ----------------------------** ## **PETITIONER(S):** **-------------** **1. DR. ARUN THOMAS, AGED 28 YEARS, SON OF THOMAS PAUL, THEJUS, 44/2620A, ASHOKA ROAD, KALOOR, KOCHI-682 017.** **2. DR. VISHNU MOHAN M., AGED 30 YEARS, SON OF MURUKESAN V.L., DHANDAPANI NIVAS, KAMMANTHARA, VADAKKENCHERRY P.O., PALAKKAD -678 683.** **3. DR.G. PRABU, AGED 27 YEARS, SON OF D. GOPALAKRISHNAN, 41/21, THIRUPPUR KUMARAN STREET, GANDHINAGAR, ARAKKONAM-631003.** **4. DR. G. SHANMUGAM, AGED 30 YEARS, SON OF K.R.GURUSAMY, 21/40, SATHY KN PALAYAM ROAD, CHINNA KODIVERY, GOBICHETTIAPALAYAM TALUK, ERODE DISTRICT-638 503.** **5. DR. NEHA RAMSINGHANI, AGED 29 YEARS, DAUGHTER OF ATMARAM, RAMSINGHANI, 80 BRAJESHWARI EXTENSION, NEAR CHOUHAN NAGAR, PIPLIHANA CHOURAHA, RING ROAD, BICHOLI MAIDANA, INDORE-452 001.** **6. DR. PRAKRUTHI N., AGED 29 YEARS, DAUGHTER OF NARAYANA SWAMY S., NO.612, 11TH MAIN D BLOCK, JP NAGAR, MYSORE-670 008.** **BY ADVS.SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY** **msv/** **-2-** **-2-** **WP(C).No. 31101 of 2016 (K) ----------------------------** ## **RESPONDENT(S):** ## **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM-695 001.** **3. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, MEDICAL COLLEGE P.O., KOZHIKODE -673 008.** **4. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, MULANKUNNATHUKAVU, THRISSUR -680 596.** **5. THE DIRECTOR GENERAL OF HEALTH SERVICES, MOULANA AZAD ROAD, NIRMAL BHAVAN, NEW DELHI-110 011.** - **R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.M.N.MANMADAN, CGC** - **R1-R4 BY GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016 ALONG WITH WPC. 31690/2016, THE COURT ON 18-11-2016, DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 31101 of 2016 (K) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF PROSPECTUS/INFORMATION BULLETIN FOR NATIONAL ELIGIBILITY CUM ENTRANCE TEST (POST GRADUATE) FOR ADMISSION FOR MD/MS/POST GRADUATE DIPLOMA COURSES, 2013 ADMISSION SESSION ISSUED BY THE NATIONAL BOARD OF EXAMINATIONS NEW DELHI. EXHIBIT P2 TRUE COPY OF ADMISSION LETTER ISSUED TO THE 1ST PETITIONER. EXHIBIT P3 TRUE COPY OF ORDER NO.B9/600/2016/DME(5) DATED 26.7.2016 ISSUED BY THE 2ND RESPONDENT TO PETITIONERS NOS.1 TO 5. EXHIBIT P4 TRUE COPY OF ORDER NO.E4-10006/2015/MCTCR DATED 28.1.2016 ISSUED BY THE 4TH RESPONDENT TO 6TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER NO.Z-28014/68/2015-MEC DATED 28.7.2015 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER NO.Z-28014/15/2016-MEC DATED 9.3.2016 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES 2013 ISSUED BY 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF POSSESSION CERTIFICATE NO.B5-870/2016/MCTCR DATED 19.4.2016 ISSUED BY THE 4TH RESPONDENT TO 6TH PETITIONER. EXHIBIT P9 TRUE COPY OF LETTER NO.29054/S2/08/H & W DATED 25.7.2008 ISSUED BY THE 1ST RESPONDENT TO RESPONDENTS NOS.3 AND 4. EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 18.6.2014 IN WP(C) NOS.15731/ TO 15743 OF 2014 OF THE MADRAS HIGH COURT. EXHIBIT P11 TRUE COPY OF ORDER DATED 16.11.2010 IN WP(C) NO.34443 OF 2010 PASSED BY THIS HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS -----------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **SHAJI P. CHALY, J.** ## **------------------------------------------W.P.(C)Nos.31101 & 31690 of 2016 ------------------------------------------Dated this the 18[th] day of November, 2016** ## **J U D G M E N T -------------------** The captioned writ petitions are materially connected and therefore, I heard them together and propose to pass a common judgment. Separate narration of facts is not required, since the question to be resolved is similar. Facts and Exhibits discernible from W.P.(C) No.31101/2016 are narrated hereunder for disposal of the writ petitions. 2. Petitioners are post graduates in medicine who have successfully completed post graduate course from Government Medical College, Kozhikode and Thrissur. Petitioners have secured admission to the post graduate course against 50% seats reserved under 'All India Quota” to which selection and allotment is conducted by the 5[th] respondent. On, being selected for admission, granted allotment to the Government Colleges by the 5[th] respondent, on the petitioners securing qualifications in W.P.(C)Nos.31101 & 31690 of 2016 2 the National Eligibility cum Entrance Test (Post Graduate) conducted by National Board of Examinations, New Delhi and in terms of Ext.P1 Prospects/Information Bulletin containing the rules and regulations issued by Government of India and 5[th] respondent for such admissions. 3. As per Ext.P1 prospects and rules thereunder, governing admission of the petitioners to the post graduate course, under 'All India Quota', petitioners are not obliged or required to do compulsory service or execute any bond in that regard. Pursuant to such admission, petitioners duly joined the post graduate course in medicine and they have successfully completed course thereof during August/September 2016 and January 2016, respectively. 4. While so, now, respondents 2 to 4 are insisting the petitioners to compulsorily report and join for duty as Senior Residents in the Government Medical College, Manjeri and Thrissur, under the pretext of completing one year compulsory service as bonded obligation. Exts.P3 W.P.(C)Nos.31101 & 31690 of 2016 3 and P4 orders are issued to petitioners in that regard. According to the petitioners, insistence for compulsory service is made on petitioners, ignoring Exts.P5 and P6 clarifications of 5[th] respondent to the effect that, bonded compulsory service is not applicable to candidates selected under 'All India Quota' in terms of the order dated 27.12.2001 in IA Nos.9-13 in Civil Appeal No.1944 of 1993 of the Apex Court and on the erroneous assumption that candidates like petitioners admitted under 'All India Quota' are governed by Ext.P7 prospects for admission effected under 'State Quota'. Therefore, petitioners are prejudiced being exposed to disciplinary action, threat of being not released their certificates, testimonials and other documents and also threat of being not allowed to get their post graduate qualifications registered with the Medical Council. It is in this background seeking appropriate directions, these writ petitions are filed. 5. The contentions in the other writ petition are similar, and the petitioners therein have completed the W.P.(C)Nos.31101 & 31690 of 2016 4 course from Government Medical College, Thiruvananthapuram. 6. Respondents have filed a counter affidavit in W.P.(C) No.31690/2016 with an adoption memo to adopt the counter in the other writ petition also. According to the 2[nd] respondent, even though, petitioners got admission under 'All India Service Quota' in the state, they are studying at the expense of the public. Government is spending huge sum of public money for the education of these candidates irrespective of the fact, they took admission under State Quota or all India Quota. Therefore, one year bonded service is not a punishment to them. Government has also introduced the Residency Programme with an intention to transform a mature student to a totally competent and confident consultant. The said programme is considered as patient centered and responsibility based one, which will improve the commitment of the student towards patient care as they will be looked upon as responsible staff member of their respective departments. W.P.(C)Nos.31101 & 31690 of 2016 5 7. It is also stated petitioners have studied utilising the funds from the state exchequer and as a welfare state, State Government have the right to ensure proper utility of the fund spent by it and its proper returns by way of bonded obligations. It is also submitted that, a student who secured admission in the Government Medical College, Thiruvananthapuram under 'All India Quota' during the year 2012-2015 was issued with a communication under the RTI Act by the Director General of the Health Services, wherein, it is clearly stated, prescribing of stipend/fees structure/ course duration/bond amount/rendering of service in rural/tribal area/other condition etc. if any, shall be as per rules and regulations of the respective State, College or University concerned. It is also stated by the Director General of Health Services that, candidates should well examine information regarding stipend/fee/ duration/bond etc. before opting any seat. If the candidates did require any additional information they were free and at liberty to contact the college/institution on telephone. It is also W.P.(C)Nos.31101 & 31690 of 2016 6 stated, as per the reply from the Director General of Health Services, retaining the original documents and releasing of the same, shall be as per the rules and regulation of the respective State/ College/University concerned. That apart it is stated, the Director General of Health Services has role to play in the matter after allotment of seat or college. Therefore, contention of the petitioner that, they are not bound by the state condition of eligibility criteria laid down by the respondents on the ground, they are sponsored by the Director General of Health Services, Ministry of Health and Family Welfare, Government of India, deserves no merit. That apart it is submitted, as per the reply submitted by the Director General of Health Services it is clear, prospects issued by the State Government is the rule of the selection of the state. Candidates by executing a bond for serving the State Government as prescribed in the prospects are not entitled to challenge the same after the completion of the course, and attitude of the petitioners, amounts to seeking change of rule, in the middle of the game, and W.P.(C)Nos.31101 & 31690 of 2016 7 therefore it is impermissible. 8. That apart another contention raised by the respondents is that, petitioners took admission in the year 2013 under 'All India Quota' at Government Medical College, Thiruvananthapuram. As per clause XIII (1) (c) of the PG medical prospects of 2013 all the non service quota candidates admitted to medical post graduate courses shall serve the Government in health services or medical education service as decided by the Government of Kerala for a period not less than one year, after the completion of the course, on such remuneration and terms and conditions decided by the Government. All the candidates are bound to execute the bond in that regard. It is also submitted, clause XIII(2) (d) (II) states, if candidates other than service quota, violate the terms mentioned in clause XIII (1) (c) 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. It is also stated a sum of Rs.20,00,000/- will be levied as liquidated damages in W.P.(C)Nos.31101 & 31690 of 2016 8 addition to the stipend or salary drawn during the period of the course and the amount spent by the Government for their studies with interest as fixed by the Government. 9. The period of service is also mentioned in the PG medical course prospectus 2013. That apart it is contented, as per clause XIII (2) (g) of the PG medical prospectus 2013 the certificates submitted in the colleges at the time of admission will be released only after the completion of the compulsory bonded service or in the case of bond violation, liquidated damages are paid. That apart clause XIII (2) (e) stipulates that no admission shall be valid without getting the bond executed at the time of joining or within 7 days from the date of admission at the discretion of the principal. Any lapses in that regard will be treated as liability of the principal concerned. So it is definite, all the candidates taking admission in the State of Kerala are well aware of the stipulations in the prospectus, especially, the provisions discussed above. It is also submitted, since the petitioners have accepted the bond they are bound to carry out the obligations W.P.(C)Nos.31101 & 31690 of 2016 9 undertaken thereunder. If the petitioners were not agreeable for the bond conditions, they could have opted out either before the admission or surrendered their seat after joining the course. Having competed the course and passed out successfully, petitioner is not at liberty to turn around and say that the bond conditions are not acceptable to the petitioners. If the relief sought for by the petitioner in this writ petition is granted, it will adversely affect day-to-day function of the hospital and recognition of undergraduate and post graduate courses in various medical colleges. As per MCI norms, a requisite number of senior residents are required for fulfilling the requirements for recognition of Under Graduate and Post Graduate Courses and dearth of Senior Residents will affect the recognition of Under Graduate and PG Medical Courses, thereby upsetting the very fabric of medical education. Therefore, it is contented petitioners are not entitled to get any relief in the writ petition. 10. Heard learned counsel for the petitioners, W.P.(C)Nos.31101 & 31690 of 2016 10 learned Special Government Pleader and counsel appearing for the 5[th] respondent and perused the documents on record and pleadings put forth by the respective parties. 11. The question to be decided in these case is whether, petitioners are bound by the stipulations contained under the prospectus issued by the State Government in respect of the Post Graduate admission in the State of Kerala. The contentions raised by the petitioners in respect of securing admission in the 'All India Quota' earmarked to the State is not under dispute. Execution of the bond by the petitioners, in terms of stipulations contained in the State prospectus is also not under dispute. 12. However, learned counsel for the petitioners submit that, since the petitioners have secured admission under 'All India Quota' they are bound only by the terms and conditions stipulated in Ext.P1 issued by the National Board of Examinations. In that regard, learned counsel for the petitioners have invited my attention to the order W.P.(C)Nos.31101 & 31690 of 2016 11 of the Apex Court in _**ANAND S BIJI v. STATE OF KERALA AND OTHERS 2002 I SLR 314.**_ However, I find that, it is only an interim order passed by the Apex Court during the pendency of the Civil appeals, the ultimate result of the said Civil appeals is not known. Therefore, interim order as such is not binding and cannot be termed as a binding precedent. Yet another order pointed out by the learned counsel for the petitioners are in **HARSH PRATAP SISODIA v. UNION OF INDIA AND OTHERS (1999) 2 SCC 575 ,** wherein the question of 15% All India Quota stipulated by rule 4.4 of CBSE information bulletin of 1998 was considered and held that, the same does not show that, there is any such requirement as was being raised by the Dean of the Medical Colleges. However, from the facts and circumstance, I find that, same was in respect of admission to 15% 'All India Quota' earmarked and denial of the same was found to be illegal on the basis of certain conditions prescribed by the State. The facts and circumstance show that, the said order will not apply to W.P.(C)Nos.31101 & 31690 of 2016 12 the facts and circumstances of the cases, under consideration. Learned counsel also pointed out, the common order of the Madras High Court in **Dr.S. Rajesh** **v. State of Tamil Nadu (2009) 1 MLJ 1103** , wherein, paragraph 12, the question with respect to securing bonds from the candidates selected under 'All India Quota' was considered. It was held therein that, a person accepting the conditions contained in the norms for selection can challenge the said conditions after participating in selection, taking note of the judgment of the Apex Court in **Union of India and Another v. N.Chandrasekharan and Others (1998) 3 SCC 694** . Therefore, it is the contention of the learned counsel, securing bonds from the petitioners is an illegal act on the part of the State of Government and since, the entire action of the State Government is illegal and arbitrary, petitioners are entitled as right to challenge the same even though, they have undertaken certain obligations as per the bond. 13. Per contra, learned Special Government Pleader W.P.(C)Nos.31101 & 31690 of 2016 13 invited my attention to clause 2.2 of the general instructions, terms and conditions of Ext.P1. Clause 2.2 reads as follows:- “ _2.2 Applicant may kindly note that appearance in NEET-PG does not confer any automatic rights to score a Post Graduate MD/MS/Post Diploma seat. The selection and admission to Postgraduate seats in any medical institutions recognised for running MD/MS/Post Graduate Diploma courses as per Indian Medical Council Act, 1956 is subject to fulfilling the admission criteria, eligibility, medical fitness and such criteria as may be prescribed by the respective universities, medical institutions, Medical Council of India, State/Central Government.”_ 14. On a reading of aforesaid clause it is evident, the admission criteria provided thereunder is subject to fulfilling the admission criteria, eligibility, medical fitness and such criteria as may be prescribed by respective universities or Medical institutions, Medical Council of India, State/Central Government. Therefore, in my considered opinion, petitioners were very well aware while securing admissions in the 50% Quota, within State of Kerala that, there is every likelihood of students W.P.(C)Nos.31101 & 31690 of 2016 14 discharging the criteria fixed by the State Government. It was thereupon, State Government as per Ext.P7 notification issued for Post Graduate admission 2013, directed petitioners to enter into a bond as per the terms and conditions stipulated thereunder. Viewed in that manner, it cannot be said that, the State Government have unilaterally fixed the stipulations of the bonded obligations, but the same was done by virtue of the power and liberty conferred upon the State Government as per Ext.P1 prospectus issued by the National board of examinations. That apart the provisions of Ext.P7 discussed above, will clearly show, if the authorities are not securing necessary documents as contemplated thereunder, they are likely to be imposed with severe consequences. Therefore on a reading of the provisions of Exts.P1 and P7 prospectus issued by the National authority as well as the State Government, I have no hesitation to hold that, petitioners who have entered into bond as per the stipulations contained under the prospectus are bound to follow the obligations undertaken W.P.(C)Nos.31101 & 31690 of 2016 15 thereunder. 15. In the judgment of the Madras High Court cited supra, I have not come across any discussion in respect of the stipulations contained in the prospectus of the National board of examinations, obligating the petitioners, to fulfill the conditions undertaken in favour of the State Government. Moreover, I am of the considered opinion, since the petitioners were aware of their liability they are bound to discharge and fulfill the parameters and stipulations undertaken as per the bonded obligations with the State Government. Therefore, after the completion of the course successfully, petitioners are not entitled to turn around and contend they will not abide by any bond conditions. Petitioners were very well aware from Exts.P1 and P7 prospectus, they are bound by the rules and regulations provided thereunder. Apart from undertaking to serve the state during the bonded period, agreed for return of certificates and documents after the service as per the bond, in accordance with clause XIII (2) (g) of Ext.P7 prospectus. Such a stipulation in the W.P.(C)Nos.31101 & 31690 of 2016 16 prospectus was not available in the case considered by the Madras High Court supra. So far as the admission to P.G. course is concerned, by now, it is well settled, prospectus is the rule of selection and those who secured admission are bound by its terms. In short, the stipulations contained under a prospectus have the force of law and it is most inappropriate, for this Court to make any modifications invoking the power under Article 226 of the Constitution of India. 16. Moreover, it is not in dispute that, State Government is spending money from its Exchequer in order to ensure successful completion of the Post Graduate course, by the petitioners. One cannot also become unmindful of the stipulations of the Medical Council of India, in order to continue the recognition of various disciplines in the medical institutions situated within the State, and the services of the petitioners are very essential and pivotal to satisfy the requirement of Medical Council of India also. Taking into account all these aspects and W.P.(C)Nos.31101 & 31690 of 2016 17 assimilating the proposition of law pointed out by the petitioners, I am of the considered opinion, petitioners have not made out any case of illegality or arbitrariness on the part of the respondents, thus enabling this Court to interfere with the actions of the State Government. Sequel to the above discussion is, writ petitions fail and accordingly, they are dismissed. Sd/- **SHAJI P. CHALY, JUDGE.** rmm/14/11/2016 _[ True copy]_ _P.A. to Judge_