Madras High Court
The State Of Tamil Nadu vs P.S.Sairam
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.No.799 of 2019 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.09.2020
DELIVERED ON : 06.10.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.799 of 2019
and
W.P.Nos.23827, 19810, 19811, 19812, 19814, 19816, 19817, 20812,
20813, 21515, 21225, 21226, 21227, 21228, 21231, 21232, 21233,
21234, 21373, 21239, 21247, 21368, 21218, 21219, 21740, 21742,
21743, 19809, 19813, 21213, 21215, 21216, 21217, 21741, 21214,
21371, 21224, 10895, 20800, 20808, 20810, 10894, 21230, 21220,
21221, 21222, 21223, 21236, 20811, 21237, 21229, 11485, 21370,
21372, 21235, 21369, 21238, 20817 and 21212 of 2017 and 27514 of
2013
and
W.M.P.Nos.22144, 22124, 21655, 21658, 21659, 21660, 22749,
22118, 22120, 22121, 22122, 22137, 21647, 21654, 22130, 22131,
22132, 22133, 22134, 22135, 22136, 22330, 22745, 22746, 21385,
21386, 21387, 21388, 22143, 21383, 21384, 21381, 21382, 21389,
21672, 21673, 22113, 22114, 22123, 22125, 22126, 22127, 22128,
22326, 22327, 22328, 22329, 22331, 22332, 22333, 22335, 22336,
22129, 22138, 22142, 21380, 21661, 21662, 21663, 21664, 22747,
22748, 21393, 22116, 22117, 22139, 22140, 22141, 22501, 22744,
22112, 22151, 22152, 22502, 22334, 22750, 11838, 11839, 11840,
11841, 12464, 12465, 21379, 22751, 25059, 25060, 21390, 21394,
21395, 21396, 21665 of 2017
and
C.M.P.Nos.9689, 9600, 9603, 9606 of 2020
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W.A.No.799 of 2019 etc. batch
W.A.No.799 of 2019:
1.THE STATE OF TAMIL NADU,
THROUGH ITS SECRETARY,
DEPARTMENT OF HEALTH & FAMILY WELFARE,
FORT ST. GEORGE, CHENNAI-9.
2.THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION (DME)
156 POONAMALLEE HIGH ROAD,
KILPAUK, CHENNAI-10. ... Appellants
Vs.
1.P.S.SAIRAM
2.SAAD ASLAM KHAN
3.NEIMENUO KUOTSU
4.DR.AMIT KUMAR
5.JYOTHIS PULIYAMKUNNATH JOSE
6.T.M.VAISHNAVI
7.K.KOKILA
8.MIDHUN MOHAN
9.VIJAY G
10.M.RAMYA JOTHI
11.WARANG OMKAR SHARAD
12.V.VISHNUPRIYA
13.NEHA DHOK
14.SUGUMARAN KANDASAMY
15.BALARISUK BYRSAT
16.ANUSREE A KARUN
17.POORNIMA K.NAIR
18.UDAY SRINIVAS
19.THAMARAIKANNAN
20.POORNIMA.T
21.MERIN VARGHESE
22.MARTUM JOKIK
23.GANGA CHELLAMUTHU
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W.A.No.799 of 2019 etc. batch
24.K.SANGHEETHA
25.NISHANT KUMAR SAHU
26.POURNAMI B
27.R.SRINATH
28.K.GAYATHRI
29.PRIYANKA V K
30.KETHAVATH ANITHA
31.FLAICY VARGHESE
32.SAVITHA MANOKARAN
33.CHIDAMBARAM SETHURAMAN
34.VYAS NARAYANAN
35.SANJANA S
36.KARTHIKA SANKAR
37.SUHAN DINESH NARAYAN
38.VAISHNAVI VK
39.ASHWINI MUTHUSAMY
40.KOCHAMI P A
41.HARITHA
42.M.AMALA GRACE
43.NANDHINI M.V.
44.VIDHYA MOHAN
45.SHARADHA SUNDARARAMAN
46.PRIYADHARSHINI JEYAPRAKASH
47.HANGSHING THANGALAWMLAL
48.PRADEEP RAM S
49.J.NIVEDITA
50.G.DHIVYALAKSHMI
51.NAZIA HUSSAIN
52.SHRUTHI JAYAPAL
53.RAJESH M
54.MALAVIKA S
55.LEKSHMI MOHAN
56.KALIRAJ ALWAR MURUGARAJ
57.SUSAN JACOB
58.R.AFREEN NAHAR
59.SOUNDARYA BALAJEE
60.AJAY ABRAHAM
61.THURAKA SHILPA REDDY
62.NIVETHA KAMESWARI V
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W.A.No.799 of 2019 etc. batch
63.ANN MARY ZACHARIAS
64.SARATH R S
65.KANDKURTIKAR RACHANA RAMACHANDRA
66.G.PRASANTH
67.HRIDYA VASUDEVAN
68.K.LOHIT SAI
69.SONY P S
70.TEENA K
71.VIDHYA RENGARAJU
72.C.S.SRI SUGHANYA
73.A.K.ROOPA
74.S.ANU
75.ANTONY THOMAS
76.JAYASREE RAJENDIRAN
77.DEVI KRISHNA G.S.
78.K.PRAVEEN
79.SUDHA JANAKY M S
80.THOMAS BABU
81.R.JAY GANESH
82.RITIKA GAUTAM
83.SNEHA SURESH
84.GOKUL PRASANNAN
85.SWATHY RAJU
86.TRUPTI NARASIMHAPPA
87.GOMATHI
88.REMAN RAJENDRAN
89.A.SUJA RAJAN
90.SHRAAVAN KUMAR B
91.MANOCHITHRA
92.SWETHA K
93.VIJAYARAGAVAN R
94.K.G.RAJ NIHEDAN
95.A.ABDUL RAHIM
96.AMEENA ASLAM
97.JITHU GEORGE
98.ASHWINI RAJASEKARAN
99.KRISHNA KUMAR S
100.ATCHYA ELANGOVAN
101.LALITHA RAJALAKSHMI
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W.A.No.799 of 2019 etc. batch
102.ANUSHA RAMADOSS
103.TREESA P VATTAKUZHI
104.JERRIN C JOY
105.ARUNA S K
106.ANUPAMA S
107.C.MADHUMITHA
108.RAUT ASHWINI SANJAY
109.RUBU ANU
110.POORNIMA NAIR
111.SREE DIVYA M
112.T D VARNEIKIP CHIRU
113.PRASANTH J
114.SWATHI PRAKASH J
115.P.EZHIL
116.ROJER DAVID BINNY V
117.ANBARASAN S
118.G.NAGAPRIYA
119.SAI SHIVA G
120.MANJU MUNIYAPPA
121.SRINIDHI V
122.R.AISWARYA
123.DHIVYAA M
124.SWATI GUPTA
125.REMYA E
126.SHIBIN SASIDHARAN
127.UTPAL SUTARIA
128.N.SUDHA PRIYADHARSHINI
129.SALAHUDHEEN M
130.AJITHA D
131.SARANYA S
132.ABDUL LATHEEF ABDUL GAFOOF
133.SHIRLEY T LEIVON
134.S.ANBARASAN
135.ARJUN C
136.INGERSAL N
137.VARUN P.G
138.KARTAVYA KAVADYA
139.JERRY ABRAHAM JOSEPH
140.SINJU SANKAR P
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141.ANI THAMPI
142.SHABIN J
143.SUGANYA E
144.N.EZHIL
145.LAKSHMI S.SUBEDAR
146.REMYA PARVATHY R
147.BOGALA GOWTHAMI
148.SRUTHI R S
149.INAN LOLLEN
150.VIVEK NAGAPPA
151.M.SRILAXMI
152.DELPHIN SUPRIYA J
153.SARATH HARIDAS
154.ASWATHY B.S.
155.JAMKHOPUM BAITE
156.MOHAMMED THARIQ
157.ANJU ROSE GEORGE
158.K.PRAVEEN
159.MEGHANA SELVARAJ
160.R.KARTHIK
161.NAMITHA RAJENDRAN
162.SATHIYA T
163.ARUN GOVIND
164.AARUSHI MANU
165.ISHWARYA JEYAGANTHI
166.T.RAJAKUMARI
167.INSHA MEHRAJ KAK
168.ARUL MURUGAN A
169.ARUNKUMAR A
170.NIRANJANA ASOKAN
171.ARULSELVAN
172.S.PRAVINSELVAM
173.J.MANOJ
174.AMUTHAVALLI K
175.MOHANAPRIYA ARUMUGAM
176.JAYA JARIKA
177.MIDHUN K PRAKASH
178.KAVIYA MURUGESAN
179.GNANESHWARI P
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180.DEEPIKA M
181.HIMA SURENDRAN
182.SANJU S T
183.ARUN PRASANTH K
184.AMBUJA SEKHAR
185.J.HEMILDA PERIANAYAKI
186.ASHWINI B
187.KUNAL KISHOR TAWARE
188.S.MURALI KRISHNAN
189.S.THALABATHIK KUMARA VIKRAM
190.SANJEEV P
191.SANJANA S
192.RAGINI RAJAN
193.NIKHIL RAJ R
194.DR.B.AGNI
195.MR.VASANTH KARTHIKEYAN
196.ABDULLA ANCHUKANDAN
197.PC HMINGMUANPUII
198.ANWIKA KIRTI KUKJUR
199.JAMSHEER VT
200.DR KARTHIKEYAN M
201.DR.M.MARIAM HABEEBA
202.DR.VIJAYAKUMAR A
203.DR.ESAKKI
204.DR.SUBASHINI M.R
205.SRIRADHU V.G.
206.SINDHU KALYANARAMAN
207.MEENAXI P MEHTA
208.M.Y.MOHAMED YASAR
209.THE REGISTRAR,
TAMIL NADU DR.M.G.R. MEDICAL UNIVERSITY
GUINDY, CHENNAI-25.
210.THE REGISTRAR,
TAMIL NADU MEDICAL COUNCIL,
914, POONAMALLEE HIGH ROAD,
ARUMBAKKAM, CHENNAI-106. ... Respondents
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W.A.No.799 of 2019 etc. batch
and batch cases
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 01.10.2018 passed in W.P.No.23874 of 2018.
In Writ Appeal:
For Appellants : Mrs.Narmadha Sampath
Addl. Advocate General
assisted by
Mr.T.M.Pappiah,
Spl. Government Pleader
For Respondents : Mr.R.Arumugam
for respondent Nos.1, 4 to 6,
9, 10, 12, 14, 15, 20, 24, 25,
27, 28, 30, 31, 39, 40, 44,
46, 47, 53, 55, 59, 61, 63 to
65, 67, 72, 74 to 76, 83, 85,
86, 91 to 93, 97, 106, 107,
110, 111, 120, 125, 126,
132, 140, 145 to 147, 151,
153, 154, 157, 160 to 162,
171, 172, 177, 179, 181, 184
to 186, 188, 195 and 198
: Mr.Suresh Sakthi Murugan
for respondent No.29
: Ms.A.Priyadharshini
for respondent No.49
: Mr.D.Ravichander
for respondent No.209
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W.A.No.799 of 2019 etc. batch
: Mr.V.P.Raman
for respondent No.210
In Writ Petitions:
For Petitioner in : Mr.S.Thangasivan
W.P.Nos.23827, 19814,
19816, 19817, 20812,
20813, 21373, 21247,
21368, 21740, 21742,
21743, 19809, 19810,
19811, 19812, 19813,
21213, 21215, 21216,
21741, 21214, 21371,
20808, 20810, 20811,
20813, 21370, 21372,
21369, 20817, 21212 of
2017
For Petitioner in : Mr.G.Justin
W.P.Nos.21225, 21226,
21227, 21228, 21231,
21232, 21233, 21234,
21239, 21218, 21219,,
21217, 21224, 21238,
21235, 21229, 21237,
21236, 21223, 21222,
21221, 21220, 21230,
21515 of 2017
For Petitioner in : Mr.J.Ferozkhan
W.P.No.27514 of 2013
For Petitioner in : M/s.C.S.K.Sathish
W.P.No.20800 of 2017
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W.A.No.799 of 2019 etc. batch
For Petitioner in : Mr.A.Sundaravadhanan
W.P.Nos.10895, 10894
and 11485 of 2017
For Respondents : Mrs.Narmada Sampath
Addl. Advocate General
assisted by
Mr.T.M.Pappiah
Spl. Government Pleader
for the State
: Mr.D.Ravichander
for Tamil Nadu Dr. M.G.R.
Medical University
: Mr.R.Sankaranarayanan
Addl. Solicitor General of
India
assisted by
Mr.V.Chandrasekaran
SPC
for Union of India
COMMON JUDGMENT
The Hon'ble Chief Justice The writ appeal and the connected writ petitions relate to the same subject matter, namely the dual question of the execution of indemnity bonds to serve the State of Tamil Nadu after having completed the Post Graduate Medical Courses, and the ________ Page 10 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch consequential issue of retention of certificates, the release whereof has been sought by the petitioners contending that, firstly, there was no such condition in respect of the All India Quota seats with which they are concerned, and then, even otherwise, the said conditions were not applicable in the absence of any relevant government order and enforceable rule.
2. The litigation has charted certain decisions and orders, which deserve an immediate mention at this stage itself. A batch of 208 petitioners joined in W.P.No.23874 of 2018 praying for a mandamus that the communication of the Director of Medical Education dated 17.7.2017 be enforced in respect of all the petitioners, who are students selected under All India Quota and instruct the return of original certificates without insisting on implementing the undertaking in respect of the bondage of service on completion of Courses. This writ petition was disposed of taking into account the Division Bench judgment in W.A.No.2248 of 2013 and the judgment of a learned Single Judge in W.P.No.14593 of 2014, dated 20.6.2014. Accordingly, a direction was issued to return the certificates as per the ________ Page 11 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch communication dated 17.7.2017. The said judgment is under appeal in W.A.No.799 of 2019.
3. What happened on the filing of the appeal also deserves to be noted viz., the fact that the appeal was dismissed on 23.4.2019 by a Division Bench, holding that in view of the communication of the Secretary to Government, Health and Family Welfare Department as well as the communication of the Director dated 17.7.2017, no undertaking or bond or condition was required to be complied with by the students, who have been selected under the All India Quota.
4. There is one relevant paragraph pertaining to the present controversy, which deserves notice in paragraph (8) of the order dated 23.4.2019 that records that the writ petition was allowed by the learned Single Judge without a counter-affidavit. Paragraph (8) is extracted herein under:
“8. However, we find that the said writ petition was not allowed on the very same day when the case was listed for admission. Nevertheless, the said writ petition was allowed without a counter affidavit. In our considered view, no counter affidavit would be required ________ Page 12 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch considering the fact that the second appellant herein – second respondent, in the said writ petition, neither disputed issuance of the said communication dated 17.7.2017 nor took a contrary stand in the said writ petition. Now, the appellants are attempting to set up a case that despite the said communication of the second appellant dated 17.7.2017, the original certificates of the writ petitioners, who were admitted under the All India Quota cannot be returned.”
5. The State Government urged that the matter had been disposed of without considering many relevant aspects of the matter and consequently, a Review Application No.111 of 2019 was filed that was allowed on 13.6.2019. The order passed in the Review Application is extracted herein under:
“This review application has been filed by the Government of Tamil Nadu and the Director of Medical Education, seeking to review the judgment in W.A.No.799 of 2019 dated 23.04.2019. By the said judgment and order, the appeal filed by the review petitioner / State was dismissed.
2. Heard Mrs.Narmadha Sampath, learned Additional Advocate General, assisted by Mr.T.M.Pappiah, learned ________ Page 13 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Special Government Pleader. We have also heard Dr.Indumathy, Deputy Director, Directorate of Medical Education.
3. Learned Additional Advocate General submitted that there is an error, which is apparent on the face of the judgment and requests that the Court may review the judgment and give an opportunity to the appellants to place all facts before this Court to justify their stand that the respondents / writ petitioners are bound by the terms of the bond executed by them and they are required to serve the Government of Tamil Nadu for a period of two years, failing which they have to pay a sum of Rs.40,00,000/-.
4. Learned Additional Advocate General would further submit that the letter addressed by the Director of Medical Education dated 17.07.2017, and the earlier communication of the Secretary to the Government, Health and Family Welfare Department dated 05.02.2016 do not pertain to academic session 2015-16, during which session the respondents / writ petitioners were admitted. It is submitted that there are several internal communications, which were not placed before this Court to justify the stand of the appellants that the communication dated 17.07.2017 of the ________ Page 14 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Director of Medical Education would be wholly inapplicable to the respondents / writ petitioners.
5. The learned counsel appearing for the respondents submits that pursuant to the interim order dated 01.04.2019 in W.A.No.799 of 2019, the fourth respondent Dr.Amit Kumar paid a sum of Rs.20,00,000/-, so as to enable him to take back his original certificates, as he has secured admission to Post Graduate Course, and accordingly the certificates were returned. It is further submitted that after the writ appeal was dismissed, in which we had issued direction that the amount paid by Dr.Amit Kumar should be refunded the entire amount, the appellants have complied with the same and the amount has been refunded to Dr.Amit Kumar.
6. Learned counsel for the respondents further submits that the bond was “obtained” from the respondents / writ petitioners and it is not contemplated under the prospectus issued by the National Board of Examination ('NBE' for brevity) for M.D / M.S / Post Graduate Diploma Courses, 2015 AIPGMEE 2015. Further referring to the Frequently Answered Questions (FAQs), in particular, the answer given to question No.30, it is submitted that the information received ________ Page 15 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch from various participating medical colleges should be made available in the Ministry of Health and Family Welfare website. However, no such information was available in the website. Therefore, it is the submission of the respondents / writ petitioners that when the prospectus issued by the NBE does not provide for executing a bond, the bond “obtained” from the respondents / writ petitioners would not be binding and they are not required to serve the Government of Tamil Nadu nor they are liable to pay any bond amount.
7. Countering the said submission, the learned Additional Advocate General submitted that the prospectus issued by the NBE clearly states that the stipend / fee structure / course duration / bond amount / rendering of service in rural / tribal area / other conditions etc., may vary from State to State and Institution to Institution and the prospectus clearly states that neither the Ministry of Health and Family Welfare / Directorate of Medical Education or the NBE will be responsible on that count. Further, it is submitted that the information furnished by the participating medical colleges was available in the website of the Ministry of Health and Family Welfare, and that the respondents / writ petitioners were fully aware of the bond condition and ________ Page 16 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch hence they cannot resile from the same.
8. We find that the materials placed before us at this juncture and the stand taken by the appellants before us was neither the point argued when the writ appeal was decided nor the appellants took such a stand in the writ petition, in which no counter affidavit was filed.
9. Though this may be the position, since the matter concerns not only with the welfare of respondents / writ petitioners, but also the welfare of the people of the State of Tamil Nadu, who are entitled to get the best expert medical care, we are of the view that the writ appeal has to be heard afresh, wherein the parties should be permitted to canvass all the points and place facts and materials so as to take a comprehensive decision in this matter. Insofar as Dr.Amit Kumar, fourth respondent herein is concerned, since the amount of Rs.20,00,000/- paid by him as bond amount has already been returned to him, after the appeal was dismissed by us on 23.04.2019, the appellants / State will not be entitled to recover the same from him. However, we make it clear that this shall not be taken as a precedent by the respondents / writ petitioners for any other matter.
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10. For the above reasons, the review application is allowed and the judgment dated 23.04.2019 in W.A.No.799 of 2019 is recalled. The writ appeal is restored to the file of this Court, to be heard and decided by the appropriate Division Bench afresh. Consequently, connected miscellaneous petition is closed.
11. After we have dictated the order, it was mentioned by Mr.R.Arumugam, learned counsel for the respondents/ writ petitioners have completed their Post Graduate Course but they are unable to get the same registered with the State Medical Council. Dr.Indumathy, Deputy Director of Medical Education, who is present in Court submitted that they have forwarded the necessary papers for registration to the Tamil Nadu State Medical Council in batches. Insofar as the candidates who are from other States is concerned, as of now no observation can be made and the matter has to be decided when the writ appeal is heard afresh.”
6. Thereafter, the present writ appeal, viz., W.A.No.799 of 2019, was restored. After restoration of the appeal, the matter came up before another Division Bench on 14.8.2019, which passed the ________ Page 18 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch following order:
“Learned Additional Advocate General Ms.Narmada Sampath appearing for the appellant, submits that the matter pertaining to return of the original certificates to the students who have executed a bond in favour of the State of Tamil Nadu while undergoing medical education, was heard by the Honourable Supreme Court in the recent past and the judgment was reserved about two weeks ago, and therefore, this Court may await the judgment of the Honourable Supreme Court.
2. On the other hand, the learned counsel for the respondents Mr.R.Arumugam and Ms.A.Priyadarshini submits that the issue before the Honourable Supreme Court was only pertaining to the students of the Super Speciality Courses, whereas the matter before this Court pertains to Graduation course of medical education.
3. However, we feel that this Court should await the decision of the Honourable Supreme Court to throw light on the points of law involved in this matter.
4. List after two weeks ie., on 28.08.2019.” ________ Page 19 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
7. This is how the writ appeal has been listed along with all other writ petitions that have been clubbed, for being heard simultaneously with the consent of learned counsel for the parties.
8. It is the contention of the writ petitioners that they had filled up the bonds, as they had sought admission, but the mere filling up of the bonds itself does not authorize the State or the Medical University to claim retention by way of lien over the certificates to which the candidates are entitled after having passed out the course.
9. It is urged that the compulsory service condition and retention of certificates is unlawful and is not supported by any legal provision by the State, hence the writ petitions should be allowed and the writ appeal filed by the State should be dismissed.
10. We had considered the arguments advanced in this bunch of petitions and had noted down the submissions on 30.7.2020. The said order is extracted herein under:
________ Page 20 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch “Writ Appeal No.799 of 2019 has been preferred by the State of Tamil Nadu urging that the learned Single Judge, while proceeding to allow the writ petition commanding the respondents, Medical University and the Tamil Nadu Medical Council as well as the Director of Medical Education to issue orders for release of all original certificates of the writ petitioners, has not taken into consideration the relevant legal issues involved, as also the documents that were required to be gone into and therefore, the conclusion drawn by the learned Single Judge, both on facts and law, is vitiated. It has been urged that with the judgment of the Apex Court dated 19.08.2019 in the case of Association of Medical Super Speciality Aspirants and Residents and Others vs. Union of India and others, (2019) 8 SCC 607, the legal issues stand sealed and hence, in view of the submissions raised, the appeal deserves to be allowed and the impugned judgment dated 01.10.2018 deserves to be set aside.
2.The learned Additional Advocate General submitted that as per the respective cases which have given rise to this appeal, the students range admitted between the Sessions 2014-15 and 2015-16 barring a couple of them who are with regard to other Sessions. It is urged that the prospectus which was issued right from 2012- ________ Page 21 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch 13 onwards contained a condition, without making any distinction between the students admitted against the State seats and All India quota seats, that all of them will have to fill up a bond and give an undertaking to serve within the State of Tamil Nadu or else remit a compensation which was referred to therein. It is also submitted that while filling up the bond and the undertaking, the candidates have specifically stated therein that they shall serve the State as per the undertaking and that the bond itself spells out about a lien on the original certificates of the candidates. It is, therefore, submitted that in view of this condition contained in the bond itself, none of the writ petitioners can be permitted to rescind back from the same, more so keeping in view the undertaking given later on.
3.While explaining the letters dated 14.07.2017 and 17.07.2017, which have been relied on by the learned Single Judge, it is urged that these letters and communications do not relate to the period for which the respondent petitioners have come up before this Court and consequently, any reference to the said letters/communications was an erroneous approach undertaken by the learned Single Judge.
4.It is also submitted that the two judgments which ________ Page 22 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch have been referred to by the learned Single Judge in the impugned judgment, which in turn refer to other judgments as well, do not in any way come to the aid of the respondent petitioners and therefore, the learned Single Judge was not justified in placing reliance on them. We may refer to the judgment dated 17.01.2013 in W.P.Nos.1052 to 1056 of 2013 in the case of Dr.V.Balasubramani Guhan and others vs. The Dean, Thanjavur Medical College, Thanjavur and Others, where taking a clue from the earlier Division Bench judgment in W.A.No.1444 of 2008, which proceeded on the assumption that there was no violation of the terms and conditions of the bond, held that the petitioners were entitled for the release of the certificates. The said judgment was affirmed in W.A.No.2248 of 2013, vide judgment dated 09.12.2013 and it appears from a perusal of the said judgment that the same was in relation to candidates who had joined the post-graduate course in M.D. in the academic year 2010-11. The other judgment referred to by the learned Single Judge is in the case of R.Lakshmi Malar vs. The Director of Medical Education, Chennai and another, reported in 2014 SCC Online Mad 2255, which is again related to the Session 2013-14, decided on 20.06.2014. It is urged that the very same ratio has been followed in the said judgment on the ________ Page 23 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch assumption that there was no violation of the terms and conditions of the bond. It is the contention of the learned Additional Advocate General that in the present case, there is a clear violation of the terms of the bond consciously and willingly filled up by the petitioners and therefore, the said judgments were not at all attracted, hence, the learned Single Judge committed an error by proceeding to allow the writ petition.
5.She further submits that whatever arguments that have been advanced on behalf of the respondent petitioners in this appeal and are now sought to be canvassed before this Court, had not been pleaded or even argued before the learned Single Judge and therefore, the documents which have been filed along with the typed set of papers on behalf of the respondents cannot be taken into account for granting any relief, more so, in the background that neither the Union of India nor the Medical Council of India were made parties before the learned Single Judge, nor there was any legal impediment preventing the State from having issued the Government Orders imposing such conditions that were only in continuity of the conditions which existed in the previous years terms and conditions. It is urged that the argument that the Government Orders do not have retrospective effect is ________ Page 24 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch of no avail, inasmuch as the undertakings given by the writ petitioners having not been denied, they cannot be permitted to ease themselves out of the said condition and thereby escape the compensatory clause for which it is necessary and imperative for the appellants to withhold the certificates. In the given circumstances, it is also urged that the students even against the All India Quota seats would be governed by the same terms and conditions as the students of the State quota and consequently, the impugned judgment cannot be sustained. Some other submissions have been advanced for which the learned Additional Advocate General has sought time to replenish the arguments with proper documents and affidavits.
6.We may point out that no counter-affidavit was filed before the learned Single Judge on behalf of the State Government nor any reply affidavit has been filed to the additional counter affidavit and other documents that have been brought on record by the respondent petitioners in the present appeal. The appeal is supported by a typed set of papers including the Brochures for the respective years and an additional counter affidavit to support the appeal. The said additional counter affidavit has been filed by the Director of Medical Education in March, 2019. ________ Page 25 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
7.We may again emphasize that the additional counter- affidavit filed by the 195 th respondent dated 27.08.2019 has not been responded to by the State Government, which contains certain material averments to the effect that there was a failure on the part of the State Government to provide employment to the respondent petitioners timely and therefore, they cannot insist on retention of certificates beyond the said period. As prayed by the learned Additional Advocate General, we grant time to the State Government to complete its pleadings on this score.
8.Responding to the said submissions, Mr.Arumugam, who has led the arguments on behalf of the respondent petitioners in this appeal, even though did not concede, but it was apparent that the issues which have been advanced by him in the present appeal are by way of a counter claim which were not there in the original writ petition. He submitted that the terms and conditions of the Prospectus did indicate the condition for filling up of a bond, but according to ground no.(2) taken in the appeal by the appellant State itself, it is evident that they had not even intended to apply and enforce the said condition for the year 2014-15.
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9.The second ground taken by the learned counsel is that the judgment in the case of Association of Medical Super Speciality Aspirants and Residents (supra), which was delivered in the year 2019, may have taken notice of the earlier two judgments of the Apex Court, but he has attempted to distinguish the judgment on the ground that in the case before the Supreme Court, there were bonds that were executed on the basis of certain Rules/Government Orders of the West Bengal Government, whereas in the instant case, there were no Rules or Regulations during the Sessions in question for obtaining any such bonds or even carving out a power in the hands of the appellants to retain the original certificates. Even otherwise, it was in relation to admissions of 2017-18. Thus, the said issue not being the issue canvassed before the Apex Court, the aforesaid judgment will not have any impact on the present proceedings.
10.The third argument of Sri.Arumugam is that there was no information by the Director General of Health Services on the website in respect of All India quota seats. Thus, even the Central Authority which is empowered to conduct the selections and grant admissions had also not imposed any such condition allowing the appellants to enforce such a condition and ________ Page 27 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch therefore, any such condition in relation to candidates who were admitted against the State quota seats cannot be read as a condition in respect of the candidates who were admitted against All India Quota seats. For this, he also relies on the fact that there are separate terms and conditions provided for, and whatever caveat has been provided for in the All India quota prospectus is in order to brief the students about the separate terms and conditions and the consequences of giving an option for seeking admission either against the State quota seats or the All India quota seats. He, therefore, submits that there were neither any implied or express indication of imposition of such a bond or a condition of lien on the certificates that could be spelt out with regard to the students who had gained admission against the All India quota seats. He submits that this distinction can still be argued keeping in view the Supreme Court judgment referred to herein above, as the Supreme Court judgment was in relation to the Sessions 2017-18 and beyond. He further submits that the phrase “including All India quota seats” also emerged for the first time in the Prospectus of the year 2017-18 and not prior to that, which itself establishes that prior to 2017-18, there was no indication or intention to apply the conditions of bond or lien in respect of students who took admission ________ Page 28 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch against All India quota seats.
11.The next argument of Mr.Arumugam to support the aforesaid contention is that G.O.(Ms.) No.92, Health and Family Welfare (ME) Department, dated 29.02.2016 cannot have a retrospective effect and will not apply insofar as the respondent petitioners are concerned. This is further fortified by the averments of the appellants in their additional counter affidavit.
12.The aforesaid argument in relation to the Government Order was sought to be substantiated by supporting it with the ratio of two judgments in the case of State of Punjab and Another vs. Dr.Viney Kumar Khullar and Others, (2010) 13 SCC 418 (paragraph 9) and Parmender Kumar and Others vs. State of Haryana and Others, (2012) 1 SCC 177 (paragraph 29).
13.Buttressing the submissions, Mr.Arumugam and Mr.Murugan, urged that no offer of appointment has been made and the candidates cannot be made to wait endlessly for the return of their certificates even beyond the period of the service which the respondent petitioners are supposed to render to the State in terms of the bond. Not only this, in some of the cases, ________ Page 29 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the very validity of the said bondage period had already expired. It is also stated that some of the respondents have been selectively benefited by release of certificates and the balance of the respondents represented here have been discriminated, inasmuch as, certificates in case of a large number of students have already been returned. The stand of the State Government is, therefore, completely inconsistent inasmuch as out of the same batch of students, they cannot proceed to return back the certificates and withhold in the case of others
14.One of the arguments advanced by Mr.Murugan is that no clause of retention of certificates was there in the Prospectus and for that, he has also invited the attention to the communication dated 05.02.2016. He has also invited the attention of the Court to the letter dated 16.03.2017, which he points out was the first time when the aforesaid rule was sought to be introduced for imposing the condition of bondage on candidates against the All India quota seats. He then contended that G.O.(Ms.) No.242, Health and Family Welfare (B1) Department dated 09.06.2020 indicates the vacancy position as 'Nil' and therefore, the State Government was not in a position even to offer appointment, therefore, the State Government or any ________ Page 30 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch of the authorities do not have any such residuary power so as to continue to withhold the certificates when they themselves have not been able to perform their part of the willingness to offer a job as per the time prescribed in the relevant Government Orders.
15.Sri.Arumugam has finally contended, apart from the other arguments that have been advanced, that statutory guidelines were issued by the University Grants Commission exercising powers under Section 12 of the University Grants Commission Act, 1956, to contend that there is a clear prohibition to the Institutions from retaining the certificates. Clause 4.2.4 of the said guidelines of October, 2018, having statutory force, the State Government cannot afford to override the same. This aspect is neither reflected upon or decided by the Supreme Court in the case of Association of Medical Super Speciality Aspirants and Residents (supra).
16.The learned Additional Advocate General has submitted that the State Government has the power to exercise such control over its seats even against the All India quota as the seats are funded by the State Government itself and therefore, the State Government is empowered to issue instructions or make any law for ________ Page 31 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch reasonably protecting its own interest and she has referred to Entry 25 of List III of the Constitution of India to substantiate her submission.
17.We have also heard the learned counsel for the Medical University, who, apart from other submissions, has urged that so far as the Universities are concerned, they are not retaining any certificates and they have sent it to the colleges. But, at the same time, he has urged that the Apex Court judgment in the case of Association of Medical Super Speciality Aspirants and Residents (supra) squarely applies and after the said decision, there is no scope for any argument for the respondent petitioners, hence, the impugned judgment deserves to be set aside.
18.There is a batch of writ petitions which are pending and have been connected with this appeal. The said writ petitions also raise the same issue, but with regard to different years of admission, in which no counter affidavit has been filed. We find from the orders that the Union of India through the Ministry of Health has been made a party respondent no.4 in all the said writ petitions. We have also heard Mr.Sundaravadanan, learned counsel for the petitioners in W.P.Nos.10984, 10985 and 11485 of 2017. We find that there is an ________ Page 32 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch interim order passed in W.P.No.11485 of 2017, dated 14.07.2017, which is to the following effect:-
“These writ petitions are filed challenging the order of the 1 st respondent calling upon the petitioners to report to Director of Medical Education to get posting in Tamil Nadu Medical Service or to pay the bond amount within fifteen days on the reason that they were selected for MD Course, based on the bond executed by them that they will work in the State of Tamil Nadu for a period of two years.
2.According to the petitioners, since they were selected under All India quota, there is no necessity for them to work for two years as required in the impugned proceedings. The correctness or otherwise of the impugned proceedings shall have to be considered and decided after completion of the pleadings.
3.This Court, while admitting the matter, has also granted interim stay on 27.04.2017. Now, it is represented that these petitioners have to take part in the counselling for super-speciality course to be held on 17.07.2017 onwards, for ________ Page 33 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch which purpose, they are in requirement of their respective certificates which are in the hands of the 1 st respondent. Therefore, they seek for issuance of interim direction for return of their certificates.
4.Considering the above stated facts and circumstances and considering the fact that this Court has already granted interim stay on 27.04.2017, this Court is of the view that no prejudice would be caused to the respondents, more particularly, the 1 st respondent to return the original certificates of the petitioner to take part in the counselling for super-
speciality course, since the writ petitions are being kept pending for consideration of the same on merits, after completion of the pleadings. Accordingly, there shall be an order of interim direction, directing the 1 st respondent to return the original certificates to these petitioners without prejudice to the contentions of the parties in these writ petitions.
Post the writ petitions after four weeks for filing counter. The interim stay granted already ________ Page 34 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch shall continue.”
19.The learned Additional Solicitor General of India has also appeared today and he submits that he will take notice and prays for ten days time to file a response in all these matters. We, therefore, grant him time, but simultaneously we find that not only the Union of India, but the Medical Council of India and the University Grants Commission are both proper and necessary parties keeping in view the arguments that have been advanced and have been noted by us hereinabove. We have been informed that National Medical Commission of India Act, 2020, has been promulgated and therefore, the learned counsel may ascertain if a notification has been issued in terms of Section 60 thereof, then he may also implead the appropriate authority of the said Commission as a party respondent, instead of the Medical Council of India.
20.We, therefore, direct the learned counsel for the appellants to implead the Medical Council of India, the Union of India as also the University Grants Commission as a party respondent in this appeal, which we find necessary in view of the facts that have emerged for determination. They are proper and necessary parties for an effective and final ________ Page 35 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch determination and we find support from the judgment of the Apex Court in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar, AIR 1963 SC 786.
21.We also direct the learned counsel for the appellants to serve a copy of the papers that have been brought on record and we also direct Mr.Arumugam to circulate the typed set of papers that have been filed by him as it would be necessary for the University Grants Commission and the Medical Council of India to study the said papers and then file a response. This exercise is being undertaken, as we find that there was lapse of procedure before the learned Single Judge in proceeding to decide the issues without impleading the proper and necessary parties, even though the contentions which have been advanced are directly connected with them.
22.Let these formalities be carried out within a week. It shall be open to the learned counsel to serve the copies of the papers on the learned Standing Counsel appearing for the three organisations.
23.Mr.S.Thangasivan, learned counsel for the petitioners in some of the writ petitions, has also ________ Page 36 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch sought time to seek instructions as it is stated that the statutory period of bondage may have become infructuous on account of the contingencies in respect of some of the petitioners. He may complete his instructions and file a proper affidavit in all the writ petitions in which he is appearing.
24.Having considered the submissions raised and having issued the aforesaid directions, we post the matter for further hearing before us, after ascertaining the point of view of the other newly impleaded respondents as well as the arguments on behalf of the learned counsel who have appeared today.
25.A separate miscellaneous petition in C.M.P.No.7906 of 2020 has been filed on behalf of respondent no.29, Priyanka V.K. Orders are being passed separately on the said petition, which shall also form part of this order. List all the matters on 10.09.2020.”
11. We may point out that the writ petitions had proceeded without the Medical Council of India on record and, therefore, the Medical Council of India was impleaded by the aforesaid order and the learned counsel appearing for the said respondent has also been ________ Page 37 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch heard.
12. The arguments were advanced once again by Mr.R.Arumugam, Mr.Suresh Sakthi Murugan and Ms.A.Priyadharshini for the writ petitioners/candidates; Mr.R.Sankaranarayanan, learned Additional Solicitor General of India, assisted by Mr.V.Chandrasekaran, for the Union of India; Mr.D.Ravichander, learned counsel for the Tamil Nadu Dr.M.G.R. Medical University; Mr.V.P.Raman, learned counsel for the Medical Council of India, and Mrs.Narmadha Sampath, learned Additional Advocate General, who has advanced the submissions on behalf of the State along with Mr.T.M.Pappiah, learned Special Government Pleader.
13. During the pendency of these writ petitions, the legal issues that have been raised on constitutional issues came to be considered in a batch of writ petitions and Special Leave Petitions before the Apex Court in the case of Association of Medical Superspeciality Aspirants and Residents and others v. Union ________ Page 38 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch of India and others, (2019) 8 SCC 607, decided on 19.8.2019. In paragraph (16), the Apex Court framed four issues that were taken up for consideration by the Court. Paragraphs (16) to (16.4) are extracted herein under:
“16. The main points that require consideration are:
16.1. (I) Jurisdiction of the State Government. 16.2. (II) Violation of Fundamental Rights. 16.3. (III) Contract of Personal Service. 16.4. (IV) Restraint on Profession.”
14. We may additionally point out that the State of Tamil Nadu and the issue of execution of indemnity bonds to serve the State Government compulsorily for a period of two years after successful completion of post-doctoral course in MD/MS, and two years after successful completion of Post Graduate Diploma course was the factual foundation that led to a challenge to the conditions in respect thereof, including the imposition of penalty on account of defaulting to carry out the said indemnity. In paragraph (1) of the judgment, we find that the State of Tamil Nadu was duly represented. In order to remove any doubts, paragraph (1) of the ________ Page 39 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch judgment is extracted herein under:
“Leave granted. The controversy in these cases pertains to the compulsory bonds to be executed for admission to postgraduate medical courses and superspeciality courses. The Association of Medical Superspeciality Aspirants and Residents has filed Writ Petition (Civil) No. 376 of 2018 seeking a writ of mandamus for quashing the compulsory bond conditions, as imposed in the superspeciality courses by the States of Andhra Pradesh, Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Tamil Nadu, Telangana and West Bengal respectively. A further direction is sought for returning the original marksheets, certificates and other documents retained by the respective State authorities after the completion of the speciality courses concerned.”
15. We further find from the said judgment that the arguments on behalf of the State of Tamil Nadu by the learned Additional Advocate General, Mr.Balaji Srinivasan, were noted as under in paragraph (15) thereof:
________ Page 40 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch “15. Mr Balaji Srinivasan, learned Additional Advocate General appearing for the State of Tamil Nadu stated that there are 334 superspeciality seats in 24 government medical colleges run by the State Government. The Government is charging only Rs 30,000 p.a. from the doctors undergoing superspeciality courses. An amount of Rs 21 lakhs is spent on each postgraduate student by the Government. Earlier, the bond required superspecialists to serve for 10 years in the State and pay Rs 2 crores in default. The State reviewed the policy and reduced the bond amount to Rs 50 lakhs. The period of service to be rendered by the doctors who have undergone training in superspeciality courses has been reduced to two years from ten years. It is also brought to our notice that about 217 candidates have violated the bond conditions.”
16. The Apex Court thereafter went on to hold that the States have full competence to issue notifications imposing such conditions for execution of bonds in paragraph (17) of the report. ________ Page 41 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
17. The second question of violation of fundamental rights was dealt with and it was held that such a condition was neither arbitrary so as to be hit by Article 14 of the Constitution of India, nor was it unreasonable. It was further held that it did not impinge upon either Article 19 or Article 21 of the Constitution of India. While dealing with the question of violation of Article 19(1)(g) of the Constitution of India, the Court found that the appellants/petitioners had without any protest accepted the admissions and executed the compulsory bonds, which was part of a composite package and, therefore, none of the professional rights of the candidates were being violated. While dealing with Article 21 of the Constitution of India, the Court went on to hold that the State is a welfare State and the good of the people being the chief law, the State which is enjoined with the duty under Article 47 of the Constitution of India to raising the standards of health and nutrition had the authority to impose such a condition for execution of a bond, for which elaborate reasons have been given in paragraphs (21) to (33) of the report. The issue of Article 23 of the Constitution of India of any forced labour being involved was also rejected applying the principles that ________ Page 42 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch were borrowed from the American Supreme Court decisions and have been dealt with in paragraphs (34) to (36) of the report.
18. It was further held by the Apex Court that a contract of personal service of the nature involved did not fall foul of the Specific Relief Act, 1963 and it was held that the condition of compulsory bonds is not in violation of Section 27 of the Indian Contract Act, 1872.
19. Thus, all the legal questions were answered to finally hold that all the doctors who have executed compulsory bonds shall be bound by the conditions contained therein. The Court, however, keeping in view the various parameters that were placed before it, observed that certain rigid conditions have been imposed, which deserve to be applied in a uniform manner throughout and, therefore, directed the Union of India and the Medical Council of India to announce a uniform policy in this regard.
20. Learned counsel for the Medical Council of India has come ________ Page 43 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch forward with an affidavit on behalf of the Medical Council of India to urge that this direction of the Supreme Court has been complied with by the Medical Council of India and the Committee constituted for the said purpose, after deliberations with the 19 State authorities, who had sent their representatives formulated a uniform bond policy. The relevant recommendations with regard to the Under Graduate Courses, Post Graduate Courses and the Super Speciality Courses are extracted herein under:
“VI Recommendations of the Committee w.r.t. Undergraduate Courses:
1. Considering the fact that the students have to go through the long tenure of MBBS Course of four and a half years and complete 01 year of compulsory rotatory internship thereafter (Five and a half years in all the tenure of Bond Period should be restricted to not more than One year. The Bond Value or amount to be paid in situations of non compliance owing to valid reasons, should not be more than Rs.10 Lacs.
2 For facilitating compulsory service to be rendered ________ Page 44 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch by the candidates, states may have to do exercise of calculating Total number of students passing out against number of PHCs and CHCS in advance to facilitate early loading and commencement of services: If there is failure on part of the state government to induct the candidates into services in consonance with bond, within a period of 03 months after completion of internship, the candidates should be deemed to be exempted from bond as mentioned in the bond policy of Jharkhand.
3. For optimizing the allocation of posting for rendering compulsory service. every State Government has to create a Nodal Agency for advance Notification Counselling. Posting and Monitoring of services rendered by such doctors during the tenure Taking all these factors into consideration every State Government may notify scheme of compulsory Rural Service for Bond Doctors delineating all conditions and clauses before counselling to all UG/ PG/SS courses.
4. Such Nodal Agency should liaise with the State Mission Director of NHM for deployment into the Sub District health set up i,e. PHCs and CHCs'.
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5. The service conditions with regard to Pay & Perks and the leaves allowed should be well notified and be equivalent to Junior Medical officer at entry level as is done in case of Junior Residents working in consecutive State Government. Provision of logistics in the form of accommodation/transport etc should be streamlined.
6. Bond service should not be a hindrance to career progression of candidates who may find avenues for higher studies either in India or abroad. In the event of any student getting an opportunity to study abroad or getting appointed in any sector or getting PG seat, the compulsory bond services of such candidate may be deferred to a later stage.
7. Following completion of compulsory Bond Tenure of 1 year if the doctor desires to continue he/she may be allowed to extend the tenure of services for one more year giving him/her due seniority for service already rendered.
8. The glaring anomaly observed by the Committee is that the students passing out from Private Colleges ________ Page 46 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch or Autonomous Institutions are not under compulsion to do any service resulting in their taking an artificial leap and marching ahead of meritorious students who are passing out of Government Colleges. In other words, they get substantial effortless lead over the students passing out from Government Medical Colleges.
9. Those who would like to opt for Defence Services may be exempted from rendering compulsory Bond service.
10. Tenure of Bond in all states for candidates through State Quota should be maximum 01 year and Bond Amount upto Rs. 15 Lacs.
11 Tenure of Bond for candidates selected through All India Quota for all states should be maximum 01 Year and Bond Amount upto Rs 10 Lacs.
VII Recommendations of the Committee w.r.t.
Post Graduate Courses In addition to the point recorded above w.r.t. UG Courses, the following issues are pertinent:
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1. The Post Graduate students should be posted in respective specialities or allied specialities to best utilize their services preferably at district Hospitals and Medical Courses.
2. Those who would like to opt for Defence Services may be exempted from rendering compulsory Bond service.
3. The tenure of Bond Period for candidates selected through State Quota should be restricted to not more than 02 years. The Bond Value or amount to be paid in non compliance for valid reasons, should not be more than Rs. 20 Lacs.
4. Tenure of Bond for candidates selected through All India Quota for all states should be maximum 01 Years and Bond Amount up to Rs. 15 Lacs.
VIll Recommendations of the Committee w.r.t. Super Speciality Courses:
1. In case the Super Speciality students are required ________ Page 48 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch to service bond they should be taken as contractual staff against a vacancy commensurate with their qualification and position.
2. Those who would like to opt for Defence Services may be exempted from rendering compulsory Bond service.
3. Students selected through NEET Super Speciality should have Uniform Bond Policy in all states Maximum 02 Years and Rs. 20 Lacs.”
21. It is further stated in the affidavit filed by the Medical Council of India that the said recommendations and the Draft Report have been forwarded by it to the Central Government on 1.7.2020, and the response sent by the Medical Council of India vide email dated 28.8.2020 is pending consideration with the Central Government.
22. The contentions that have been advanced on behalf of the writ petitioner/Doctors discloses that there are three writ petitions in the present batch, namely, W.P.Nos.10894, 10895 and 11485 of 2017, which relate to the session 2012-2013 of the Post Graduate ________ Page 49 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch All India Quota.
23. Another stray writ petition, being W.P.No.20800 of 2017 is with regard to the All India Quota Post Graduate candidate of the session 2015-2016, who has not yet completed the course, but has not filled up any bond. The said candidate is an Under Graduate Course candidate of the year 2012.
24. The majority of the writ petitioners are of the session 2014-2015 and 2015-2016, who are aggrieved by the action of the State and are seeking their release of certificates on various grounds. However, the common ground of attack is that so far as the judgment of the Apex Court is concerned, the same did not decide the issue as to whether such conditions were applicable against All India Quota seats or not, and since the matter is to be governed by a competent law to backup the execution of the bonds, then in that event, if the bonds said to have been executed by the candidates are bereft of any legal support, the judgment of the Apex Court would not be an impediment for the consideration of the ________ Page 50 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch relief prayed for by the candidates. It has also been urged that the said proceedings before the Apex Court did not involve any matter pertaining to the sessions with which the present petitioners/candidates are concerned and consequently, the judgment of the Apex Court would apply prospectively post 2017-
2018 session and would not apply retrospectively that too even in the present cases, where there is no statutory backing of any government order or rule or regulation. Not only this, learned counsel for the candidates have invited the attention of the Court more specifically to the communication of the Director of Medical Education dated 14.7.2017 and 17.7.2017 clearly indicating waiver of such conditions in respect of candidates occupying All India Quota seats.
25. It is submitted that G.O.(Ms.) No.242, Health and Family Welfare (B1) Department, dated 9.6.2020 is in respect of the session 2017-2018 onwards and, therefore, it will not apply to the candidates presently in question. The said government order has been wrongly referred to in some of the posting orders that have ________ Page 51 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch been offered to some of the candidates.
26. Mr.R.Arumugam has urged that neither in the prospectus of 2014-2015 or 2015-2016 there is any specific indication of empowering the Medical University to retain certificates on account of the filling up of the bonds. He further submits that the State Government itself has failed to offer any jobs and, therefore, the execution of the bonds stand frustrated on account of the inaction of the State Government itself. If the State Government was not having any vacancies, as is evident from G.O.(Ms.) No.242, Health and Family Welfare (B1) Department, dated 9.6.2020, then there is no occasion to retain the bonds and not allow the students to pursue their careers, either educational or professional in future elsewhere. The candidates have suffered immense losses and he has pointed out illustrations to indicate that some individual candidates in spite of having offered admissions in higher super specialty courses could not get admitted because of non availability of the certificates, that continue to be retained by the State Government, and on the other hand, no job was offered to them. ________ Page 52 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
27. He has further submitted that in respect of the previous years, G.O.Ms.No.215, Health and Family Welfare Department, dated 12.6.2007, imposing such a condition had been struck down, by a learned Single Judge of this Court in S.Rajesh vs. The State of Tamil Nadu and Ors., (2009) 1 MLJ 1103.
28. Another argument that has been advanced on behalf of the candidates is that the University Grants Commission Act, 1956 defines a University and the Tamil Nadu Dr.M.G.R. Medical University being a University in terms of the 1956 Act cannot retain certificates, for which reliance has been placed on Section 12(b) of the 1956 Act. It is urged that retention of certificates is in violation of the said provisions, that will prevail over the bond conditions which are sought to be imposed on the candidates. This aspect, even though referred to in paragraph (1) of the Apex Court decision in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra), has not been specifically answered therein.
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29. It has further been pointed out that many candidates of the same batch, during the pendency of these writ petitions, have been benefitted with the release of the certificates and this is a clear act of discrimination, hence the stand of the State deserves to be rejected.
30. Refuting the aforesaid submissions, learned counsel for the Medical Council of India contends that the judgment of the Apex Court did refer to the cause relating to All India Quota in paragraph (5.5), while dealing with the submissions raised on behalf of the Government of Karnataka, but no specific finding on the said issue has been given, but it will be deemed to have been considered. Similarly, the issue of return of certificates was urged and will be deemed to have been answered against the petitioners.
31. Mr.Raman submits that in so far as the Medical Council of India is concerned, it had issued a general prospectus in respect of the examinations and admissions alongwith Frequently Asked ________ Page 54 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Question and answers thereto that are self-explanatory and, accordingly, so far as the stand of the Medical Council of India is concerned, it is clear that in the examination pattern, as notified in the All India Prospectus, candidates have been clearly forewarned and informed that they should carefully look into the terms and conditions of admissions of the respective medical college in each State before exercising their option, and hence they cannot now turnaround and contend that the bonds filled up by them would not be applicable.
32. Mr.Sankaranarayanan, learned Additional Solicitor General of India submits that so far as admissions are concerned, the same are governed by the law as applicable through the regulations of the Medical Council of India and the prospectus under which admissions are sought. He, therefore, submits that as to what would be the impact of the terms of the bonds executed by the students vis-a-vis the provisions of the Contract Act, or for the law time being in force relating to such personal service contract, can be debated and resolved between the candidates and the State Government, as the ________ Page 55 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Central Government was not a party to the said bonds and the issue will have to be examined on the basis of the claim and counterclaim of the said parties. He submits that the legal issues have been to a great extent settled by the judgment in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra), but in view of the contentions raised in these petitions, the applicability of the said judgment will have to be considered in the light of the facts that have emerged in the present set of cases.
33. Mrs.Narmadha Sampath has spearheaded the arguments on behalf of the appellant State in the writ appeal and the respondents State in the other writ petitions, contending that the prospectus issued by the State Government from time to time clearly envisages a specific condition, and all the candidates with their open eyes have subjected themselves to the said condition of executing a bond for serving the State for the period as prescribed in the bonds. They cannot now be permitted to wriggle out of the same, in as much as the prospectus which has been issued is in consonance with the dictum of the Apex Court that is declaratory in ________ Page 56 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch nature and, therefore, is binding. The contract, therefore, entered into between the State and the candidates has a legal and binding effect and cannot be avoided.
34. She has further submitted that, as a matter of fact, the period of two years provided by the State to offer employment had not yet expired when most of the petitioners rushed in before this Court and, therefore, the proceedings were held up, but in spite of that, since some time was taken to identify the posts against which the employment could be offered, out of the 208 candidates who had passed out during the said period, 76 posting orders were issued, but only 10 have joined. It is, however, not disputed that offers have not been made to all the candidates and the reason given for the same during the arguments is that the identification of the posts does take some time and it was on account of the matter being sub judice that the same could not proceed.
35. She has further submitted that the plea of a nil vacancy which is being raised on the basis of G.O.(Ms.) No.242, Health and ________ Page 57 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Family Welfare (B1) Department, dated 9.6.2020 is absolutely misconceived, in as much as the offer of posts under the bonds can also be made by the State Government bereft of any regular vacancies. The contention is that contract employment can be offered, which has been done in the present cases and, therefore, to link it to non fulfillment of regular vacancies is erroneous.
36. She has invited the attention of the Court to the various clauses of the prospectus right from 2012 to 2016 to contend that these conditions were very much known to the candidates and, therefore, they cannot wriggle out of the same.
37. She submits that most of the legal issues now stand answered by the Apex Court in the judgment of Association of Medical Superspeciality Aspirants and Residents and others (supra), and the same is applicable on all fours in the present controversy, as the same legal issues had been raised therein.
38. It has been urged that there is no distinction between the ________ Page 58 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch All India Quota seats and the State seats, in as much as the entire expenses of these seats are also borne by the State Government and the letters of communication dated 14.7.2017 and 17.7.2017 are not applicable to the petitioners in the present case, as it relates to subsequent sessions.
39. It has further been submitted that the judgment relied on by the learned counsel for the petitioners in S.Rajesh vs. The State of Tamil Nadu and Ors (supra) is not applicable keepin in view the terms and conditions of the prospectus which is binding on the candidates in the present cases. It is, therefore, submitted that all the writ petitions deserve to be dismissed and the appeal deserves to be allowed.
40. Learned counsel for the writ petitioners have advanced their submissions in rejoinder and have invited the attention of the Court to various documents that will be referred to herein after in the judgment.
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41. Learned counsel for the writ petitioners have urged that the admission to All India Quota is based on a different footing and have then pointed out that an interim application was filed by one Anand S. Biji in the proceedings (Anand S. Biji v. State of Kerala) before the Apex Court pending implementation of the scheme for holding of entrance examinations. The scheme was framed by the Supreme court in relation to admission to Post Graduate Medical Courses, where the Apex Court entertained the said interim application regarding imposition of the condition that a candidate ll have to serve the Government compulsorily. In that case, the Government of Maharashtra had framed a precondition for admission that the candidate will have to serve for a period one year as Medical Officer in any of the PHC/RHC in the State prior to the admission to Post Graduate course. It was also observed that different States have imposed different conditions and therefore, the Apex Court, after noticing the judgment in the case of Harish Pratap Sisodia v. Union of India, (1999) 2 SCC 575 observed that the States and Colleges cannot insist upon satisfaction of the “State requirements” as a condition to grant admission possibly against All India Quota seats. However, the said order was just an observation, but the main decision ________ Page 60 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch relied on by learned counsel for the writ petitioners is of a learned Single Judge in the case of S.Rajesh (supra), where G.O.Ms.No.215, Health and Family Welfare Department, dated 12.6.2007 where a precondition of admission to P.G. Degree/Diploma and other Post Graduate courses in the Tamil Nadu Government Medical Colleges came to be challenged, whereby the execution of a bond to serve the Government was sought to be enforced. The contention raised was that the said Government Order will not apply to the candidates who have been selected under the All India Quota. The question framed was whether the respondents (viz., the State and its authorities) are justified in getting bonds from the candidates selected under All India Quota? The answer given in paragraph (13) of the judgment is extracted herein under:
“13. Issue No.1: The petitioners, who are admitted on All India Quota, never applied before the respondents for admission to PG Degree/Diploma course. They have applied pursuant to the prospectus issued for admission to the said category and therefore the respondents cannot enforce the prospectus conditions, particularly clause 68(d) and direct the said candidates to execute the bonds at the time of joining in the course and such execution of the bonds will not in any way bind the All ________ Page 61 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch India Quota candidates. The learned Additional Advocate General also admitted the said issue and fairly submitted that the conditions of the bond and the Government Order cannot be applied to the candidates selected under the All India Quota. Hence it is held that the respondents are not entitled to enforce the bond or the Government order or the circular of the second respondent against the PG Degree/Diploma Holders, who are admitted under the All India Quota.”
42. The other issue that was framed was with regard to G.O.Ms.No.215, dated 12.6.2007, which empowers the State to retain the certificates till the bond period is completed. While deciding the said issue No.3, the Court struck down the said condition and held that the State would only be entitled to recover the amount under the bond, but they have no authority to retain the certificates, as that would be arbitrary and irrational. Paragraph (24) of the said judgment is extracted herein under:
“24. Issue No.3: Insofar as the Government order in G.O.Ms.No.215 Health and Family Welfare Department dated 12.7.2007, ordering retention of PG Degree/Diploma Certificates till the completion of two years of service, the contention of the learned counsel ________ Page 62 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch for the petitioner is well founded. The bond condition nowhere stipulates retention of Diploma/Degree certificates or any other certificates. Further, the petitioners have joined in their respective PG Degree/Diploma course prior to the issuance of the impugned Government order. Hence on any account, the petitioners' certificates cannot be retained by the respondents for any reason much less for enforcing the bond condition. Even in respect of the persons joined in PG Degree/Diploma courses subsequent to the issuance of the Government order, the respondents cannot retain the said certificates as the certificates belong to the petitioners and the same are required for registration in the Medical Council, to pursue their higher studies and for joining any private institutions. What is required under the bond executed by the petitioners is that they can either serve for three years or the respondents can demand a sum of Rs.2/Rs.3 lakhs for the breach of bond conditions. If for any reason petitioners are not willing to join, the respondents can only demand the said amount and therefore the condition to retain the certificates till the completion of two years of service is arbitrary and irrational.” ________ Page 63 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
43. However, it was held that the terms of the bonds executed by the candidates was binding, but it was left open to the candidates not to serve and in that event, the Government had right to recover the indemnified amount.
44. The writ petitioners have further relied on the Division Bench judgment dated 9.12.2013 in W.A.No.2248 of 2013 (The Dean, Thanjavur Medical College, Thanjavur v. Dr.V.Balasubramania Guhan), that was filed by the Medical College challenging the order of the learned Single Judge, who had given a direction to return the original certificates retained by them in a writ petition filed by a candidate. The said writ appeal was dismissed by a short judgment relying on the judgment of another Coordinate Bench in W.A.No.1444 of 2008, decided on 11.11.2011 (State of Tamil Nadu v. Dr.V.Seethalakshmi). The said appeal had arisen out of a judgment of the learned Single Judge dated 20.11.2008, where the same mandamus had been prayed for return of the original certificates and the appeal filed by the State was dismissed by a short order.
45. The writ petitioners have then relied on the Prospectus of the ________ Page 64 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch years previous to the years of the candidates involved in these proceedings as well as the later years to demonstrate that there was no such condition of filling up of a bond by All India Quota seat candidates. The Prospectus for the years 2012-2013 issued by the Directorate of Medical Education, Chennai for admission to Post Graduate Degree/Diploma and other Courses contained in Clause 59(b) is as follows:
“STIPEND AND SECURITY AMOUNT:
59. (a) .......
(b) The Government of Tamil Nadu is offering Post Graduate Medical Education through its 10 Medical Colleges / Hospitals and Specialised institutes. The Government spends a large amount of money to impart Medical Education including Post-Graduate Medical Education. It levies nominal fees and at the same time provides a stipend to Private candidates and salary to Service candidates. It is natural that the Government desires to ensure that these seats are not wasted. Further, the Government looks forward to these Doctors who have undergone Post-Graduate training to serve the poor and the needy of this country at large and this State in particular. The public have the right to expect the Specialists to utilize the skills they acquired during their training for the benefit of the ________ Page 65 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch sick, the poor and the needy. To ensure that the services of trained Post Graduate Doctors are made available, an Undertaking is obtained from them at the time of their admission. It is sincerely, believed that this will discourage an attitude of not paying attention to those poor people at whose expense they have been educated.”
46. Service candidates have been imposed with a condition of serving the Government for five years from the date of passing of examinations, if they have less than five years after passing PG Degree/ Diploma courses. All service candidates had to undertake that they will serve the Government till superannuation. We are not concerned in these cases with service candidates, and it is confined only to non-service candidates. In Clause 59(f), the following condition is prescribed:
“59.(f) Non-service candidates who complete the following scarce specialities will have to work for a period of 5 years after passing the course, if the Government requires their services. They will be given salary on par with the salary of new recruits in the TNMS only. They should also furnish an undertaking to this effect at the time of joining the course.” ________ Page 66 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
47. Clause 59(g) further specifies the other conditions in this regard, which is extracted herein under:
“59.(g) Non-Service candidates shall execute a bond with three sureties for a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) on admission to Post Graduate Diploma courses and Rs.20,00,000 (Rupees Twenty Lakhs only) for Post Graduate Degree courses /MDS/ 6 year M.Ch. Neurosurgery Course of the 2012-2013 session with an undertaking that they serve the Government of Tamil Nadu for a period of not less than two 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 within a period of 2 years from the date of completion of their Postgraduate Degree/Diploma/MDS/6 year M.Ch.(Neurosurgery) Course Two sureties should be permanent Government servants the same or higher rank than the candidate. One surety should be the spouse/parent of the candidate. PAN numbers of the sureties should be furnished. The prescribed form of bond will be available in the Colleges at the time of admission. The bond will become infructuous if ________ Page 67 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch he/she serves the State Government of Tamil Nadu if required for minimum period of 2 years.”
48. Clauses 59(h) and (i) are also relevant for understanding the nature of the bond that has to be filled up and to be applied with, which are extracted herein under:
“59.(h) For any reason, if the candidate is unable to serve the Government for the above said period, the bond amount in total has to be credited to the relevant Head of Account as per Government rules in force.
(i) The Security bonds are governed by clause (c) under exemption under article of 57 of Schedule - I of the Indian Stamp Act of 1879. (Central Act II of 1879).
Hence the Security Bonds executed need not be stamped.”
49. The Prospectus for the year 2013-2014 contains almost similar conditions, which is also on record. The Prospectus for the year 2014-2015, with which we are presently concerned, contains the same Clauses, which are repeated on the same terms as extracted above. Then comes the Prospectus for the year 2015-2016, which again ________ Page 68 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch repeats the same terms. For this reference may be had to the Government Order in G.O.(D) No.58, Health and Family Welfare (ME) Department, dated 14.1.2015, issued by the State Government with regard to admissions of 2015-2015.
50. The Government had issued G.O. (Ms) No.92, Health and Family Welfare (ME) Department, dated 29.2.2016, in respect of the year 2016-2017, which is extracted herein under:
“ORDER:
The State is conducting Post Graduate Courses in various specialties with the view to provide specialized treatment to the public who come to Government Hospitals and also conducts Specialty Courses to train manpower to manage various Government Medical Institutions in Tamil Nadu. The Government incurs huge expenditure in conducting the courses. But the Government is charging only nominal fees from the candidates to increase the availability of trained manpower. The cost of education has been deliberately kept by Government at very low level to prevent post graduates being burdened with financial pre occupation. The candidates students are asked to execute bond wherein among others all Service ________ Page 69 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Candidates of Tamil Nadu having more than five years of service after passing the PG Degree / PG Diploma shall execute a bond for a sum of Rs.20,00,000/- (Rupees Twenty lakhs only) for P.G Diploma courses and Rs.40,00,000/- (Rupees Forty Lakhs only) for PG Degree and 6 years M.Ch. (Neurosurgery) Courses as security amount with an undertaking that they will serve the Government of Tamil Nadu till Superannuation. In case of Non-Service candidates they shall execute a bond with three sureties for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) on admission to Post Graduate Diploma courses and Rs.40,00,000/- (Rupees Forty Lakhs only) for Post Graduate Degree courses/6 year M.Ch. Neurosurgery Courses (as of 2016-2017) with an undertaking that they serve the Government of Tamil Nadu for a period of not less than two years (with regular scale of pay), in the place of posting issued by Government. This process is expected to nurture the post graduates into a lifetime of service. If the non- service candidates discontinue the course they have to pay the total amount of penalty and the stipend received. If the above candidates violate two year service obligation the bond can be enforced.
2. The Government is offering all such Speciality ________ Page 70 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch courses at a very low cost when compared to the Private Institutions. The prime objective of the Government is to provide specialized treatment to the poor people who are unable to afford the high cost involved in treatments outside Government institutions, and to increase the availability of skilled manpower. Inspite of execution of bond, many of the candidates after completion of the course neither work in Government Institutions nor pay the bond amount or absent themselves after a few days of work. The very purpose of the Government is defeated by the candidates who violate the bond condition resulting in considerable shortage of doctors in the Government Institutions, thereby depriving treatment to the poor patients of this State. The public also does not benefit from the services of such doctors.
3. After detailed examination of the issues mentioned in para 2 above, the Government direct that the original certificates of service and non-service Post Graduates be returned to them either after they have served the period (excluding the leave period) mentioned in the bond or on payment of the total amount mentioned in the bond (in lieu of the mandatory service obligation).
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4. The Government also direct the Director of Medical Education to act upon the guidelines in Annexure to this Government Order in respect of the candidates who are currently violating the bond conditions.” The contention of the petitioners is that even this government order does not indicate its applicability to the candidates against All India Quota.
51. The Prospectus for the year 2016-2017, repeats the same conditions as stipulated in the previous years without any deviation.
52. The writ petitioners contend that the change started commencing from 2017-2018 session, where for the first time the said provisions came to be re-introduced with modifications. Clause 37(c) thereof is in pari materia with Clause 56(b) extracted herein above. The change which was brought about is contained in Clause 37(f), Clause 37(g), Clause 37(h) and Clause 37(i), that are extracted herein under:
“XI. STIPEND AND SECURITY AMOUNT:
37. (a) to (e) ...
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(f) Non service candidates including candidates selected through 50% All India Quota will be paid stipend till the age of 58 years only. For Service candidates if their study period extends after superannuation (i.e. after 58 years) they will be given stipend on par with the non-service candidates.
(g) Non-service candidates including candidates selected through 50% All India Quota who complete the following scarce specialities will have to work for a period of 5 years after passing the course, if the Government requires their services. They will be given salary on par with the salary of new recruits in the TNMS only. They should also furnish an undertaking to this effect at the time of joining the course.
PG DEGREE / DIPLOMA
Non-Clinical Clinical
1) MD Pathology 1) MD Psychiatric Medicine
2) MD Physiology 2) MD Radio Diagnosis
3) MD Bio-Chemistry 3) MD Radiotherapy
4) MD Microbiology 4) MD Anaesthesia
5) MD Forensic Medicine 5) MD TB & Chest Diseases
6) MD Pharmacology 6) DMRD
7) MD Community Medicine 7) DMRT
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8) MD Anatomy
(h) Non-Service candidates including candidates selected through 50% All India Quota shall execute a bond with three sureties for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) on admission to Post Graduate Diploma courses 2017- 2018 session and Rs.40,00,000/- (Rupees Forty Lakhs only) on admission to Post Graduate Degree courses 2017-2018 session with an undertaking that they shall serve the Government of Tamil Nadu for a period of not less than two years, in the posting issued by Government, 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. The Government of Tamil Nadu will reckon their services within a period of 2 years from the date of completion of their Postgraduate Degree/ Diploma Course Two sureties should be permanent government servants in the same or higher rank than the candidate. One Surety should be the spouse/ parent of the candidate. PAN numbers of the sureties should be furnished. The prescribed form of bond is enclosed in annexure VIII. The bond will become in fructuous if he/she serves the State Government of Tamil Nadu if required for minimum period of 2 years.
________ Page 74 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch If non-service candidates discontinue the course they have to pay the total amount of penalty and the stipend received.
(i) For any reason, if the candidate is unable to serve the Government for the above said period, original certificates are retained by Government. The bond amount paid by the candidate in total has to be credited to the relevant Head of Account as per Government rules in force.”
53. For the year 2017-2018, the communication issued by the Director of Medical Education on 16.3.2017 again imposes the condition against All India Quota seats, which is as follows:
“I am to request you display following Bond details for Post Graduate Medical Degree/Diploma/MDS admission 2017-2018 session at news & events scrolling area in your website. www.mcc.nic.in.
'All candidates allotted to Post Graduate Degree/Diploma Courses in Tamil Nadu Government Medical Colleges under All India Quota 50% seats should execute a bond for a sum of Rs.40,00,000/-
________ Page 75 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch (Rupees Forty Lakhs Only) (Which may be revised later) for Degree Courses, a sum of Rs.20,00,000/- (Rupees Twenty Lakhs Only) (Which may be revised later) for Diploma Courses with three sureties with an undertaking that they will serve for the Government of Tamil Nadu for a period of not less than two years in the posting issued by Government, otherwise original certificates will be retained till the bond amount is recovered."
54. On 14.7.2017, the Director of Medical Education issued the following instructions in respect of All India Quota Post Graduate candidates, for obtaining an undertaking on a hundred rupees stamp paper:
“Ref No.51829/ME II/1/2017 Directorate of Medical Education, Kilpauk, Chennai – 105.
Dated 14.07.2017 Sub : Medical Education – Returning of Original Certificates to All India Quota Post Graduate candidates – instructions issued – Regarding.
**** All the Deans of Government Medical Colleges are instructed to return the original certificates to the students selected to undergo Post Graduate Course under ALL INDIA QUOTA Post Graduate Diploma/Degree Course after obtaining an undertaking in a Rs.100/- stamp paper to the value of Rs.100/- stating that, ________ Page 76 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch “On completion of my ............... course, I am ready to follow the conditions laid down in the Prospectus and as such I am receiving all my original certificates on the strength of the above undertaking given by myself”.
1. Address for communication -
2. E-mail id -
3. Phone Number -
Mobile Number -
Landline Number -
4. Aadhaar Number -
5. PAN Card Number -
Sd./ A.Edwin Joe
Director of Medical Education
/True copy / Forwarded
Sd/- xxx
Deputy Director of Medical Education”
55. This was followed by a clarification on 17.7.2017 that the original certificates should be returned only to the students selected under All India Quota without insisting on the undertaking, which is extracted herein under:
“Ref No.51829/ME II/1/2017 Directorate of Medical Education, Kilpauk, Chennai – 105.
Dated 17.07.2017 Sub : Medical Education – Returning of Original Certificates to All India Quota Post Graduate candidates – instructions issued – Regarding.
________ Page 77 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Ref : This office letter Ref.No.51829/MEII/1/2017 Dated 14.07.2017.
**** In continuation of this office letter cited, all the Deans of Government Medical Colleges are instructed to return the original certificates only to the students selected under All India Quota without insisting on the undertaking.
Sd./ A.Edwin Joe Director of Medical Education /True copy / Forwarded Sd/- xxx Deputy Director of Medical Education”
56. Narrating the aforesaid chronology of events, as also the contention that the All India Quota seats which were earlier excluded from the applicability of the conditions of the bonds, it is the case of the writ petitioners that it is evident that the said condition in respect of All India Quota seats consciously was omitted earlier and was imposed for the first time in the session 2017-2018, in respect of which, a clarification was issued by the Director of Medical Education on 17.7.2017. This clarification excluded All India Quota candidates from filling up of such bonds for admission in the session 2017-2018. Applying deductive logic, the contention of the learned counsel for the petitioners is that the Government never intended to impose ________ Page 78 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch conditions on the All India Quota candidates prior to the admission year 2017-2018 and therefore, all the writ petitioners are entitled to return of their original certificates or else, the action will be discriminatory and arbitrary thereby violating Article 14 of the Constitution of India.
57. On the issue of filling up of the bonds by them with the aforesaid condition of return of original certificates, the contention of learned counsel for the writ petitioners is that such bonds came to be filled up after they had been granted admission and in one of the writ petitions, bonds had not been filled up. It is therefore submitted that the same cannot be made as a condition precedent for denying the relief, which has already been extended by the learned Single Judge under the impugned judgment dated 1.10.2018. It is further submitted that the plight of these writ petitioners is enormous, inasmuch as they have waited in the wings to get employment and having not been offered employment, there is no justification for the State Government to enforce this condition and retain the certificates under the garb of their executive power, which they trace to either G.O.Ms.No.92, dated 29.2.2016, or even later on, on account of the ________ Page 79 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch express waiver extended by the Director of Medical Education on 17.7.2017. It is also urged that the Government Orders issued on 29.2.2016 and thereafter do not have retrospective effect, inasmuch as all the writ petitioners were admitted as students much prior to the session 2015-2016.
58. There is one fact which needs to be clarified at this stage. All these arguments which have been advanced and summarized on the basis of the documents filed through different typed set of papers by the respective parties and the judgments do not find place in the impugned judgment of the learned Single Judge dated 1.10.2018 and has been developed during the hearing of this writ appeal. However, affidavits have been filed by the State as against some of the writ petitions, but there is a dispute about the filing of the counter-affidavit and additional counter-affidavit before the learned Single Judge in the writ petition, which has given rise to the filing of W.A.No.799 of 2019. On the one hand, the State has come up contending that counter- affidavit was handed down in Court itself and had been served on the respondents, which has been vehemently denied in the reply affidavit filed by learned counsel for the respondents petitioners. It is urged by ________ Page 80 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch them that no such counter-affidavit or additional counter-affidavit was filed, nor is it on record. The fact that no counter-affidavit was filed is recorded in the Division Bench judgment dated 23.4.2019 while dismissing the appeal and the same fact is reiterated in the Review judgment while recalling the said judgment. The Court will, therefore, go by the record and presume that the counter-affidavit which is stated by the State to have been filed does not appear to be correct. We had also called for the bundle of the original writ petition and we could not gather from the same as to whether the counter-affidavit was handed down in Court and place on record or not. The State may have prepared it but may not have filed it.
59. The fact, however, remains that we have given full opportunity to the parties before us to canvass their arguments and place their documents, which have been filed by the State as well as by the petitioners, who have filed an additional typed set of papers and have brought on record all the relevant documents that have been referred to herein above for the purpose of resolving this controversy. We would therefore like to put it on record that the case was not handled properly, nor all these aspects and the arguments, and even ________ Page 81 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the documents relied on by the petitioners were not taken note of by the learned Single Judge in the writ petition. Nonetheless all the arguments now advanced have been assembled together as recorded by us herein above and we are now proceeding to consider the impact of all the aforesaid submissions, keeping in view the ratio of the judgment in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra).
60. This entire bunch of cases is in respect of candidates who have availed of Post Graduate studies, either Degree or Diploma, against All India Quota seats. The past litigation which sheds light on the genesis of the dispute needs to be briefly narrated so as to understand the foundation of the arguments on behalf of the candidates. A learned Single Judge way back in the year 2008 in W.P.No.17203 of 2008, vide order dated 20.11.2008, issued directions for return of original certificates deposited by the candidate at the time of the admission to the course. The said writ petition was allowed on the ground that the petitioner therein had not violated the terms and conditions stipulated in the bond and that there was no such condition stipulated for withholding of the certificates. The State of Tamil Nadu ________ Page 82 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch filed W.A.No.1444 of 2008, that was dismissed on 11.11.2011 (State of Tamil Nadu v. Dr.V.Seethalakshmi) by the following judgment:
“This writ appeal has been filed against the order dated 20.11.2008 passed by this court in W.P.No.17203/2008, which was filed to issue a writ of mandamus directing the third respondent therein to return the original certificates deposited by the petitioner at the time of admission to the course, along with course completion certificate, conduct certificate, provisional pass certificate and Degree / Diploma certificate, as requested in the letter dated 02.05.2008.
2. The respondent herein is a Medical Practitioner.
After successfully completing her M.B.B.S. Degree Course, she applied for admission to M.D Course in Dermatology, Venerology & Leprosy in the third appellant college for the academic years May 2005 to March 2008 through Tamil Nadu Post Graduate Entrance Exam. At the time of admission into the said course, she submitted all her certificates, as required by the third appellant. On completion of the course, she requested the third appellant for return of all her original certificates, for which, there was no response. Therefore, she filed W.P.No.17203/2008 seeking for ________ Page 83 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the relief referred to above. A learned Single Judge of this court, allowed the writ petition and directed the appellants herein to return the certificates / documents sought for by the respondent herein. Challenging the said order, the appellants have filed the present writ appeal.
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.
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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 conditions 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 ________ Page 85 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch 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. No costs. Connected miscellaneous petition is closed.”
61. Another learned Single Judge had delivered a similar judgment for the academic session 2010-2011 in W.P.No.1052 of 2013, against which the Dean of Tanjavur Medical College has filed W.A.No.2248 of 2013. The same was again dismissed following the judgment in the case of W.A.No.1444 of 2008. The said judgment dated 9.2.2013 is extracted herein under:
“This Writ Appeal is directed against the order, dated 17.1.2013 in W.P.No.1052 of 2013, whereby and whereunder the learned Single Judge was pleased to direct the appellant to return the original certificates retained by them.
2.The respondent joined the Post Graduate course in M.D. (Anesthesia) during the academic year 2010-
2011. The course was for a period of two years. The respondent executed a bond with an undertaking that he would serve the Government of Tamil Nadu for a ________ Page 86 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch period of two years. The respondent completed the course. However, he failed to serve the Government as per the conditions of bond. The appellant did not return the original certificates on account of violation of essential conditions of bond.
3.The respondent and others filed writ petitions in W.P.Nos.1052 to 1056 of 2013. The learned Single Judge having found that similar orders were passed earlier and those orders were upheld by the Division Bench in W.A.Nos.1444 of 2008, allowed the writ petitions and a mandamus was issued to return the original certificates to the respondent. The said order is under challenge.
4.We have heard the learned Special Government Pleader (Education) on behalf of the appellant.
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.
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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.”
62. There is a significant disclosure made by the State in the review petition filed by it, that was allowed restoring the present proceedings to be heard. In the grounds of the review petition, ground No.8 is relevant and the same is extracted herein under:
“8. It is humbly submitted that based on the orders passed by the Court in W.A.No.1444/2008, the Govt. in their letter No.37559/MCA1/2012-3, Health and Family Welfare Department dated: 03.07.2014, have approved release of all certificates to the All India Quota Post Graduates and Non-service Post Graduates of State Quota who have completed their courses immediately.” ________ Page 88 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
63. Further, in ground No.2, the following statement has been made:
“As there was no condition that the Post graduates students selected under All India Quota in the academic year 2014-2015 Prospectus have to undergo 2 years of bond service after the completion of their respective courses, the Court had directed to release the original certificates to the candidates selected under All India Quota. The Principal Secretary to Government, Health and Family Welfare Department, Chennai has been issued oral instructions to release the original certificates to the Post graduates students selected under All India Quota and who have completed their course in 2017.”
64. It has been reiterated as under in the grounds of review petition:
“.... The candidates who had been admitted to the Post Graduate courses in 2014 and subsequently completed their course in 2017 are not bound by the above said G.O. and D.O. letter and hence the Director of Medical Education had issued the circular dated: 17.07.2017 to the Deans of Government Medical Colleges to return the original certificates only to the students selected ________ Page 89 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch under All India Quota without insisting on the undertaking.”
65. One Resident Doctor from Orissa moved an application under the Right to Information Act, 2005 seeking clarification from the Ministry of Health and Family Welfare, Government of India, on this issue, to which the reply given is extracted herein under:
“Govt of India Nirman Bhawan, New Delhi Ministry of Health & Family Welfare Phone No. 011-23063566 Directorate of General Health Services Right to Information File No. 2.28014/68/2015-MEC Dated: 28-7-2015 To Shri Suresh Kumar K Room No.1 Resident Doctors Hostel PG Chowk, Vimsar, Buria Sambalpur, Odisha Sub: Seeking Information under RTI Act 2005 by Shri Suresh Kumar K.. Odisha Sir I am directed to refer to your online RTI Application with Registration No. MOHFW/R/61712 dated 19-6-2015 received in this office on 27.07.2015 through Amit Biswas, Under Secretary, ________ Page 90 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Medical Education, IV Section, Ministry of Health & Family Welfare vide their better U-12023/36/2015-Me-IV dated 22-7-2015 regarding the subject matter in this connection, the reply of your RTI application is as under:
S.No Question Reply
1. Can State Government Any additional State
enforce additional conditions pertaining to bond/rural
especially bond/ compulsory services shall not be
peripheral rural service on applicable to All India
All India Quota Students candidates as per the
secured admission through Hon'ble Supreme Court
National All India Post directions. It is not open
Graduate Medical to any State to fix any
Examination with special additional eligibility
reference to Hon'ble criteria in case of the
Supreme Court Verdict dated candidates who fall
27-7-2001 in I.A No.9-13 in under the All India
Civil Appeal No.1944 of 1993 Quota vide its order
(Anand S.Biji v. V State of dated 27-12-2001 in
Kerala) I.A.9-13 in Civil Appeal
No.1944 of 1993 (Anand
S. Biji v. State of
Kerala)
2. Does the above Verdict have Yes, the above verdict has any relevance today relevance today. No one can violate the verdict. If in implementation of the scheme any difficulties are felt by the Directorate General of Health Services or by any person/ institution/States or desire to change any modification in the scheme, they may approach the Hon'ble Supreme Court of India for necessary directions.
________ Page 91 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Yours faithfully sd/-
Prof. Dr.B.Srinivas Asst. Director General-ME”
66. This communication in respect of All India Quota candidates indicates that the State could not fix any additional eligibility criteria, and for which reliance has been placed on the order dated 27.12.2001 passed by the Apex Court in the case of Anand S. Biji v. State of Kerala.
67. The petitioners through the counter affidavit filed by the 195th respondent, Vasanth Karthikeyan, in W.A.No.799 of 2019, in paragraph (16) have taken the following stand:
“16. I further submit that the 1st appellant authority vide their letter dated 5-2-2016 had categorically admitted the following:
'3. However, the candidate selected under All India Quota have contended that they have been selected and admitted to the PG Courses under All India Quota, as per the prospectus issued by National Board of Examination and that they need not follow the bond condition in ________ Page 92 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the prospectus issued by The State Government. While implementing the bond conditions in respect of the above candidates, the Hon'ble court also pronounces in their favour, quoting above reason, in the litigations filed by these candidates.' The above claim of the 1" appellant makes it clear that the conditions imposed in the state prospectus upto the year 2016 is not applicable to the candidates who had taken admission till then under All India Quota. It is pertinent to note here that these respondents were admitted to various Medical Colleges during the years, 2014 & 2015 based on the prospectus issued for AIPGMEE 2014 & 2015 and thus the conditions imposed in the state prospectus is not relevant and applicable to these respondents. Hence the retention of the original certificates of these respondents by the appellant authorities is illegal and not sustainable in the eyes of law.”
68. The petitioners have then urged that no such condition was imposed in respect of the admission sessions 2014-2015 and 2015- 2016 with which the present dispute is concerned and, therefore, the ________ Page 93 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch All India Quota seat candidates, even though had filled up bonds, the certificates could not be retained on account of the said clarifications and further the introduction of this condition for All India Quota seats came subsequently in the year 2017, which the respondents have consciously applied from the session 2017-2018. There is no material so as to gather any statutory support either by way of a notification or any directive so as to allow the respondents to enforce the conditions of the bond on the candidates for these two sessions. It is their contention that the letter dated 5.2.2016 or the government order dated 29.2.2016, which is now being canvassed by the State to be applicable from session 2015 onwards is a misconceived argument, as the said Government Order cannot apply retrospectively for the two sessions which are in question.
69. The Government Order in G.O.(D) No.58, Health and Family Welfare (ME) Department, dated 14.1.2015 is extracted herein under:
“ABSTRACT Medical Education - Selection Committee - Draft Policy / Prospectus for admission candidates to Post Graduate Degree / Diploma / 6 Years M.Ch. (Neuro Surgery) for the ________ Page 94 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch academic year 2015-2016 - Approved - Orders - Issued. ================================== HEALTH AND FAMILY WELFARE (ME) DEPARTMENT G.O. (D) No.58 Dated 14.01.2015 Thiruvalluvar Aandu 2045 Jaya, Margazhi – 30 Read:
From the Director of Medical Education letter Ref. No.3716 / SCSI(1) / 2014 dated 11.12.2014 **** ORDER:
The Director of Medical Education in her letter read above has sent the draft Policy / Prospectus for admission of candidates to Post Graduate Degree / Diploma / 6 Years M.Ch. (Neuro Surgery) Courses for the academic year 2015- 2016 with certain modifications in the Policy / Prospectus of previous year and the tentative schedule for selection and admission of candidates and has requested the approval of Government.
2. The Government after careful consideration have decided to accept the modifications suggested by the Director of Medical Education and accordingly approve the Policy / Prospectus for selection and admission of candidates to Post Graduate Degree / Diploma / 6 years M.Ch. (Neuro Surgery) courses for the academic year 20152016 A copy of the approved Policy / Prospectus is annexed to this order.
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3. The Director of Medical Education is directed to take necessary action accordingly.
(BY ORDER OF THE GOVERNOR) J. RADHAKRISHNAN SECRETARY TO GOVERNMENT”
70. To fortify their contentions, they have heavily relied on the impact of the communications dated 14.7.2017 and 17.7.2017 which have been extracted herein above, issued by the Director of Medical Education, Mr.A.Edwin Joe, whereby an undertaking was sought from the Post Graduate course candidates under All India Quota on a hundred rupee stamp paper, which was withdrawn by the letter dated 17.7.2017.
71. Thus, the sum and substance of the argument on behalf of the candidates is that there was no precondition of filling up of a bond, and on the other hand, the clarification issued by the Government of India, coupled with the judgments referred to above, categorically prevented the State from imposing the condition of bonds on the candidates who had been admitted under the All India Quota category. ________ Page 96 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch For this, they have also relied on the admissions made by the State Government as reproduced in paragraphs 62 to 64 herein above.
72. At this stage, it is necessary to sort out the legal status as well as the factual foundation that has been laid by the petitioners in this regard. The legal issue by way of declaratory law, in our opinion, is no longer res integra with the clear mandate of the Apex Court in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra). Paragraph 5.5 of the judgment reflects the submissions relating to candidates admitted from the All India Quota, who had raised a similar plea before the High Court of Karnataka, and had been rejected. Even though the said line of argument has not been categorically answered separately for All India Quota candidates, but while dealing with the issues and the arguments raised in relation to the judgment arising from the State of Karnataka, there is no indication of the judgment of the Karnataka High Court having been set aside, or any exemption granted in respect of All India Quota candidates. This issue, therefore, in our opinion was under direct consideration of ________ Page 97 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the Apex Court, which did not draw any distinction between the candidates against State seats and All India Quota seats for the purpose of applying the condition of execution of bonds or return of certificates. We say this because paragraph (1) of the judgment, which has been extracted herein above, also demonstrates that a direction had been sought therein for return of the original certificates and other documents after completion of the Specialty courses concerned. This relief has not been granted and the only concession extended by the Apex Court was an observation for the Union of India and the Medical Council of India to adopt a uniform policy in this regard. Learned counsel for the Medical Council of India has already brought on record the proceedings that have been extracted above. Thus, it cannot be said that the Apex Court had not been approached for similar reliefs as involved herein.
73. Apart from this, keeping in view the law declared on all the issues relating to the jurisdiction of the State Government, violation of fundamental rights, contract of personal service and restraint on profession, the Apex Court has categorically held that ________ Page 98 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch such conditions are valid, reasonable and the State has the authority to impose such conditions. The arguments which on the legal plane have been advanced on behalf of the writ petitioners before us, therefore, in our opinion, stand squarely answered by the aforesaid pronouncement of the Apex Court in Association of Medical Superspeciality Aspirants and Residents and others (supra), which is declaratory in nature and also binding under Article 141 of the Constitution of India.
74. However, on facts as stated above, the State Government did create a confusion, firstly by not mentioning the All India Quota candidates in the government orders that were issued for the year 2015-2016 or 2016-2017. Even the 2014-2015 prospectus did not contain any such condition specifically, which has been admitted by the State Government in the grounds of review extracted herein above. But, what is significant is that in paragraph (16) of the counter affidavit of the 195th respondent, it has been categorically stated as follows:
“16. ........... It is pertinent to note here that these ________ Page 99 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch respondents were admitted to various Medical Colleges during the years, 2014 & 2015 based on the prospectus issued for AIPGMEE 2014 & 2015 and thus the conditions imposed in the state prospectus is not relevant and applicable to these respondents. Hence the retention of the original certificates of these respondents by the appellant authorities is illegal and not sustainable in the eyes of law.”
75. This averment in the counter affidavit does not appear to be correct, in as much as in the Information Bulletin for All India Post Graduates Medical Entrance Examination (AIPGMEE 2014) conducted by the National Board of Examinations, which has been filed along with the Index of Typed Set of papers in Review Petition No.111 of 2019, there is a compilation of Frequently Asked Questions (FAQ) for All India Quota Post Graduate Medical Seats 2014. It has been pointed out by the learned Additional Advocate General, as also by the learned counsel for the Medical Council of India, that question No.30 came to be answered in the following terms:
________ Page 100 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Q.No.30 What about condition of Stipend/fee structure/course duration/bond amount/rendering of service in rural/tribal areal other conditionalities.
Ans: Stipend fee structure/ course duration / bond amount / rendering of service in rural/tribal area/ other conditions etc. may vary from State to State and Institute to Institute. Some seats may be approved/ permitted but not yet recognised by MCI. The allotment made through online allotment process will be firm and final as per Hon'ble Supreme Court's guidelines. Therefore, the candidates should well examine these points before opting for a seat at a medical college. The Medical Counseling Committee (MCC) shall neither be responsible nor shall entertain any case on above grounds, if any. The information received from various participating Medical Colleges will be made available on Ministry of Health & Family Welfare website (under the Medical Counseling-Post-
graduate Counseling 2014 - Information about college, fee, bond information etc.) before commencement of 50% All India PG Counseling 2014. Candidates are ALSO advised to visit the website of college/ institution to check the information. In case they require any additional ________ Page 101 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch information, they can contact the college / institution on telephone.”
76. We find force in the submissions of the learned counsel for the State and the Medical Council of India that the said Bulletin and prospectus clearly state that the candidates have to visit the website of the College/institution to check the information and they will examine the points before opting for a seat at a Medical College. It is urged that since the question was specific, it was clearly answered that they will have to refer to the terms and conditions as well as admission conditions of the respective medical colleges, where they opt for seats. It was further made open to them to seek any clarification from the said institutions.
77. In this background, what we find is that even if the Government Order dated 14.1.2015, which is the source of authority of the prospectus issued by the State, may not mention specifically about the All India Quota candidates, it does not even exclude them by any specific recital. It is only by inference that the ________ Page 102 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch candidates have come forward saying on the basis of clarification issued by the Government of India and the conduct of the State in releasing certificates in the past and the communication dated 17.7.2017 that the claim is being set forth that they are entitled to a similar treatment. It cannot be ignored that in spite of this, all the writ petitioners and candidates had duly filled up their bonds, which fact has not been disputed by them. It is only after entry and having taken admission in the respective medical colleges, and upon passing out that these disputes were sought to be raised in the manner aforesaid.
78. We, therefore, find that there was sufficient caution to all the candidates about the terms and conditions of admission which they had to verify from the respective institutions, and in the present cases, all the candidates have consciously and voluntarily filled up the bonds and have pursued their courses of study. The execution of such bonds has been found to be valid on principles by the Apex Court in the judgment referred to above. ________ Page 103 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
79. It is at this stage that the bond and the declaration filled up by the petitioners deserve to be illustrated. The bond filled up by two of the candidates, one who sought admission in Government Kilpauk Medical College, and the second in Madras Medical College, by one Dr. Lohit Sai.K and Dr.Nishant Kumar Sahu in the course of M.S. General Surgery and M.D. Psychiatry respectively are extracted herein under:
“AGREEMENT BOND FOR CANDIDATES ADMITTED TO M.S.(GENERAL SURGERY) COURSE 2015-2018 SESSION THIS DEED OF BOND IS EXECUTED AT KILPAUK MEDICAL COLLEGE ON THIS DAY OF 30.05.2015 BY NAME: Dr.Lohit Sai K S/O. K.Vasu Babu RESIDING AT (PERMANENT ADDRESS): House No.9, Plot No.24, Gem Nagar Extn., Sevilimedu, Kanchipuram – 631 502. (TEMPORARY ADDRESS) - do -
LAND LINE PHONE NO: 044-27238438 MOBILE NO: 9894984103 Email id: [email protected] TO IN FAVOUR OF GOVT. KILPAUK MEDICAL COLLEGE ________ Page 104 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch WHEREAS the Party of the FIRST PART have applied for admission to M.S. (Gen. Surg) course and the Party of the FIRST PART has been selected to the said course.
As per the Prospectus, the Party of the FIRST PART has agreed to serve the Government of Tamil Nadu till superannuation (For Service Candidates) and for a period of not less than Two years (For Non Service Candidates) after successful completion of the M.S. (General Surgery) course and on such failure of not completing the full bond period of Two years, the Party of the FIRST PART shall forthwith pay a sum of Rs.40,00,000 (Rupees Forty Lakhs Rupees only).
During the above period, the Party of the FIRST PART (For Non Service Candidates) shall be paid stipend and the Government of Tamil Nadu will requisition their services, if required, within a period of 2 years from the date of completion of the M.S. (Gen. Surgery) course.
AND WHEREAS for the better protection of the Government, the Party of the FIRST PART has agreed to execute the bond with 3 sureties who are Income Tax assesses to stand guarantee for the above said amount of Rs.40,00,000 (Rupees Forty Lakh Rupees only).
AND WHEREAS the Party of the FIRST PART have also ________ Page 105 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch agreed that on successful completion of the M.S. (Gen. Surg) course his/her certificates relating to M.S. (Gen. Surg) course will not be given to the Party of the FIRST PART unless the Party of the FIRST PART successfully completes the bond period of Two years or pay to the Governor of Tamil Nadu his successors and assignees (hereinafter called “The Government”) on demand the sum of Rs.40,00,000/- (Rupees Forty Lakh rupees only) and on such defualt together with interest at Government rates thereon from the date of demand on the said amount. The Party of the FIRST PART Dr.Lohit Sai K. or his/heir legal heirs, executors and administrators shall forthwith pay to the Government on demand the said sum of Rs.Rs.40,00,000/- (Rupees Forty Lakh rupees only) together with interest from the demand at Government rate in force on Government Loan.
AND WHEREAS the Government have at the request of the Party of the FIRST PART Dr.Lohit Sai K. Post Graduate granted stipend to him/her for aperiod of 36 months with effect from 30.05.2015 in order to enable him to study at Government Kilpauk Medical College. AND WHEREAS if the Party of the FIRST PART Dr.Lohit Sai K works for a period of less than 36 months during the M.S. (Gen. Surg) course, the proportionate amount will be treated as stipend and the Party of the FIRST PART Dr.Lohit Sai K shall pay back in addition to the security amount of ________ Page 106 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Rs.40,00,000/- (Rupees Forty Lakh rupees only) the balance amount of stipend to the Government.
AND WHEREAS if the Party of the FIRST PART Dr.Lohit Sai K. discontinues the course at any time before the completion of the M.S. (Gen. Surg.) Course the Party of the FIRST PART shall pay back in total, amount received as stipend and the appropriate discontinuation fee in total as prescribed in the Prospectus of the year of joining the Course together with interest from the demand at Government rate in force on Government Loan. AND upon the Party of the FIRST PART Dr.Lohit Sai K. or 1. K.Vasu Babu or 2. M.Padmavathi or 3. J.Mohan The sureties aforesaid making such payment, the above written bond shall be void and be of no effect, otherwise it shall remain in force and virtue.
PROVIDED always that the liability of the sureties hereunder shall not be impaired or discharged by reasonable time being granted or by any forbearance, act or omission of the Government or any person authorized by them (Whether with or without the consent knowledge of the sureties) nor shall it be necessary for the Government to sue the Party of the FIRST PART before suing the sureties
1.Mr.K.Vasu Babu
2.M.Padmavathi 3.J.Mohan Or any of them for amount due hereunder ________ Page 107 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch This bond shall in all respects be governed by the Laws of India, for the time being in force, and the rights and liabilities shall where necessary be accordingly determined by the appropriate courts in India. This bond is exempted from the stamp duty under Article 57 of Schedule-I of the Indian Stamp Act, 1899 (Central Act II of 1899) NOW THE DEED OF INDEMNITY BOND WITNESSES AS FOLLOWS:
1. The Party of the FIRST PART has agreed to serve the Government of Tamil Nadu Medical Services for a period of 2 years on successful completion of the M.S. (Gen. Surg.) course and in the event of default the Party of the FIRST PART shall pay forthwith a sum of Rs.40,00,000 (Rupees Forty Lakhs only) to the Government of Tamil Nadu Medical Services.
2. For the aforesaid amount of Rs.40,00,000 (Rupees Forty Lakhs only) the Party of the FIRST PART has brought 3 sureties and it should stand alive till successful completion of the Two years bond period with the Government by the Party of the FIRST PART Or in the event of such default till payment of Rs.40,00,000 (Rupees Forty Lakhs only) is paid to the Government of Tamil Nadu Medical Services.
3. The Party of the FIRST PART agrees that till the successful completion of the period of Two years, service to the Government of Tamil Nadu or till the payment ________ Page 108 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch of Rs.40,00,000 (Rupees Forty Lakhs only) is paid the certificates relating to M.s. (Gen. Surgery) course shall be in the custody of the Party of the Second Part College and the Government has a first lien over all the certificates gained by the candidate at the time of admission.
The Party of FIRST PART authorizes for retention of the certificates till the lien is cleared / discharged. Signed and Dated at KMC, Chennai on this the 30th day of May 2015.
Signed and delivered by the Party of the FIRST PART DR.
LOHIT SAI K.
Signature of the Candidate Sd/-
In the presence of
Witness 1 Witness 2
Name : M.Padmavathi Name : J.Mohan
Address: No.28, Kanniappanaga No.112, Thiruvalluvar Street Shanmuga Nagar Extension Barathi Nagar, Selaiyur Kancheepuram – 631 502. Chennai – 600 073.
Signature sd/- Signature sd/-
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Signed and delivered by the Surety K.Vasu Babu (Father)
Signature of the Surety with seal (Sd/-) xxx In the presence of Witness 1 Witness 2 Name : M.Padmavathi Name : J.Mohan Address: No.28, Kanniappanaga No.112, Thiruvalluvar Street Shanmuga Nagar Extension Barathi Nagar, Selaiyur Kancheepuram – 631 502. Chennai – 600 073.
Signature sd/- Signature sd/-
Signed and delivered by the Surety M.PADMAVATI (PAN No.AVIDPP8091Q) Signature of the Surety with seal (Sd/-) xxx In the presence of Witness 1 Witness 2 Name : K.Vasu Babu Name : J.Mohan Address: House No.9, Plot No.24 No.112, Thiruvalluvar Street Gem Nagar Extn, Sevilimedu Barathi Nagar, Selaiyur Kancheepuram – 631 502. Chennai – 600 073.
Signature sd/- Signature sd/-
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Signed and delivered by the Surety J.MOHAN (PAN No.BKHPM0287R) Signature of the Surety with seal (Sd/-) xxx Witness 1 Witness 2 Name : K.Vasu Babu Name : M.Padmavathi Address: House No.9, Plot No.24 No.281, Kanniappa Nagar Gem Nagar Extn, Sevilimedu Shanmuga Nagar Extn. Kancheepuram – 631 502. Kancheepuram-631 502.
Signature sd/- Signature sd/-
ACCEPTED
For and behalf of any of the order and direction of the Government of Tamil Nadu Date Dean Station Medical College PROFORMA
1. Name of the Candidate : DR. Lohit Sai K.
2. Name of the Institution : NA and place where he was worked at ________ Page 111 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
3. Designation : NA
4. Name of the PG course : M.S.(GENERAL SURGERY)
5. Duration of the course : 3 years
6. Date of Joining the : 30.05.2015 Course
7.Whatever Service/ : Non Service Non Service Candidate
8. If service candidate : NA date of joining service
9. Total service prior to : NA joining the course
10. Permanent Address : House No.9, Plot No.24 Gem Nagar Extn. Sevilimedu Kanchipuram – 631 502.
DECLARATION I hereby declare that the above particulars are true to the best of my knowledge and I have executed / prescribed the bond, if the particulars furnished above are incorrect, I will remit back the stipend amount paid to me with interest thereon.
Date : 30.05.2015 Station : KMC, Chennai-10 SIGNATURE OF THE CANDIDATE” “AGREEMENT BOND ________ Page 112 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch FOR CANDIDATES ADMITTED TO MD Psychiatry courses for 2015-2016 SESSION This DEED OF BOND IS EXECUTED AT CHENNAI ON THIS DAY OF 19.10.2015 BY NAME : NISHANT KUMAR SAHU RESIDING AT : Shri J.L.Sahu (PERMANENT ADDRESS) 62-A, G-Pocket, Maroda Sector Bhilai, District Durg, Chhathisgarch 450006 TEMPORARY ADDRESS : Flat T, III Floor, 108, Sanyasipuram II st., Kilpauk, Chennai-10.
LAND LINE PHONE NO. : 0788 – 2271113
MOBILE NO . : 8109596101
Email ID : [email protected]
TO IN FAVOUR OF MADRAS MEDICAL COLLEGE WHEREAS the Party of the FIRST PART have applied for admission to MD PSYCHIATRY course and the Party of the FIRST PART has been selected to the said course. As per the prospectus, the Party of the FIRST PART has agreed to serve the Government of Tamil Nadu till superannuation (For Service Candidates) and for a period of not less than Two years (For Non Service Candidates) after ________ Page 113 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch successful completion of the MD PSYCHIATRY course and on such failure of not completing the full bond period of Two years, the Party of the FIRST PART shall forthwith pay a sum of Rs.40,00,000 (Rupees FORTY LAKHS only). During the above period, the Party of the FIRST PART (For Non Service Candidates) shall be paid stipend and the Government of Tamil Nadu will requisition their services, if required, within a period of 2 years from the date of completion of the MD PSYCHIATRY course. AND WHEREAS for the better protection of the Government, the Party of the FIRST PART has agreed to execute the Bond with 3 sureties who are the Income Tax assessees to stand guarantee for the above said amount of Rs.40,00,000 (Rupees Forty Lakhs only) AND WHEREAS the Party of the FIRST PART have also agreed that on successful completion of the MD PSYCHIATRY course his / her certificates relating to MD PSYCHIATRY course will not be given to the Party of the First Part unless the Party of the FIRST PART successfully completes the bond period of Two years or pay to the Governor of Tamil Nadu his successors and assignees (hereinafter called “The Government”) on demand the sum of Rs.40,00,000/- (Rupees Forty Lakhs only) and on such default together with interest at Government rates thereon from the date of demand on the said amount. The party of ________ Page 114 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the FIRT PART DR. NISHANI KUMAR SAHU or his / her legal heirs, executors and administrators shall forthwith pay to the Government on demand the said sum of Rs.40,00,000 (Rupees Forty Lakhs only) together with interest from the demand at Government rate in force on Government Loan.
AND WHEREAS the Government have, at the request of the Party of the FIRST PART DR. NISHANI KUMAR SAHU employed as PG in MD PSYCHIATRY granted stipend to him / her for a period of 24 / 36 months with effect from 30.05.2015 in order to enable him / her to study at MADRAS MEDICAL College.
AND WHEREAS if the Party of the FIRST PART DR.NISHANI KUMAR SAHU works for a period of less than 24 / 36 months during the MD PSYCHIATRY course, the proportionate amount will be treated as stipend and the Party of the FIRST PART DR. NISHANI KUMAR SAHU shall pay back in addition to the security amount of Rs.40,00,000 (Rupees Forty Lakhs only) the balance amount of stipend to the Government.
AND WHEREAS if the Party of the FIRST PART DR. NISHANI KUMAR SAHU discontinues the course at any time before the completion of the MD PSYCHIATRY Course the Party of the FIRST PART shall pay back in total amount received as stipend and the appropriate discontinuation fee in total as ________ Page 115 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch prescribed in the Prospectus of the year of joining the Course together with interest from the demand at Government rate in force on Government Loan. AND upon the Party of the FIRST PART DR. NISHANI KUMAR SAHU or 1.Mr.J.L.Sahu or 2.Dr.Krishna Kumar or
3.Dr.Akhilesh Yadav The sureties aforesaid making such payment, the above written bond shall be void and be of no effect, otherwise it shall remain in force and virtue.
PROVIDED always that the liability of the sureties hereunder shall not be impaired or discharged by reasonable time being granted or by any forbearance, act or omission of the Government or any person authorized by them (Whether with or without the consent knowledge of the sureties) nor shall it be necessary for the Government to sue the Party of the FIRST PART before suing the sureties
1.Mr.J.L.Sahu
2.Dr.Krishna Kumar 3.Akhilesh Yadav Or any of them for amount due hereunder This bond shall in all respects be governed by the Laws of India, for the time being in force, and the rights and liabilities shall where necessary be accordingly determined by the appropriate courts in India. This bond is exempted from the stamp duty under Article 57 of Schedule-I of the Indian Stamp Act, 1899 (Central Act II of 1899) ________ Page 116 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch NOW THE DEED OF INDEMNITY BOND WITNESSES AS FOLLOWS:
1. The Party of the FIRST PART has agreed to serve the Government of Tamil Nadu Medical Services for a period of TWO YEARS on successful completion of the MD PSYCHIATRY course and in the event of default the Party of the FIRST PART shall pay forthwith a sum of Rs.40,00,000 (Rupees Forty Lakhs only) to the Government of Tamil Nadu Medical Services.
2. For the aforesaid amount of Rs.40,00,000 (Rupees Forty Lakhs only) the Party of the FIRST PART has brought 3 sureties and it should stand alive till successful completion of the Two years bond period with the Government by the Party of the FIRST PART Or in the event of such default till payment of Rs.40,00,000 (Rupees Forty Lakhs only) is paid to the Government of Tamil Nadu Medical Services.
3. The Party of the FIRST PART agrees that till the successful completion of the period of Two years, service to the Government of Tamil Nadu or till the payment of Rs.40,00,000 (Rupees Forty Lakhs only) is paid the certificates relating to MD PSYCHIATRY course shall be in the custody of the Party of the Second Part College and the Government has a first lien over all the certificates gained by the candidate at the time of admission.
The Party of FIRST PART authorizes for retention of the certificates till the lien is cleared / discharged. ________ Page 117 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Signed and Dated at Chennai on this the 10th day of Oct 2015.
Signed and delivered by the Party of the FIRST PART DR.
NISHANT KUMAR SAHU
Signature of the Candidates
In the presence of
Witness 1 Witness 1
Name : Vikas Khan Name : L.Rita
Address: Flat I, III Floor 8939658889
103, Sanyasipuram No.2A SASTHRI NAGAR
II Street, Kilpauk, MANGALAPURAM
Chennai – 10. CHENNAI-12.
Signed and delivered by the Surety
Signature of the Surety with seal (Sd/-) xxx (J.L.Sahu) PAN No.ALOPS9513K In the presence of Witness 1 Witness 2 Name : S.K.PALO Name: SUMEET BHETIWAL Address : 412, Kalpharli Address : 40/10HA HospitalParisar, Resale, Bhilai Sec Bhilai Signature (Sd/- xxx) Signature (Sd/- xxx) 27.09.15 27.09.15 Signed and delivered by the Surety ________ Page 118 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Signature of the Surety with seal (Sd/-) xxx Dr.K.K.Deharrya Medical Officer P.H.C. Katai Block-Nawagarh Distt – Bemetara (C.G) PAN No.AQUPD1619A In the presence of Witness 1 Witness 2 Name : Dr.Krishna Kumar Name:Devendra Kumar Address : MD/98 Aditya Nagar 134/5 Pandey para PAN No.AQUPD1619A Balod Dist – Balad Pin – 491 226 Signature (Sd/- xxx) Signature (Sd/- xxx) Krishna Nayak Shankar para Station Maroda Bhilai Signed and delivered by the Surety Signature of the Surety with seal (Sd/-) xxx Dr.Akhilesh Yadav PAN No.AAJIY9760G In the presence of Witness 1 Witness 2 Name : Dr.Praneyata Sahu Name:D.R.Dhruw ________ Page 119 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Address : 62-A/G Pocket Q.No.152/G Risali Sector Bhilai, Bhilai Dist. Durg(CG) Dist. Durg(CG) Signature (Sd/- xxx) Signature (Sd/- xxx) ACCEPTED For and behalf of any of the order and direction of the Government of Tamil Nadu Date Dean Station Madras Medical College PROFORMA
1. Name of the Candidate : DR. NISHANT KUMAR SAHU
2. Name of the Institution and place where he was worked at
3. Designation : MD PSYCHIATRY (JUNIOR RESIDENT)
4. Name of the PG course : MD PSYCHIATRY
5. Duration of the course : 3 years
6. Date of Joining the : 30.05.2015 Course
7.Whatever Service/ : Non Service Non Service Candidate ________ Page 120 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
8. If service candidate date of joining service
9. Total service prior to joining the course
10. Permanent Address : 62-A, G-Pocket Maroda Sector Bhilai, District Durg, Chhathisgarh 490006 DECLARATION I hereby declare that the above particulars are true to the best of my knowledge and I have executed / prescribed the bond, if the particulars furnished above are incorrect, I will remit back the stipend amount paid to me with interest thereon.
Date : 19.10.2015 Station : Chennai SIGNATURE OF THE CANDIDATE”
80. It is not in dispute before us that except for one of the writ petitioners, all of them have filled up similar bonds and have given identical declarations after having been admitted. ________ Page 121 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
81. A faint argument was advanced by Mr.Arumugam about the compulsions under which the candidates filled up these bonds and declarations after admissions, but no such pleading with any substantive material is on record, nor was it considered by the learned Single Judge in the judgment dated 1.10.2018, nor is there any material before us to construe that the said bonds or declarations were obtained under some compulsion. This argument, therefore, has to be rejected at the outset.
82. The nature of the bonds is categorical and the first lien of the Government over the certificates is more than evident. This nature of a voluntary transaction, therefore, in our opinion clearly binds all the writ petitioners to its terms and conditions that were never put to challenge. Their contention is that certificates of a large number of candidates have already been released and even subsequently, the letter dated 17.7.2017 by the Director of Medical Education fortifies their stand. Apart from this, there were various decisions of this High Court which have been complied with by the State and the certificates have been released. It is, therefore, ________ Page 122 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch submitted that any such denial to the writ petitioners would amount to discrimination.
83. We are not impressed by this argument, keeping in view the law declared by the Apex Court in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra). The judgment of the previous years that have been heavily relied on, including the judgment in W.A.No.1444 of 2008, and other judgments no longer hold the field and cannot be said to be the law applicable, keeping in view the pronouncement of the Apex Court, referred to above. We are, therefore, bound by the said pronouncement, which we otherwise find to be of support to the stand of the State in respect of the years in question. It will be necessary to reiterate at the risk of repetition that the Apex Court while delivering its judgment has noticed all arguments advanced in respect of the State of Tamil Nadu, which are reflected from paragraphs (1) and (15) of the report. The question of discriminating the petitioners, therefore, would no longer be available, nor is there any other law for the time being in force that ________ Page 123 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch may come to the aid of the writ petitioners.
84. The filling up of the bonds is in public interest and is a public policy which has the backing of reasonableness. For this, we may draw support from a very relevant disclosure by the State that answers six questions that have been framed by a learned Single Judge of this Court in relation to the present controversy itself. This was answered in the shape of specific remarks, which are extracted herein under:
“SPECIFIC REMARKS It is also humbly stated that the Hon'ble Justice Mr.Kurubakaran, High Court of Madras, Chennai in W.P.No.10894, 10895, 11485, 19809 to 19818, 20800, 20808-20817, 21212 to 21216, 21217 to 21222, 21223 to 21228, 21229 to 21233, 21234 to 21239 and 21515 of 2017 filed by Dr.E.Deyagarasan and others, before the High Court of Madras with a prayer to return all the original certificates has requested the Central and State Government to answer the following queries.
In response to the questions asked by the Hon'ble ________ Page 124 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Justice Mr.Kirubakaran, High Court of Madras, Chennai in W.P.No.10894, 10895, 11485, 19809 to 19818, 20800, 20808-20817, 21212 to 21216, 21217 to 21222, 21223 to 21228, 21229 to 21233, 21234 to 21239 and 21515 of 2017 filed by Dr.E.Deyagarasan and others, before the High Court of Madras with a prayer to return all the original certificate, I herewith submit my specific remarks.
1.What is the amount being spent by the Central/State Government to make the +2 qualified students as MBBS doctor. Similarly PG graduates in medicine and super speciality graduates?
It is respectfully submitted that amount being spent by the Central/State Government to make the +2 qualified students as MBBS doctor is as follows:
Details of Expenditure incurred by the Government for training 1 MBBS student (Minimum 100 MBBS seats College) Sl. Posts No. of Minimum Expenditure Total No. posts salary per per month expenditure required head for MBBS course Rs.
1 Dean 1 1.40 1.40 Lakhs 84,00,000
Lakhs
2 Medical 1 1.20 1.20 Lakhs 72,00,000
Superintendent Lakhs
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Sl. Posts No. of Minimum Expenditure Total
No. posts salary per per month expenditure
required head for MBBS
course
Rs.
3 Professor 21 1.20 25.20 Lakhs 44,64,00,000
Lakhs
4 Associate 29 1.0 Lakhs 29.00 Lakhs
Professor
5 Assistant 45 0.65 K 27.00 Lakhs
Professor
6 Tutor 23 0.40 K 9.20 Lakhs
7 Senior Resident 30 0.40 K 12.00 Lakhs
8 Junior Resident 38 0.40 K 15.20 Lakhs
9 Ministerial Staff - - 1,32,00,000
10 Para Medical 65 0.30 K 19.50 Lakhs 2,34,00,000
Staff
11 Basic Servants 22 0.20 K 4.40 Lakhs 52,80,000
12 Water charges 50,00,000
13 EB charges 50,00,000
14 Telephone charges 50,00,000
15 CRRI Stipend 100 0.15 K 15.00 Lakhs 1,80,00,000
16 Consumable 1,00,00,000
Expenditure
17 Driver 4 0.20 K 0.80 Lakhs 57,60,000
18 Fuel for Buses 60,00,000
19 Miscellaneous 1,22,79,000
20 Maintenance 19,35,000
charges
21 Commitment 42,09,000
charges
22 Awards and Prizes 1,18,08,000
23 Medicine charges 66,09,0000
24 Stationary 1,34,40,000
25 Stores charges 1,40,28,000
26 Diet 67,98,000
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Sl. Posts No. of Minimum Expenditure Total
No. posts salary per per month expenditure
required head for MBBS
course
Rs.
27 Drugs 59,04,000
28 Computer and 76,08,000
Accessories
Total 1021300000
Rs.1,02,13,00,000/500 = 20,42,600 Rounded to
20,00,000/- (per MBBS student)
It is respectfully submitted that amount being spend by the Central/State Government to make the MBBS student as PG doctor seat is as follows:
Details of Expenditure incurred by the Government for training 1 PG students (Broad Speciality course) Sl. Posts No. of Minimum Expenditure Total No. posts salary per per month expenditure required head for 3 years in Rs.
1 Associate 1 1,00,000 1,00,000 36,00,000
Professor
2 Assistant Professor 3 60,000 1,80,000 64,80,000
3 PG Salary / 5 (50% will 40,000 2,00,000 72,00,000
Stipend be service
PG out of
10 seats
eligible in
the
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Sl. Posts No. of Minimum Expenditure Total
No. posts salary per per month expenditure
required head for 3 years
in
Rs.
specialties
of
Medicine/
Surgery
4 Stipend 5 (for non 20,000 1,00,000 36,00,000
service PG)
5 Department 10,00,000
Library
6 Research Lab 10,00,000
Total 2,08,00,000
(Rounded to
2,10,00,000)
Total Rs.2,10,000/10 = 21,00,000 (per PG sheet)
2. How much is being charged per year by Central / State Government from students who undergoing MBBS, M.D. Medicine and super speciality course?
The Fees Payable in Government Institutions for MBBS and BDS Course are Tabulated Below FEES PAYABLE IN GOVERNMENT INSTITUTIONS TUITION FEES PER ANNUM for 2017-2018 Name of the Course Fees fixed in Rs. Per annum M.B.B.S. : 5½ years including Tuition fees : 4,000/- one year Compulsory Rotatory Special fees : 950/- Resident Internship (incl Medical Exam) Caution Deposit : 1,000/-
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Library fees : 1,000/-
University fees : 6,060/-
LIC (Gp Insurance) : 300/- - 27
Red Cross : 100/-
Misc fees : 100/-
Flag Day : 100/-
Total : 13,600/-
B.D.S. : 5 years including one Tuition fees : 2,000/-
year Compulsory Rotatory Special fees : 950/-
Resident Internship (incl Medical Exam)
Caution Deposit : 1,000/-
Library fees : 1,000/-
University fees : 6,060/-
LIC (Gp Insurance) : 300/-
Red Cross : 100/-
Misc fees : 100/-
Flag Day : 100/-
Total : 11,600/-
The above fee structure is applicable for 2017-2018 admissions. The selected candidates have to pay the balance of the tuition fees (if any) and other special fees etc. at the time of admission in the respective colleges.
The fees structure allotted for Post Graduate students in Government Institutions which is mentioned in the Prospectus are tabulated below:
FEES PAYABLE IN GOVERNMENT INSTITUTIONS TUITION FEES PER ANNUM Name of the Course Fees fixed in Rs. Per annum PG Diploma 20,000/-
________ Page 129 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch FEES PAYABLE IN GOVERNMENT INSTITUTIONS PG Degree 30,000/-
The above fee structure is applicable for 2016-2017 for 2017-2018 admissions. The selected candidates have to pay the balance of the tuition fees (if any) and other special fees etc. at the time of admission in the respective colleges.
The fee structure will vary according to fees fixed by Government for poor and meritorious students.
For Private Medical College students only the FEE FIXATION COMMITTEE will fix the fees.
3. Stipend being given during CRRI period in MBBS and stipend being paid for PG graduates as well as super speciality students during the course?
As per the G.O. (Ms) No.307 issued by the Health and Family Welfare (MCA) Department, dated 25.07.2018, the Stipend being given during CRRI period in MBBS and stipend being paid for PG graduates as well as super speciality students during the course is tabulated below as follows:
________ Page 130 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Sl. No. Student Categories Year of Study Enhance ment of monthly Stipend granted (Rs.)
1. CRRI - 20,000
2. Post Graduate 1st year 35,000 2nd year 37,500 3rd year 40,000
3. Post Graduate 1st year 35,000 Diploma 2nd year 37,500
4. Higher Speciality 1st year 40,000 Course 2nd year 43,500 3rd year 45,000
5. M.Ch Neuro Surgery 4th year 45,000 5th year 45,000 6th year 45,000 The Government also direct an automatic increase of Rs.600 for Compulsory Rotatory Residential Internees (CRRI) and Rs.1000 for Post Graduate / Higher Speciality student every year.
ANNEXURE NON-SERVICE PG STIPEND AS PER THE G.O.(MS) NO.307 ISSUED BY THE HEALTH AND FAMILY WELFARE (MCA) DEPARTMENT, DATED 25.07.2018.
________ Page 131 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Student Year of Rate of stipend Rate of stipend category Study as per after automatic 01.04.2014 increase in Rs. 01.04.2015 PG Degree I Year 35,000/- 36,000/-
II Year 37,500/- 38,500/-
III Year 40,000/- 41,000/-
PG Diploma I Year 35,000/- 36,000/-
II Year 37,500/- 38,500/-
Higher I Year 40,000/- 41,000/-
Speciality II Year 43,500/- 44,500/-
(DM/M.Ch.)
III Year 45,000/- 46,000/-
Illustration for the payment of stipend for Non-
Service PG students
BATCH (PG I Year II Year III Year
Degree/
Diploma)
2014-15 25,000/- 26,000/- 27,000/-
2015-16 25,700/- 26,700/- 27,700/-
2016-17 26,400/- 27,400/- 28,400/-
2017-18 27,100/- 28,100/- 29,100/-
Higher I Year II Year III Year
Speciality
(DM/M.Ch)
2014-15 30,000/- 30,000/- 30,000/-
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Higher I Year II Year III Year
Speciality
(DM/M.Ch)
2015-16 30.700/- 30.700/- 30,700/-
2016-17 31,400/- 31,400/- 31,400/-
2017-18 32,100/- 32,100/- 32,100/-
4. What is the amount being paid as salary to the PG Super Speciality in service students? The Salary details of faculty members for PG Super speciality in service students is S.No. Name of No. of Scale of Pay Grade Total DA @ HRA CCA MA Gross Total the post Post Pay Pay 136% per month Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs.
1 Associate 1 15600- 27350 7600 34950 47532 3200 600 100 86382 86382
Professor 39100
2 Assistant 4 15600- 27350 5700 33050 44948 3200 600 100 81898 327592
Professor 39100
Based on the new pay commission the Salary details of faculty members for PG super speciality in service students is tabulated below:
S.No. Name of No. of Basic DA@5% HRA CCA MA Gross Total the post Post Pay per month Rs. Rs. Rs. Rs. Rs. Rs. Rs.
1 Assistant 4 56900 2845 7500 1200 300 68745 274980 Professor
2. Associate 1 61900 3095 7800 1200 300 74295 74295 ________ Page 133 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S.No. Name of No. of Basic DA@5% HRA CCA MA Gross Total the post Post Pay per month Professor
5. What is the present doctor and people ratio?
With reference to the Essentiality Certificate issued by the Government of Tamil Nadu, Health and Family Welfare Department, Government Letter (D) No.783, dated 20.06.2016 the present doctor and people ratio is 1:832 as per year 2008.
6. What is the requirement of doctor in India? The Government of India has fixed the present doctor and people ratio based on the population i.e. 1:832 as per year 2008. The requirement of Doctor in India depends upon the Population/strength of the people.”
85. The aforesaid data is an eye-opener in order to understand as to why the State Government in the prospectus issued right from 2012-2013 onwards had continuously stressed on this issue by mentioning the financial implications, as also the requirement of some return to the society at large in paragraph ________ Page 134 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch (56) of the prospectus that has been extracted herein above. The candidates, therefore, were not only under a financial and social obligation bound by the terms of the bond, but were equally under a moral obligation to serve the interest of their own people, at whose cost they have availed of a highly subsidized educational course of study. The contention of the petitioners that there was no statutory backing has to be rejected, in as much as such conditions were very well included in all the prospectus of the years 2012- 2013 onwards, including 2014-2015 and 2015-2016 as well as the FAQ's to the AIPGMEE Bulletin 2014 and the Government Order of the State dated 14.1.2015, with which we are presently concerned. This stands fortified by the AIPGMEE Information Bulletin, referred to above, for the year 2014, which in its Frequently Answered Questions at Question No.30, had made it clear to the candidates that they have to be certain about the terms and conditions of stipends and bonds in respect of the information of the prospectus applicable and the conditions of admission to the respective medical colleges. Thus, the petitioners cannot now turnaround and say that the government order which had been issued did not specifically ________ Page 135 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch contain any condition in respect of All India Quota seats. In view of the data extracted herein above, we find no distinction between the facilities available to candidates of the All India Quota seats or the State quota seats. All the writ petitioners have availed the same benefits as compared to the State Quota seat candidates and, therefore, they had with open eyes accepted the said terms and conditions and then sought admission in the medical colleges within the State of Tamil Nadu.
86. There is one issue which requires clarification at this stage. The State Government, for reasons best known to it, unnecessarily carved out exceptions on its own and at times taking shelter of the previous judgments for releasing certificates. The communication dated 17.7.2017 by the Director of Medical Education was an absolutely inappropriate communication, bereft of any legal analysis. It appears that the clarification which is relied on by the learned counsel for the petitioners on the Right to Information document issued by the Government of India dated 28.7.2015 and referred to herein above was not in consonance with ________ Page 136 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch the Information Bulletin issued for the All India Post Graduate Medical Entrance Examination of 2014, where while answering Question No.30, it was left for the candidates to verify the terms and conditions of admission from the respective medical colleges of the States. We may point out that a prospectus issued in the shape of an information in respect of admission to educational institutions has been held to be binding, which is also evident from the stand taken by the writ petitioners. They have been using this plank of argument to their advantage by contending that there was no government order issued imposing this condition against All India Quota seats, but the fact remains that the prospectus from 2012- 2013 onwards has been continuously mentioning the conditions of compulsory service and filling up of bonds, including for the session 2014-2015. The conditions, therefore, being binding as contained in the prospectus, cannot be refuted.
87. It appears that the second clarification under the Right to Information Act which has been placed on record by a student from Kerala dated 12.3.2019 gives a reply both ways, firstly that the ________ Page 137 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch conditions of admission of All India Quota seats would vary from State to State, but on the other hand, it mentions that any additional condition pertaining to bonds and rural service shall not be applicable to All India Quota candidates, as the States cannot fix any additional eligibility criteria falling under the All India Quota seats. The said clarification dated 12.3.2019 in the shape of a RTI answer is extracted herein under:
“File No.Z-28014/33/2019-MEC Z-28014/33/2019-MEC Government of India Ministry of Health & Family Welfare Directorate General of Health Services Medical Examination Cell Dated: 12.03.2019 To:
Dr.Shabin J., Shabna Manzil, Kadampattukonam Paripally, P.I.-Kollam, Kerala – 691574.
Sub:- Seeking information under RTI Act-2005 by Dr.Shabin J.reg.
Sir, This has reference to your RTI Application with ________ Page 138 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch registration No.DTGHS/R/2018/50123 dated 09.03.2019 received in this Office No.12.03.2019 from Online RTI Portal regarding the subject matter. In this connection, the reply of your RTI Questions is as under:-
S. Question Reply
No.
1 Can state governments The Stipend/ fee
enforce bond/compulsory structure/course duration /
rural services for All India bond amount / rendering of Quota students secured service in rural/ tribal area / admissions through other conditionality's etc., if Nationwide test under All any, may vary from State India quota in medical PG to State, College to College examination with special and University to University reference to Honourable and shall be as per rules supreme court order dated and regulations of the 27.7.2011 IA no 9-13 civil respective State/ appeal no 1944 of 1993 College/University (Anand s Biju vs State of concerned and same has Kerala and others) been available on official website of Medical Counselling Committee (MCC) i.e. www.mcc.nic.in under College information heading. Candidates are advised to visit the website of college/institution also to check the information. In case they require any additional information, they can contact the college/institution on telephone.
The Medical Counselling Committee (MCC) already clarified that Candidates should well examine information regarding stipend/fee structure/ ________ Page 139 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S. Question Reply No. course duration / bond amount / rendering of service in rural / tribal area/other condionality's etc before opting any seat at medical / dental colleges.
In this regard, MCC shall neither be responsible nor shall entertain any case on above grounds, if any.
In this connection, it is also mentioned here that Any additional state condition* pertaining to bond/rural service shall not applicable to all India quota candidates. As per the Hon'ble supreme court's directions, it is not open to any state to fix any additional eligibility criteria in cases of candidates who fall under the All India Quota vide its order dated 27.07.2001 in IA nos.9-13 in civil appeal no.1944 of 1993 (Anand S.Biji v/s State of Kerala and Ors.) * Other than State Quota Students.
2. Does the above verdict Yes, the above verdict have have any relevance today relevance today, no one and whether individual can't violate the verdict.
states have any right to violate that judgment?
3. If the verdict is still If the implementation of the ________ Page 140 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S. Question Reply No. relevant, is there any need scheme any difficulties are for further verdict from felt by the Directorate concerned High courts to General of Health Services nullify the bond from time or by any person/ to tome or the above said Institution/ states or desire supreme court verdict is to change any modification sufficient. in the scheme they may approach the Hon'ble Supreme Court of India for necessary directions.
4. Does the Director of medical To prevent the blockage of education of a particular Medical/Dental Seats as per state of Deans of medical the Hon'ble Supreme Court colleges have the right to of India's approved scheme retain the original for All India Quota, Original certificates of All India documents are required at candidates on the name of the time of joining the bond/rural service after course/college allotted and completing the medical post it is mandatory for the graduate course from a candidates. If candidates particular government fail to submit original college. document to the allotted Medical/Dental College 5 Does universities and within stipulated time, then medical colleges have any the allotted seats will be right to ask candidates from cancelled and candidate will All India quota to submit not be eligible for further the original certificates at Round(s) of online the time of admission and if Counselling.
submitted already, can they retain it further 6 To whom a candidate If in the implementation of should approach if the the scheme any difficulties above said supreme court are felt by the Directorate order is not obeyed by any General of Health Services government colleges/states or by any person/ Institution/ states or desire to change any modification in the scheme they may approach the Hon'ble ________ Page 141 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S. Question Reply No. Supreme Court of India for necessary directions.
As per the RTI Act-2005, if you are not satisfied with the above mentioned reply of the CPIO, you may prefer an Appeal (within 30 days) to the Appellate Authority i.e. Deputy Director General (Medical) & First Appellate Authority, Directorate General of Health Services, Nirman Bhawan, Maulana Azad Road, New Delhi – 110 108.
sd/-
(Prof. (Dr.) B.Srinivas) Central Public Information Officer & Assistant Director General (ME) Tel.23062493, Fax-23061907 Email:[email protected]”
88. These aspects and the constitutional issues answered by the Apex Court have nowhere been discussed in the Division bench judgment of W.A.No.1444 of 2008 and as indicated above, the judgment in the case of S.Rajesh vs. The State of Tamil Nadu and Ors (supra), no longer holds the field, even though it upholds the conditions of the execution of the bonds, but on the issue of retention of certificates the Court had held that it was arbitrary and ________ Page 142 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch irrational and that the Government would be entitled only to take consequential action, but they cannot withhold certificates. We find the said pronouncement of the learned Single Judge in that decision to be no longer good law and, in our opinion as well keeping in view the terms and conditions of the bonds, coupled with the declaration in the prospectus, we are unable to accept the observations made by the learned Single Judge in the decision of S.Rajesh vs. The State of Tamil Nadu and Ors (supra) to hold that such conditions of retention of certificates are arbitrary and irrational.
89. We may point out that the Apex Court in the case of Anand S. Biji v. State of Kerala. (supra) had clarified the issue with regard to a precondition being imposed in respect of eligibility. In our opinion, the execution of the bonds and the retention of certificates are not exactly an eligibility condition, but are rather a condition imposed keeping in view the highly subsidized rate of education being imparted, coupled with the duty of such candidates to serve the interest of the State itself. ________ Page 143 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch
90. The candidates are not prohibited from pursuing their courses of study, nor is it arbitrary or unreasonable as now held by the Three Judges decision in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra). Consequently, such clarifications issued by the Government of India are no legal impediment in the enforcement of the conditions of the bonds that have been filled up by the candidates themselves.
91. With regard to the argument of the equality clause being violated by the Government by release of some certificates, suffice it to say that they were based on directions issued or judgments of this Court. The question of applying the said law by invoking the equality clause would be perpetuating an illegal position in the light of the judgment of the Apex Court in Association of Medical Superspeciality Aspirants and Residents and others (supra).
92. There is an additional argument advanced on behalf of the writ petitioners on the strength of the University Grants Commission Notification of October, 2018, particularly Clause 4.2 of the said ________ Page 144 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch notification, which is extracted herein under:
“4.2 Verification and Non-retention of Students' Academic and Personal certificates.
4.2.1. No HEI shall insist upon a student to submit the original academic and personal certificates, like, mark-
sheets, school leaving certificates and other such documents, at the time of submitting admission form, but the submission of self-attested copies thereof shall be mandatory.
4.2.2. HEIs shall physically verify the originals at the time of admission of the student in his/her presence and return them immediately after satisfying themselves about their authenticity, keeping the attested copies for their record.
4.2.3. The self-attested certificates of students shall be held valid and authentic by institution concerned and/or the affiliating university for all purposes and administrative requirements and should there be a need for physical verification at any time during the course of the programme of study, such verification shall be undertaken and the original certificates thus used for verification shall be returned immediately to the student concerned.
________ Page 145 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch 4.2.4. Taking the certificates into institutional custody under any circumstance or pretext is strictly prohibited. 4.2.5. In case of any suspicion over the authenticity or genuineness of a certificate, reference may be made to university or the Board which issued the certificate to the student and the admission be subjected to the authentication, but original certificate shall not be retained by the HEI under any circumstance.”
93. This argument has to be rejected, in as much as it is true that Regulations of the University Grants Commission on Educational Institutions are binding, but in the present case, the matter would be governed by such Regulations and Rules that pertain to medical education specifically. The lien on certificates in the present case is an outcome of a voluntary contract between the candidate and the State and the Medical College, where the retention is only for a limited purpose to ensure that the candidate after passing out serves the interest of the State for the period indicated in the bond. As to what is the nature of the contract or ________ Page 146 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch bailment need not be necessarily gone into, as that has neither been debated, nor it would be now relevant to decide, as such conditions of retention have been voluntarily accepted and authorized by the petitioners and have been held to be constitutionally permissible by a detailed enunciation of law by the Apex Court referred to herein above. To reiterate, the said issue now stands foreclosed on principles of estoppel by conduct and acquiescence and with the pronouncement of the Apex Court. They cannot be questioned by the petitioners any longer.
94. Having concluded as above, in our analysis, we see no reason to allow the writ petitioners to avoid the conditions of the bond or even claim the return of certificates as a matter of right.
95. However, there is one valid consideration that needs notice and to that effect we find substantial force in the submissions of the writ petitioners that the State Government is equally responsible to fulfill its commitments under the bond, namely that of offering employment and not to keep candidates waiting ________ Page 147 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch unendingly, as that would jeopardize their future careers and prospects of either taking up jobs, or setting up their own practice, or even going abroad. The struggle, the adventure, the spirit of service, the obstacles and adverse moments, the devotion and sacrifice that are adjuncts of an effort to establish medical practice has been captured lucidly in a biography of a British Doctor in his memoirs recorded in Diary of a Medical Nobody by Kenneth Lane. There are many such professionals in our society who have to face such ordeals that also has to be taken care of. The exuberance of a greenhorn medical pass out is full with anxiety and ambitions to perform in life. They therefore ought to have a sense of security and not be placed in a situation of uncertainty. It is trite that a true devotion for service should not be wedded to monetary concerns only, but should be an opportunity to convert and translate one's talent into genuine performance aimed at curing a disease and making life happier. A combination of these attributes and experiences, therefore, should be taken into consideration by the State Government while assessing the promptness with which the candidates should be made aware of the status of their ________ Page 148 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch requirement.
96. It is evident from the nature of the prospectus itself and the conditions of the bond that the State Government has to offer the job within two years of the passing out of their courses. The Medical Council of India has now made proposals, which is engaging the attention of the Central Government, pursuant to the judgment of the Apex Court, whereby the said terms have been proposed to be modified in a uniform manner, and which cannot be lost sight of. It is, therefore, evident that the period of two years have to be computed from the date of completion of the course by the candidate as stipulated in the bonds or such other defined period that may be binding on the parties. Any failure on the part of the Government to offer a job within a period of two years would, therefore, be detrimental to the candidates and we are of the firm opinion that the candidates cannot be kept waiting for the fulfillment of the period of the bond. Even otherwise, the recital contained in the terms and conditions clearly states that the period stipulated for service will render the bond infructuous thereafter. ________ Page 149 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch We find that the same condition would be applicable if the State Government fails to offer a job to the candidates within two years. The writ petitioners have relied on the posting order dated 9.6.2020, which is extracted herein under, to elaborate their submissions:
“HEALTH AND FAMILY WELFARE (81) DEPARTMENT G.O.(MS) No. 242 Dated: 09.06.2020 Thiruvalluvar Aandu - 2051 Sarvari. Vaigasi-27 Read:
From the Director of Medical Education Letter, Ref. No 21636/P&D/3/2/2020, dated 29.05.2020 *** ORDER:
The Director of Medical Education has stated that during the year 2017-2018 and 2018-2019, candidates have been admitted under single window system to various Post Graduate Degree/Diploma Courses in 13 Government Medical Colleges under the control of the Directorate of Medical Education, 574 Non-Service candidates have completed their Post Graduate Degree / Diploma Courses during 2020 and Final year ________ Page 150 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch examinations are yet to be conducted by the Tamil Nadu Dr. M.GR. Medical University.
2 He has, therefore, requested the Government to issue necessary orders for appointment of 574 Non Service Post Graduates temporarily on contract basis for a period of three months with consolidated pay of Rs.75,000/- pm./per head in the following Government Medical Institutions:-
S.No. Name of the Institution No. of Medical Officers 1. Madras Medical College / Rajiv Gandhi 30 Government General Hospital, Chennai 2 Stanley Medical College Hospital, 30 Chennai 3 Kilpauk Medical College Hospital, 30 Chennai 4 Tamil Nadu Government Multi Super 30 Specialty Hospital, Chennai 5 Government Medical College/ 25 Government Rajaji Hospital, Madurai 6 Government Medical College Hospital, 25 Tirunelveli 7 Government Mohan Kumaramangalam 25 Medical College Hospital, Salem 8 Government Coimbatore Medical 25 College Hospital, Coimbatore 9 Government Medical College Hospital, 25 Thanjavur 10 KAP Viswanatham Medical College / 25 Mahatma Gandhi Memorial Hospital, Trichy ________ Page 151 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S.No. Name of the Institution No. of Medical Officers 11 Government ESI Medical College, 15 Coimbatore 12 Government Vellore Medical College 18 Hospital, Vellore 13 Government Tiruvarur Medical College 15 Hospital, Tiruvarur 14 Government Villupuram Medical 18 College Hospital, Villupuram 15 Government NRT Medical College 15 Hospital, Theni 16 Government Thoothukudi Medical 15 College Hospital, Thoothukudi 17 Government Kanyakumari Medical 15 College Hospital, Asaripallam 18 Government Chengalpattu Medical 25 College Hospital, Chengalpattu 19 Government Dharmapuri Medical 15 College, Dharmapuri 20 Government Tiruvannamalai Medical 15 College Hospital, Tiruvannamalai 21 Government Pudukottai Medical 15 College Hospital, Pudukottai 22 Government Sivagangai Medical 15 College Hospital, Sivagangai 23 Perundurai Medical College and 15 Hospital, Erode 24 Government Karur Medical College 15 Hospital, Karur 25 Raja Muthiah Medical College Hospital, 15 Chidambaram 26 Institute of Child Health and Hospital 5 for Children, Chennai 27 Government Royapettah Hospital, 5 Chennai 28 Government RSRM Lying in Hospital, 6 ________ Page 152 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch S.No. Name of the Institution No. of Medical Officers Chennai 29 Institute of Obstetrics and 6 Gynaecology and Government Hospital for Women and Children, Chennai 30 Government Kasturba Gandhi Hospital, 6 Chennai 31 Tambaram TB Sanatorium, Chennai 5 32 TB Hospital, Chetpet, Chennai 5 33 Government Hospital, Thoracic 5 Medicine, Thoppur, Madurai 34 Government Peripheral Hospital, Anna 5 Nagar, Chennai 35 Government Peripheral Hospital, 5 Periyar Nagar, Chennai 36 Government Peripheral Hospital, 5 Tondiarpet, Chennai 37 Government Peripheral Hospital, 5 K.K.Nagar, Chennai Total 574
3. The Government have examined the request of the Director of Medical Education. The Non-service Post Graduates who have completed their Post Graduation in Tamil Nadu Government Medical Colleges execute a bond to work in Tamil Nadu Medical Service for a period of two years compulsorily. It is seen that at present there is no regular vacancy available in Tamil Nadu Medical Service to accommodate the above 574 Non-service Post Graduates. However, ________ Page 153 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch in the present pandemic situation, with the large number of COVID -19 patients, there is an increasing need for qualified Medical Officers. Hence, the Government have decided to accept the proposal of the Director of Medical Education. Accordingly, the Government accord permission to the Director of Medical Education to appoint 574 Non Service Post Graduates who are pursuing Post Graduation in Tamil Nadu Government Medical Institutions, temporarily on contract basis for a period of 3 months, with consolidated pay of Rs 75,000/- pm/per head in the Government Medical Institutions mentioned at para 2 above and sanction sum of Rs.
12,91,50,000/- (Rupees twelve crore ninety one lakh and fifty thousand only) towards consolidated payment for the above appointment
4. The expenditure sanctioned in para 3 above shall be debited to the following Head of Account:-
'2210 Medical and Public Health-05 Medical Education, Training and Research-105, Allopathy-State's Expenditure-AL improvements of Medical Colleges-333- Payments for professional and Special Services-04- contract payment IFHRMS-DPC 2210-05-105-AL-333 04' ________ Page 154 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Old (DPC: 2210-05-105-AL-3340)
5. Necessary funds of Rs. 12,91,50,000/- will be provided in the RE/FMA 2020-21 pending provision of such funds in the RE/FMA 2020-21, the Director of Medical Education is authorized to draw and disburse the amount sanctioned in para 3 above. However, this expenditure shall be brought to the notice of the legislature by Specific Inclusion in the Supplementary Estimates 2020-21. The Director of Medical Education is also requested to include this expenditure while sending the budget proposals for RE/FMA 2020-21 and draft explanatory notes for Supplementary Estimates 2020-21 to Government in Finance (BG) Department without fail at an appropriate time.
6. The Director of Medical Education is directed to accommodate the 574 contract appointment Medical Officers in the posts to be created in the 11 new Government Medical Colleges, suitably.
7. This order issues with the concurrence of Finance Department vide its U.O.No.188/JS(MA)/Health- II/2020, dated 09.06.2020 and Additional Sanction Ledger No. 129 (One Hundred and twenty nine). ________ Page 155 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch (BY ORDER OF THE GOVERNOR) BEELA RAJESH SECRETARY TO GOVERNMENT”
97. From a perusal of the said posting order it is clear that there was no regular vacancy available with the Government, but in order to accommodate the non-service Post Graduates, a temporary appointment on contract basis was offered for a period of three months.
98. It is the admitted case on behalf of the State that all these writ petitioners have not been offered appointments. If the Government has failed to offer appointment, then the question is how long are the petitioners required to await their posting orders. The arguments of the learned Additional Advocate General is that it takes time to identify the places where they can be posted. No reasonable time has been indicated by the State and, as a matter of fact, the stand appears to be that the period of two years indicated ________ Page 156 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch in the prospectus, of they having to wait for two years has to be observed.
99. The learned Additional Advocate General contended that the process otherwise also could not be completed because of the matter being sub judice. We do not find any impediment having been created by the matter being sub judice, except for a view orders having been passed for the release of certificates. Nonetheless, to come forward with such an excuse is nowhere justified, in as much as it was always open to the State to have come forward with an affidavit issuing posting orders to all those candidates, including the writ petitioners, who had passed out their Post Graduate Course and were awaiting employment. Needless to say that the stakes of a medical student having passed his/her Post Graduate course and then to keep him/her unendingly waiting for employment mars the career of such a candidate either for future studies or even for any appropriate employment. It appears that it is for this reason that the Committee which was constituted after the directions of the Apex Court in the case of Association of ________ Page 157 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch Medical Superspeciality Aspirants and Residents and others (supra) has reduced this waiting period up to one year for All India Quota candidates. However, the fact remains that in the present case, the State had made it conditional by keeping the said period as two years. The aforesaid two years period, therefore, was well known to all the writ petitioners and as such, we are of the opinion that the students who have passed out will have to await posting orders which can arrive within two years. This is not to say that they cannot pursue any study or get an employment in the interregnum period and have to compulsorily remain idle for two years. However, any such occupation being taken up by them may have to be given up if the State offers a job opportunity within the two year period, which they are liable to perform for the period for which they have filled up the bond. To that extent, we find that the writ petitioners are bound by the said conditions.
100. If, however, the State fails to provide any employment within a period of two years from the date of passing out as per the terms and conditions of the bond in the present case, then we hold ________ Page 158 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch that on the expiry of the period of two years from the date of passing out of the candidate, the bonds would be rendered infructuous and the certificates will have to be returned to the candidates.
101. There is yet another reason which we would like to adopt. The students, on the other hand, are entitled to receive the best of medical education because of their merit. To provide them this opportunity is not charity, rather it is the obligation of the State to furnish the best of facilities to medical students so that they serve their people to the best of their capacity. A doctor has to sacrifice the best moments of his life to nurse his patients who have confidence in him. The faith with which people approach medical professionals is responded to by these doctors, and therefore they have to be well equipped and best trained. The State spends money, not on gambling with unqualified people, but on those who are best suited for the job. The Directive Principles of State Policy oblige the State to take care of health and nutrition of its citizens and public health is a State subject. Provincial governments are, ________ Page 159 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch therefore, constitutionally obligated to render its citizens the best of health care-takers, and subsidizing medical education for the best amongst the lot is a major step in organizing the best of health services. Thus, the monetary investment by the State in this sector may be tremendous, but it is for a laudable purpose and the investment is just not pure business. The idea of compelling pass outs to serve the State hospitals is neither unjust nor against the students. It subserves a benevolent public purpose, namely that the people of the State are able to receive the best of medical attention.
102. Accordingly, we hold that the letter dated 17.7.2017, or the RTI clarifications issued by the Central Government, or even orders which have been passed from time to time for release of certificates cannot come to the aid of the writ petitioners, but at the same time, we also hold that the appellant State Government of Tamil Nadu cannot retain the certificates and thereby compel the students to wait endlessly for a job offer. The State having a corresponding obligation is equally bound by the period of two years ________ Page 160 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch which starts running from the date the candidate passed out and ends immediately after the expiry of two years. If an offer of employment has not been made within this period, then the candidate is free from the encumbrances under the bond and the State and the other authorities are obliged to hand back the certificates, as they will not be in a position to retain the same to the disadvantage of the candidates, including the writ petitioners, which cannot be perpetuated in the circumstances indicated above.
103. Our conclusions, therefore, are:
i. There is no material difference between the status of students occupying the State seats and All India Quota seats, in as much as they enjoy the educational facilities at par with each other, with the same subsidies and the same expenses being borne by the State Government.
ii. The conditions in the brochures for the years 2014-2015, 2015-2016 or the other brochures do not exempt the candidates of All India Quota ________ Page 161 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch seats from any condition of bond being executed by them and, therefore, the execution of the bonds voluntarily by such candidates will be presumed to be under the terms and conditions of the said brochures.
iii. The concessions made by the State Government and the letters addressed in this regard, particularly the letter communication dated 17.7.2017, or the admissions referred to in paragraphs (62) to (64) of this judgment, cannot confer any benefit contrary to the terms and conditions of the brochures.
iv. The intimation given under the Right to Information Act by the Central Government, as referred to in paragraph (65) of this judgment, cannot also absolve the All India Quota seat occupants from discharging their liability by the bonds which they have voluntarily filled up, and to which agreement the Central Government is ________ Page 162 http://www.judis.nic.in W.A.No.799 of 2019 etc. batch not a party. Any such clarification issued does not come to the aid of the writ petitioners. v. The judgment of the Apex Court in the case of Association of Medical Superspeciality Aspirants and Residents and others (supra) lays down the law and, therefore, any judgment rendered by this Court previously to the contrary does not hold water and cannot be taken benefit of by the writ petitioners.
vi. The period of applicability of the conditions under the bond will be co-terminus with the period of two years from the date a candidate successfully passes out the course, as explained above, and would not continue beyond the same.
vii.The candidates who have not been offered appointment within the period of two years would be entitled to release of their certificates accordingly.
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104. We have, therefore, no option but to set aside the impugned judgment dated 1.10.2018, but with a direction that in the event the period of two years has passed by after the passing out of the candidates without any offer of employment, then, in that event, they are not bound by the terms of the bonds executed by them and are consequently entitled for return of certificates. It is further clarified that this period will have to be sorted out in respect of all the candidates together with the details of the offer of employment made to them. The State Government shall, accordingly, prepare a list of all such candidates within fifteen days from today and notify it with details, including the date of passing out; the status of the offer of employment or otherwise, as well as the date of expiry of two years, in order to avoid any confusion on this count.
105. The petitioner in W.P.No.20800 of 2017 is stated to have not filled up any bond. He is therefore entitled to return of the certificates.
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106. The petitioners in W.P.Nos.10894, 10895 and 11485 of 2017 relate to 2012-2013 session students. Their status be examined and if the students of their batch have been handed over their certificates, then in view of the long passage of time, their certificates shall also be returned in these peculiar circumstances.
107. Such of those candidates who have been handed over certificates by virtue of interim orders passed by this Court relating to 2014-2015 and 2015-2016 sessions would be governed by the findings and observations made herein above.
The appeal W.A.No.799 of 2019 is allowed and the writ petitions stand disposed of with the said modifications. No costs. Consequently, connected miscellaneous petitions are closed.
(A.P.S., CJ.) (S.K.R., J.)
6.10.2020
Index : Yes
sasi
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THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(sasi)
Common Judgment in
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