Madras High Court
Dr.R.Lakshmi Malar vs The Director Of Medical Education on 20 June, 2014
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.6.2014
CORAM:
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
W.P.No.14593 of 2014
Dr.R.Lakshmi Malar ... Petitioner
Vs.
1. The Director of Medical Education,
Directorate of Medical Education,
Kilpauk, Chennai-10.
2. The Dean,
Madras Medical College,
Chennai .. Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of Mandamus, directing the respondents to return all original certificates as per her representation dated 29.4.2014.
For Petitioners : Mr.S.S.Karthikeyan
For Respondents : Mr.N.Sakthivel, G.A
O R D E R
The writ petition is filed by the Doctor, who got admission under the State quota to pursue M.D. Courses. They have also completed her course in May 2014 and her results were also published. The original M.B.B.S. Certificates, Community Certificates, Mark Sheets etc., of the petitioner are not returned by the Dean of the Madras Medical College and hence he has filed the present writ petition.
2. According to the petitioner, when he sought for return of all the original certificates, her request was rejected on the ground that the certificates are being retained for the petitioner to complete two years' Government service as per the bond executed by the petitioner at the time of her admission.
3. Learned counsel appearing for the petitioner submitted that the question involved in her case, "as to whethis the Medical Colleges can retain the original certificates after the students completed their courses and passed their examinations as lien for execution of bond condition", was already decided by this Court in W.P.Nos.12885 to 12887, 12900 to 12921, 13687, 13836, 17203 and 17425 of 2008 etc. batch and this Court has clearly held that the concerned Dean of the Medical Colleges cannot retain the certificates of the said candidates and if the candidates are not complying with the bond condition, it is open to the concerned Dean of the Medical Colleges to enforce the terms of the bond only in the manner known to law. Learned counsel for the petitioner also submitted that against one writ petition in W.P.No.17203 of 2008, Writ Appeal was preferred in W.A.No.1444 of 2008 before the Hon'ble Division Bench of this Court, which stood dismissed by the Hon'ble Division Bench of this Court vide order dated 11.11.2011, against which no further appeal was filed and all the candidates were issued certificates by the concerned Dean of the Medical Colleges.
4. Similarly, another batch of writ petitions in W.P.Nos.1052 to 1056 of 2013 were filed, wherein also this Court has held that the concerned Dean of the Medical Colleges cannot retain the certificates of the candidates and, if the candidates are not complying with the bond condition, it is open to the concerned Dean of the Medical Colleges to enforce the terms of the bond only in the manner known to law. As against the order passed in one writ petition in W.P.No.1052 of 2013, the Dean, Thanjavur Medical College has preferred writ appeal in W.A.No.2248 of 2013. By the judgment dated 09.12.2013, the Division Bench dismissed the said writ appeal, against which no further appeal was filed. Thus, the issue in the writ petition is also covered by the said judgments.
5. The learned Additional Government Pleader submitted that the issue raised in the writ petition was already decided in the earlier batch of cases and he further submitted that as against the order of this Court dated 20.11.2008 and 17.1.2013 respectively, which were confirmed in Writ Appeals in W.A.No.1444 of 2008 dated 11.11.2011 and W.A.No.2248 of 2013 dated 09.12.2013 respectively, no Special Leave Petitions were filed and the said orders were also implemented.
6. (i) In W.P.Nos.12885 to 12887, 12900 to 12921, 13687, 13836, 17203 and 17425 of 2008 etc. batch, dated 20.11.2009, Paragraph Nos.3 to 10 of the said judgment reads as follows:-
"3. It is the apprehension of the petitioners that these certificates are retained without any authority and also for the alleged non compliance of the conditions stipulated in the prospectus at the time of joining as well as the conditions of bond executed by each of the petitioners.
4. The relevant para in the prospectus in this regard is found in paragraph 61 of the prospectus and it reads as follows:-
"61. The candidates serving in Undertakings or Organisations of Government of Tamil Nadu or Government of India in Tamil Nadu should execute an undertaking and bond to serve the Government for a period of 15 years or upto superannuation, after the completion of the course, and to this effect they should produce a certificate from the Head of the Institution at the time of admission".
5. The consequences violation of bond by non-service candidates is provided under paragraph 68(d) and it reads as follows:-
"68(d) Non-Service candidates shall execute a bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) on admission to Postgraduate Diploma Courses and Rs.3,00,000/- (Rupees three lakhs only) for Postgraduate Degree courses/MDS/M.Ch., (Neuro Surgery) 5 Years Course of the 2005-2006 session undertaking that they shall serve the Government of Tamil Nadu for a period of not less than 3 years, if required. During the above period, they will be paid a salary on par with the fresh recruits of the Government of Tamil Nadu Medical Services and the Government of Tamil Nadu will requisition their services, if required, within a period of 2 years from the date of completion of their Postgraduate Degree/Diploma/MDS/M.Ch., (Neuro Surgery) 5 years Course. Two permanent Government servants shall be sureties. The prescribed form of bond will be available in the colleges at the time of admission. The bond will become infructuous if he/she serves the State Government of Tamil Nadu if required for minimum period of 3 years".
6. It is the stand of the petitioners that they are willing to serve the Government if required. At present when advertisements were given and applications were called for in various Governmental posts, the said posts were filled up after due selections. As of now thise is no work for the petitioners. In any event, even assuming that the prospectus has a role to play, such a condition is not incorporated in the undertaking given by the petitioners. A copy of the undertaking given by each of the petitioners is provided in the additional typed set. The following undertaking given by the petitioners may be usefully extracted below:= "Now, thisEFORE the obligor......... And 1........... surety and 2. ............... surety hereby agree that on the obligor .................... failing to serve within India (not necessarily in Government service) for a period of not less than fifteen years after completion of post Graduate Course, the said Obligor ....................or her/her legal heirs, executors and administrators shall forthwith pay to the Government on demand the said sum of Rs.3,00,000/- (Rupees three lakhs only) togethis with interest from the date of demand at the Government rate for the time being in force on Government loans".
7. In fact, what has been specified in the prospectus has been modified. this was done after realizing that the Government cannot offer employment to every person and the requirement is only to serve in India for a period of 15 years and it need not necessarily be in Government service. Each of the petitioners have also stated in the affidavit that they are willing to serve in India as per the bond executed by them.
8. Mr.S.R.Rajagopal, learned counsel appearing for the petitioners submitted that thise is no condition in the bond providing for lien over their certificates and the submitted certificates are properties of the petitioners and that cannot be withheld by any authority, except with the consent of the petitioners. Further, there is no condition either in the bond or made in the prospectus that those certificates can be withheld as a condition precedent for executing other clauses of the bond. He also submitted that the respondents have complete address of all the petitioners including the address of their original native places and if any conditions of bond are violated at the maximum the respondents can only execute those conditions including claim for damages which are quantified in the bond through appropriate means. In the absence of the petitioners not violating any of the conditions of bond and in the absence of the respondents having any positive right to withhold those documents, it is rather unfortunate that the said authorities are trying to retain lien over such documents. By this, they are not allowing the petitioners to have any avenue to serve in any organization, which is not the intention for imparting studies to them with considerable amounts involving public funds.
9. Notice in all these writ petitions were served on the respective respondents. Inspite of the same, there has been no reply forthcoming from the side of the respondents. Since the petitioners are also having offers to serve in various places, these writ petitions cannot be kept pending for years together. The argument based on a Government Order permitting the retention of such certificates as a reason is neither authorised under law nor made as a condition precedent to enforce such conditions.
10. Under such circumstances, all the writ petitions will stand allowed. The respondents are directed to return the certificates/documents sought for by the petitioners individually by the respective Deans of the various Medical Colleges, within a period of two weeks from the date of receipt of a copy of this order. If the Deans of the respective Medical College come across any violation of the conditions of bond executed by each of the petitioners, it is open to him to enforce the terms of the bond in the manner known to law."
(ii) Against W.P.No.17203 of 2008 from batch of writ petitions, W.A.No.1444 of 2008 was filed, which was also dismissed by the Hon'ble Division Bench of this Court. In the said order, it was held as under:
"3. We have heard the learned counsel appearing on either side and perused the entire materials available on record.
4. The case of the appellants is that, as per Clause 68(d) of the Prospectus, non-service candidates, on completion of the course, should serve the Government of Tamil Nadu for a period of not less than three years; the prospectus is binding on the respondent; admission was given to her only on the premise that, on completion of the course, she would bind herself to serve the Government of Tamil Nadu for a period of three years; having accepted the condition precedent for admission into the Post Graduate Course, she is now estopped from contending that she is not bound by the same; Government has a legitimate expectation that she would serve the rural poor and therefore the order passed by the learned Single Judge cannot be legally sustained.
5. According to the respondent, there is no condition prescribed in the bond providing for lien over the certificates; the certificates are her properties, which cannot be withheld by the appellants, except with her consent and that there is no condition stipulated in the bond or in the prospectus that certificates would be withheld as a condition precedent for executing other clauses of the bond.
6. The learned Single Judge, after taking into account the fact that the respondent has not violated the terms and condition stipulated in the bond as well as in the prospectus, directed the appellants herein to return the certificates / documents sought for by the respondent herein. The learned Judge has also held that if the terms and conditions stipulated in the bond are violated by the respondent, then, it is for the appellants to enforce the terms of the bond in a manner known to law. From a perusal of the materials available on record, we also find that the respondent has not violated any of the conditions stipulated in the bond or in the prospectus. therefore, we hold that the appellants have no right to withhold the certificates / documents of the respondent, unless and until the terms and conditions of the bond are violated by the respondent. Consequently, we hold that the order passed by the learned Single Judge cannot be interfered with in any manner and the writ appeal is dismissed."
(iii) Similarly, against W.P.No.1052 of 2013 from another batch of writ petitions, W.A.No.2248 of 2013 was filed, which was also dismissed by the Hon'ble Division Bench of this Court by the judgment dated 19.12.2013. In the said judgment, the Division Bench held as under:-
"5. The materials on record clearly shows that the learned Judge followed the earlier order in W.P.No.17203 of 2008 as upheld by the judgment in W.A.No.1444 of 2008. Since the judgment in W.A.No.1444 of 2008 has become final, the appellant cannot be heard to say that the learned Single Judge was not correct in issuing a mandamus to return the certificates.
6. The learned Special Government Pleader wanted this Court to give liberty to the appellant to invoke the conditions of bond. there is no need for any such liberty.
7. In the upshot, we dismiss the Writ Appeal. No costs. Consequently, connected miscellaneous petition is closed."
7. In W.P.Nos.23491 to 29502 of 2013, this Court, by order dated 14.3.2014, following the above-said judgments, ordered the Writ Petitions in terms of the above referred orders. Accordingly, following the above judgments, the present Writ Petition is ordered and the concerned respondent is directed to return all the original certificates to the petitioner, within a period of two weeks from the date of receipt of a copy of this order, after getting an affidavit of undertaking from the petitioner that she will serve in Tamil Nadu for a period of two years. No costs.
20.6.2014 Internet : Yes/No ga To
1. The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-10.
2. The Dean, Madras Medical College, Chennai B.RAJENDRAN,J ga W.P.No.14593 of 2014 20.6.2014