Kerala High Court
Shireen M.T vs State Of Kerala on 19 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938
WP(C).No. 1275 of 2017 (H)
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PETITIONER(S):
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1. SHIREEN M.T.,
AGED 25 YEARS, D/O.KUNHI MOIDEENKUTTY M.T.,
MUNDATHODE HOUSE, NADAKKAVU, TANUR P.O.,
MALAPPURAM -676 302.
2. NIMA T.,
AGED 25 YEARS, D/O.MOHANDAS T.T.,
THENGUMTHOTTATHIL HOUSE, MANGATTIRI P.O.,
TIRUR, MALAPPURAM -676 105.
3. AHAMMED SADIK C.,
AGED 25 YEARS, S/O.SAIDALAVI HAJI CHOKLY,
MUKKOOTTILCHOKLY HOUSE, VARAPPARA,
PARAMBIL PEEDIKA PO, MALAPPURAM-676 317.
4. AHAMMED THAMEEM M.P.,
AGED 25 YEARS, S/O.M.P.HUSSAIN, JASMINE DALE HOUSE,
PARAPPANPOYIL P.O, THAMARASSERY, KOZHIKODE-673 573.
5. ANTO JOSE,
AGED 25 YEARS, S/O.JOSE T.I.,
THALAKKOTTUR HOUSE, NHAMANGHAT P.O.,
THRISSUR -679 563.
6. ANUMOL JAI JOSEPH,
AGED 25 YEARS, D/O.JOSEPH M.T.,
MADATHIPURATH HOUSE, KOOMANTHODE P.O,
KARIKKOTTAKARY, KANNUR -670 704.
7. ASHNA PULICKAL ASGAR,
AGED 25 YEARS, D/O.ASGAR P.A., 'SURABHI',
KUTTAYI P.O., ASHANPPADI, TIRUR,
MALAPPURAM -676 562.
8. CINDA S. UKKEN,
AGED 25 YEARS, D/O.SHAJI J. UKKEN, UKKEN HOUSE,
VELLIKULAM ROAD, CHALAKKUDY P.O., THRISSUR-680 307.
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9. SHARANYA S.,
AGED 24 YEARS, D/O.SASIDHARAN T.,
PATTATH HOUSE, THIRUVANGAD,
THALASSERY -670 103.
10. FARSEENA M.P.,
AGED 24 YEARS, D/O.BANGALATH MARIYUMMA,
POOVATHIKANDI HOUSE, PATHANAPURAM,
AREACODE, MALAPPURAM -673 639.
11. FEMITHA K.P.,
AGED 25 YEARS, D/O.ABOOBACKER,
KALLARIPARAMBATH HOUSE, NOCHAD P.O,
CALICUT - 673 614.
12. FENAZ A.,
AGED 25 YEARS, S/O.ABDUL FATHAH, FENAZ COTTAGE,
KARAMCODE P.O, KOLLAM - 691 579.
13. HASHMI S.,
AGED 25 YEARS, D/O.SIRAJUDDEEN S.,
THOPPIL HOUSE, PALLICKAL P.O.,
KOTTARAKARA -691 566.
14. JAMSHED AHAMAD ANSARI,
AGED 26 YEARS, S/O.AZIMUDDIN ANSARI,
BAITHUL HAJARA HOUSE, KUTHUKALLE,
KALLAI PO, KOZHIKODE -673 003.
15. JAYAVIDYA M.S.,
AGED 25 YEARS, D/O.SANJEEV B.S.,
'PRANAVAM', ANAKUZHIKARA,
KUTTIKATOOR PO, CALICUT -673 008.
16. JESLIN MUHAMMED,
AGED 25 YEARS, PATHARIMATTATHIL HOUSE,
P.O. PAIPRA, MUVATTUPUZHA, ERNAKULAM-686 673.
17. LUBAIBA VAYAL PEEDEYAKKAL,
AGED 25 YEARS, D/O.V.P.ABOOBACKER,
V.P. VILLA, VALLIKUNNU P.O.,
KADALUNDI NAGARAM, MALAPPURAM-673 314.
18. LULUA SAFAR,
AGED 23 YEARS, D/O.SAFARULLA E., P.V.HOUSE,
M.C. PARAMB, P.O. PARAPPIL, FRANCIS ROAD,
CALICUT -676 301.
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19. MOHAMMED MUSTHAFA M.C.,
AGED 27 YEARS, D/O.BEERAN HAJI,
MATTUMMAL HOUSE, CHILAVIL MANNARAKKAL,
VAILATHUR PO, ADRESSERY, MALAPPURAM-676106
20. MOHAMMED IRSHAD P.M.,
AGED 25 YEARS, S/O.MOHAMMED ASHRAF P.M.,
PLAMOOTIL HOUSE, NEERKUNNAM, VANDANAM P.O,
ALAPPUZHA -688 005.
21. MUHSINA K.M.,
AGED 26 YEARS, D/O.MUHAMMEDALI K.M.,
MEKKATT HOUSE, KURUPPATH, KONDOTTY PO,
MALAPPURAM -673 638.
22. NASREEN K.,
AGED 25 YEARS, D/O.SAINUDEEN K.,
ANUGRAHA, KATTUMUNDA EAST, NADUVATH P.O,
MALAPPURAM -679 328.
23. NASREEN T.,
AGED 25 YEARS, D/O.ABDULLA T.,
THACHAMPATTA HOUSE, VETTATHUR P.O,
VIA. MELATTUR, MALAPPURAM -679 326.
24. SABITH E.K.,
AGED 25 YEARS, S/O.MOOSA, EZHUKALARIYIL HOUSE,
PARAPPANPOYIL POST, THAMARASSERY,
KOZHIKODE - 673 573.
25. SAHLA A.S.,
AGED 25 YEARS, D/O.ABDUL LATHEEF P.P.,
ERIYAT BISMI HOUSE, VILLAGE OFFICE ROAD,
MORAYUR PO, MALAPPURAM -673 642.
26. SAHLA HASSAN,
AGED 24 YEARS, D/O.HASSAN T.M., HOUSE NO.5,
GREEN LINE VILLAS, K.T.GOPALAN ROAD,
KOTTOOLI P.O, KOZHIKODE 673 016.
27. SAID BAKRY K.V.,
AGED 25 YEARS, S/O.LATE K.V.SAIDALAVI HAJI,
KULANGARA VEETIL HOUSE, PO, PUDUPPALLI,
MALAPPURAM -676 102.
28. SANJANA K.I.
AGED 24 YEARS, D/O.K.K. ISMAIL, KODENCHERY HOUSE,
P.O. PERINGOTTUKARA, THRISSUR -680 565.
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29. SHAFEEK M.,
AGED 26 YEARS, S/O.UMMER M.,
MANGALATH HOUSE, THIRUVIZHAMKUNNU P.O.,
ALANALLUR, PALAKKAD -678 601.
30. SHARI S. KUMAR,
AGED 26 YEARS, D/O.SOBHANA T., HOLY BHAVAN,
NEAR BLOCK OFFICE, KAZHAKUTTOM P.O.,
THIRUVANANTHAPURAM-695 582.
31. THEERTHA RAJESH,
AGED 24 YEARS, D/O.K.R.RAJESH KUMAR,
KUREEKATTIL HOUSE, NARANGANAM WEST P.O.,
KOZHENCHERRY, PATHANAMTHITTA -689 642.
32. YASMINE M.M.,
AGED 25 YEARS, D/O.M.A.MUHAMMED IBRAHIM,
MURUKUDI HOUSE, MOOLANKAVE P.O.,
SULTHAN BATHERY, WAYANAD -673 592.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.MANOJ RAMASWAMY
SMT.SANJANA R.NAIR
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. KERALA UNIVERSITY OF HEALTH SCIENCES,
THRISSUR-680 596, REPRESENTED BY
ITS REGISTRAR.
3. THE PRINCIPAL, MES MEDICAL COLLEGE,
PERINTHALMANNA, MALAPARAMBA, PALACHODE P.O.,
KOLATHUR (VIA), MALAPPURAM DISTRICT-679 338.
R1 BY SENIOR GOVERNMENT PLEADER SMT.C.S.SHEEJA
R2 BY SRI.P.SREEKUMAR, SC
R3 BY ADV. SRI.BABU KARUKAPADATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01-02-2017 THE COURT ON 20-02-2017, DELIVERED THE
FOLLOWING:
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE ROTATING INTERNSHIP CERTIFICATE ISSUED BY
THE 3RD RESPONDENT COLLEGE TO 1ST PETITIONER
P2 TRUE COPY OF THE ROTATING INTERNSHIP CERTIFICATE ISSUED BY
THE 3RD RESPONDENT COLLEGE TO 30TH PETITIONER
P3 TRUE COPY OF THE PRACTITIONER IN MODERN MEDICINE WITH THE
TRAVANCORE COCHIN COUNCIL OF MODERN SCIENCE CERTIFICATE
ISSUED TO 1ST PETITIONER
P4 TRUE COPY OF THE PRACTITIONER IN MODERN MEDICINE WITH THE
TRAVANCORE COCHIN COUNCIL OF MODERN SCIENCE CERTIFICATE
ISSUED TO 32ND PETITIONER
P5 TRUE COPY OF THE BOND OF ONE OF THE PETITIONERS
P6 TRUE COPY OF THE PROSPECTUS (RELEVANT PORTION)
P7 TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)
NO.533/2008/H&FWD DTED 07.10.2008
P8 TRUE COPY OF THE ORDER NO.G.O.(RT)NO.2431/2010/H & FWD
DATED 19.06.2010
P9 TRUE COPY OF THE ORDER G.O(MS)NO.333/2012/H&FWD
DATED 08.10.2012 ISSUED BY THE 1ST RESPODNENT
P10 TRUE COPY OF THE LETTER ISSUED TO ONE OF THE PETITIONERS
P11 TRUE COPY OF THE ONE SUCH REPRESENTATION DATED 29.11.2016
FILED BY ONE OF THE PETITIONERS
RESPONDENT(S)' EXHIBITS
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EXT.R3(a): TRUE COPY OF THE AGREEMENT DTD.9.6.2010 ENTERED INTO
BY THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT
ASSOCIATION WITH THE GOVERNMENT.
//TRUE COPY//
P.S.TO JUDGE
Msv/
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.1275 of 2017
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Dated 20th February, 2017.
J U D G M E N T
Petitioners have undergone and completed MBBS Course in a private self financing medical college in the State. Their grievance in this writ petition concerns the refusal of the College in issuing certificates which are required for their future studies, such as, Transfer Certificate, Conduct Certificate, Attempt Certificate etc and in not returning their Xth and XIIth standard original certificates collected at the time admission.
2. The petitioners are students admitted for the course in the College under the Government quota from the merit list prepared by the Commissioner for Entrance Examinations in the academic year 2010-11. They have completed the course and the internship that followed the WPC 1275 of 2017 2 course during 2016. The prospectus published by the Commissioner for Entrance Examinations for admission to MBBS Course during the relevant year contained a provision to the effect that the students who successfully complete the MBBS Course from Medical Colleges in the State are liable to serve in rural areas on completion of the MBBS Course in accordance with the provisions contained in the orders issued by the Government from time to time. According to the petitioners, there is no requirement which makes it obligatory for the students who have undergone MBBS Course under the Government quota in private self financing medical colleges to serve in rural areas at present and the certificates, which they are entitled to on completion of the MBBS Course as also the original certificates which have been collected from them at the time of admission to the course, are withheld by the College on the ground that they have not fulfilled their obligation to serve in rural areas as per the terms of the prospectus. The petitioners, therefore, seek directions to the College to issue the certificates which they are entitled to on completion of their WPC 1275 of 2017 3 MBBS Course and to return their original certificates which have been collected at the time of their admission to the course.
3. A counter affidavit has been filed by the third respondent, the Principal of the College. It is stated in the counter affidavit that the College is a member of the Kerala Private Medical College Management Association; that 50% of the MBBS seats in the member colleges of the said Association are being filled up from the merit list prepared by the Commissioner for Entrance Examinations in terms of an agreement entered into by the State Government with the Association on 9.6.2010; that the State Government have, among others, permitted the member colleges of the Association to get service bonds from the students admitted under the Government quota in their respective colleges for a period not exceeding one year; that the petitioners along with their parents have executed service agreements/bonds in terms of the orders issued by the Government in this connection; that the petitioners have agreed to pay a sum of Rs.13 lakhs each, less the amount of tuition fee paid by them, by way of WPC 1275 of 2017 4 liquidated damages for breach the said service agreements/bonds; that the petitioners have, in terms of the service agreements/bonds executed by them, authorised and permitted the college to withhold their certificates until they fulfil their obligation under the service agreements/bonds or till they pay the amounts agreed to be paid in lieu of the same; that the petitioners have neither fulfilled their obligations under the service agreements/bonds executed by them nor paid the amount liable to be paid in terms of the agreements/bonds and that the certificates claimed by the petitioners are not issued/returned for the said reason.
4. Heard the learned Senior Counsel for the petitioners, the learned Government Pleader as also the learned counsel for the third respondent.
5. The specific case of the petitioners is that they were not liable to serve the college on completion of their course and that therefore, their certificates cannot be withheld on that basis. I shall, therefore, first deal with the question as to whether the petitioners were liable to serve the college on WPC 1275 of 2017 5 completion of their course. The fact that the petitioners have been admitted in the College for the course in terms of the agreement entered into by the Government with the Kerala Private Medical College Management Association, is not in dispute. Ext.R3(a) is the agreement entered into between the Government and the Kerala Private Medical College Management Association. Clause 14 of Ext.R3(a) agreement reads thus :
"The Management will be free to execute appropriate Service bond from the students admitted under Government quota, except SC/ST students, for a period not exceeding one year, on similar terms as the Bond executed by the students admitted in Government medical colleges."
Ext.P8 is the order issued by the Government in implementation of Ext.R3(a) agreement. Ext.P8 provides that allotment of students for MBBS course in private medical colleges will be subject to the terms and conditions provided therein. Condition No.14 contained in Ext.P8 reads thus :
"The Management will be free to execute appropriate Service bond from the students admitted under Government quota, WPC 1275 of 2017 6 except SC/ST students, for a period not exceeding one year, on similar terms as the Bond executed by the students admitted in Government medical colleges."
Ext.P5 is the agreement executed by the first petitioner and her parents with the College on 22.9.2010 in accordance with the terms of Ext.P8 order of the Government. Identical agreements have been executed by other petitioners as well. Clauses 4, 8, 9 and 10 of Ext.P5 agreement read thus :
4. As the student is allowed to pursue the MBBS course in the Medical College during the period of 2010-2015 on a heavily subsidised fee, the student will be legally bound to serve the Medical College and the student hereby agrees and undertakes to serve the MES Medical College or any other institution or Rural or Urban Centres under the MES Medical College at the discretion of decision of the MES Medical College Management in the capacity as Tutor/Resident/Medical Officer or equivalent post for a period of 12 months after the successful completion of the Compulsory Rotating Residential Internship.
8. The certificates submitted by the candidate at the time of admission will be released to the candidate only after the successful completion of one year compulsory employment or on payment of the compensation as prescribed below. WPC 1275 of 2017 7
9. The Student hereby undertake and agree to pay a sum of Rs.13 lakhs, reducing the actual amount of tuition fee already paid by the student for the whole academic course.
10. If the candidate does not want to be bound for compulsory employment the student shall pay the amount specified above as compensation to the Medical College Management and if the Student failed to do so the Parent/Guardian named as (2) in this agreement shall be liable to pay the same and if not done so it shall be recovered from him of his properties movable or immovable."
It is thus clear that the Government have permitted the private self financing medical colleges in the State to obtain bonds from the students admitted in their respective colleges under the Government quota to serve the college for a period of one year in terms of Ext P8 order in consideration of the college admitting students from the merit list prepared by the Commissioner for Entrance Examinations at a concessional tuition fees. The petitioners have taken admission in the college accepting the aforesaid term incorporated by the Government in Ext. P8 order and also by executing Ext P5 bond/agreement. As such, the petitioners cannot be heard contend that they WPC 1275 of 2017 8 were not liable to serve the college for one year on completion of their course. It appears that the petitioners are under a misconception. The one year compulsory service provided for in Ext.P8 order of the Government and the one year compulsory rural service provided for in Ext.P6 prospectus are not one and the same. The case of the petitioners that they were not liable to serve the college for a period of one year on completion of their course is, therefore, rejected.
6. As noted above, petitioners seek directions to the college to issue certificates which they are entitled on completion of their MBBS Course and to return their original certificates which have been collected at the time of their admission in the College. The next question, therefore, is whether the college can withhold the certificates of the petitioners for non-fulfilment of their bonded obligation to serve the college. As noted above, Ext.P5 and similar agreements entered into by the petitioners with the College contain a specific provision to the effect that the certificates submitted by them at the time of admission will be released only after WPC 1275 of 2017 9 successful completion of the one year compulsory employment or on payment of the compensation prescribed therein. The College places reliance on the said clause in the agreement to justify their conduct in withholding the certificates of the petitioners. In this context, it is relevant to note that in terms of Ext.R3(a) agreement and Ext.P8 order, the Government have only permitted the College to obtain service bonds from the students admitted under Government quota making it obligatory for the students to work in the College for a period of one year after the completion of their course. The relevant clauses contained in Ext.R3(a) agreement as also in Ext.P8 order indicate that as per the said clauses, the College was permitted only to obtain a service bond from the students on similar terms as the service bond executed by the students admitted in Government Medical Colleges. A specimen of the service bond to be executed by the students admitted in the Government Medical Colleges as also private Self Financing Medical Colleges was part of the prospectus published by the Commissioner for Entrance Examinations for the concerned WPC 1275 of 2017 10 year. The said specimen of the service bond was made available to the Court at the time of hearing. The specimen of the service bond which was made available to the Court does not contain any provision similar to clause (8) of Ext.P5 agreement, which authorises the College to withhold the certificates of the candidates, on any ground whatsoever. It is, therefore, clear that Ext.P5 is not an agreement/bond obtained by the College from the students in terms of Ext.R3(a) agreement and Ext.P8 order of the Government. The College, in the circumstances, cannot be heard to contend that they are authorised/permitted by the Government to withhold the certificates of the students until the students pay the compensation in lieu of the service agreed to be performed. True, the petitioners do not dispute the execution of Ext.P5 and similar agreements. It is beyond dispute that the petitioners have not approached the College for admission. On the other hand, they have been admitted in the College based on the allotment made by the Commissioner for Entrance Examinations in terms of R3(a) agreement and Ext.P8 order of WPC 1275 of 2017 11 the Government. There is no dispute to the fact that the petitioners would not have been admitted in the College, but for Ext.R3(a) agreement and Ext.P8 order. In other words, there was no occasion or need for the petitioners to enter into an independent contract with the College in connection with their admission. I have, therefore, no hesitation to hold that the condition in Ext.P5 and similar agreements executed by the petitioners with the College authorising/permitting the College to withhold their certificates is void for want of consideration and hence, unenforceable.
7. The case of the College is that since the petitioners have not fulfilled their bonded obligation, the College is entitled to withhold their certificates. The petitioners do not admit their liability. In other words, the certificates of the petitioners are withheld by the College for enforcing a disputed liability. Even assuming that the agreement/bond executed by the petitioners in favour of the College authorising the College to withhold their certificates is not void for want of consideration, the question arises is whether the certificates of WPC 1275 of 2017 12 the petitioners can be withheld for enforcing a disputed liability. This question assumes importance in the light of the large number of similar litigations instituted before this Court in the recent past. A bond is only an instrument by which a person obliges or binds himself to another for payment of a sum of money or in the performance of any other act. It is fundamental that if a person does not fulfill the bonded obligation, he is liable to pay the amount agreed upon and if he does not pay the amount agreed upon, in a country where rule of law prevails, the payment has to be enforced through a court of law. It cannot be said that non-payment of the amounts covered by the bond will always be without any basis. In some cases, it may be without any basis, but in some others, it may be due to some reason which the person concerned believes to be a justifiable reason for non payment. The sustainability or otherwise of the reason, on the basis of which the liability under the bond is denied, has to be examined by the court through the process of which the payment is to be enforced. If the practice of withholding the documents as a means to realise the WPC 1275 of 2017 13 disputed amounts is permitted to be adopted, the person affected would be compelled to forgo the defences, if any, available to him. Further, education has always been, and continues to be one of the most important needs of mankind. Every citizen has a right to education and State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The recent change in the social and economic fabric of the country has, however, created a situation where it is inevitable for the State to permit private educational institutions to meet the requirements in the field of education. Education is essentially a charitable activity. As such, even when private bodies establish educational institutions, the object shall be charity and not profit. Of course, reasonable revenue surplus can be generated by the institutions for the development of education and expansion of the institutions. Certificates of education/qualification are very important documents as far as students are concerned. Non availability of the certificates establishing educational qualifications may result in deleterious consequences as far as WPC 1275 of 2017 14 students are concerned, for, the same are the first and foremost documents insisted for employment and higher studies. It is trite that whatever tends to injustice of operation, restraint of legal rights, whatever tends to the obstruction of justice and whatever is against the morals can be said to be against public policy. In other words, matters which concern the public good and the public interest connotes the public policy. [See P.Rathinam v. Union of India (1994)3 SCC 394]. It is also trite that the principles governing public policy are capable, on proper occasion, of expansion or modification and the court in a given case is empowered to declare a practice as opposed to public policy in consonance with public conscience and in keeping with public good and public interest. [See Central Inland Water Transport Corporation v. Brojo Nath Ganguly [(1986) 3 SCC 156] and State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77]. The agreements obtained by the College from the petitioners authorising them to withhold the certificates of the petitioners for payment of the amounts covered by the bonds, if any, executed by the WPC 1275 of 2017 15 petitioners, cannot be accepted as an approved social conduct and the same, in that sense, is unethical. Further, agreements of that nature are against public good and public interest as well. In the circumstances, even assuming that the agreement/bond executed by the petitioners in favour of the College authorising them to withhold their certificates is not void for want of consideration, the same is void as opposed to public policy, in the light of Section 23 of the Indian Contract Act.
8. In the result, the writ petition is allowed and the third respondent is directed to issue to the petitioners, all the certificates that are issued to similarly placed candidates who have completed MBBS Course from the College. All the original certificates of the petitioners collected at the time of their admission shall also be released to them. The aforesaid directions shall be complied with within two weeks from the date of receipt of a copy of this judgment. It is made clear that this judgment will not preclude the College from instituting appropriate civil suits against the petitioners for realisation of WPC 1275 of 2017 16 the amounts due to the College in terms of the bond executed by the petitioners.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)