Uttarakhand High Court
State Of Uttarakhand And Others ... vs Janki Bartwal on 11 February, 2020
Equivalent citations: AIR 2020 UTTARAKHAND 52, AIRONLINE 2020 UTR 22
Bench: Ramesh Ranganathan, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No.983 of 2019
State of Uttarakhand and others ......... Appellants.
Vs.
Janki Bartwal ......... Respondent.
Dated: 11th February, 2020
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Hon'ble Ramesh Ranganathan, C.J. (Oral) The application seeking condonation of delay is not opposed by Shri Vinay Kumar, learned Counsel appearing for the respondent-writ petitioner, and the delay is, therefore, condoned.
2. Heard Mr. B.P.S. Mer, learned Brief Holder for the State and Mr. Vinay Kumar, learned Counsel for the respondent-writ petitioner.
3. This appeal is preferred by respondent nos. 1 to 3 in WP (M/S) No.1713 of 2015 aggrieved by the order of the learned Single Judge dated 19.09.2018 disposing of the writ petition in terms of the earlier judgment passed in WP (M/S) No. 811 of 2015 dated 07.04.2015. The respondent-writ petitioner had invoked the jurisdiction of this Court seeking a writ of certiorari to quash Clause No.5 of the Letter dated 10.02.2014 requiring students, undergoing Post-Graduation course in medicine, to execute a bond to compulsorily serve the Govt; to quash the communications dated 16.01.2015, 02.01.2015,19.02.2014, 28.02.2014, 02.08.2014 and 22.11.2014 issued by the Principal / Dean, Govt. Medical College, Haldwani requiring the petitioner to execute a Bond for compulsorily serving in the Govt. service of the State in as much as the petitioner has not availed the benefit of any concessional fee; to quash the document dated 18.02.2015 regarding "Refund of the Service Bond Amount"; and for a mandamus directing the Principal, Govt. Medical College, Haldwani to refund Rs.16,49,313/- deposited by the petitioner in terms of the Government Order dated 23.05.2013.
24. Facts, to the limited extent necessary, are that the respondent-writ petitioner completed her MBBS course in the year 2007 from the Himalayan Institute of Medical Sciences, Dehradun. She appeared for the Uttarakhand Post Graduate Medical Entrance Examination, 2012 and was admitted into the post graduate medical course at Haldwani, in the quota available under the State Government, for the Academic Session 2012-13. She, along with others, was asked to furnish a bond as prescribed by the Government of Uttarakhand, and to avail a fee structure, on furnishing such a bond, at Rs.60,000/- per annum. Thereafter, on 19.02.2014, the Principal / Dean of the Medical College, Haldwani issued a letter for execution of a new bond for compulsorily serving in the hilly and rural areas of the State for the Post Graduate (M.D./M.S.) Second (2012 Batch) and third year (2011 Batch); and the surety bond disclosed that a subsidized tuition fee of Rs.60,000 per annum, as against the full tuition fees of Rs.6,00,000/-, would alone be required to be paid on such a bond being furnished. While the petitioner claims to have initially protested against her being asked to furnish such a bond, she admits to have executed the bond later and, on completion of her Post Graduate Medical Course, to have deposited Rs.16,49,313/- (being the differential tuition fee applicable to regular students and the subsidized tuition fee applicable to students who furnished a bond undertaking to serve in the hilly and rural areas of Uttarakhand for a minimum period of 2/3 years).
5. Since this Court had earlier taken the view, in WP (M/S) No. 811 of 2015, that the bond amount could not be recovered, the petitioner had invoked the jurisdiction of this Court seeking refund of the amount paid by her towards the differential fee, and for being discharged from the conditions stipulated in the bond executed by her.
6. In the order under appeal, the learned Single Judge held that the subject matter of this writ petition was covered by the order passed in WP (M/S) No.811 of 2015 dated 07.04.2015.
7. Mr. B.P.S. Mer, learned Brief Holder, would submit that the questions involved in the writ petition are no longer res integra, as the 3 subject matter of the writ petition is covered by the order passed by a Division Bench of this Court in Special Appeal No.224 of 2019 and batch 31.07.2019; and, in the light of the order of the Division Bench, the earlier order passed by the learned Single Judge in WP (M/S) No.811 of 2015 is no longer applicable.
8. In its order in Special Appeal No.224 of 2019 and batch dated 31.07.2019, a Division Bench of this Court had opined that the petitioners, having executed a bond and having prosecuted their under- graduate Medical Course at a concessional fee, cannot now turn around and contend that they were unaware of the differential fee structure or that the State Government was therefore disabled from recovering the said amount from them; there was no illegality in the Government Orders prescribing (i) concessional fee for those who were willing to serve in the hilly and rural areas of the State of Uttarakhand, for a period of five years, after completion of their five years' under-graduate medical course; and (ii) regular fees for those students who did not wish to exercise such an option.
9. In the present case also, the respondent-writ petitioner has prosecuted her Post Graduate Medical course, at a concessional fee, after having executed a bond to serve in the hilly and rural areas of the State of Uttarakhand for a period of three years. It is only because she had furnished such a bond for prosecuting her studies at a concessional fee structure, unlike the regular fee structure applicable to students who had undergone their Post Graduate Medical Courses on payment of the prescribed regular tuition fee, was she permitted to prosecute her post- graduate medical course on payment of a concessional fee.
10. While fairly stating that the question of law which arises for consideration in the present case is squarely covered by the order of the Division Bench in Special Appeal No. 224 of 2019 and batch dated 31.07.2019, Mr. Vinay Kumar, learned Counsel for the respondent-writ petitioner, would contend that the said judgment cannot be made applicable to the respondent-writ petitioner since, in other cases, a similar order passed by the learned Singled Judge had been dismissed in appeal 4 by this Court. The effect of dismissal of the writ petition and the Special Appeals, rejecting the Government's claim to recover the said amount, is that the State Government would be disabled thereby from recovering the amount from such employees (State of Punjab Vs. Joginder Singh, AIR 1963 SC 913). That would not, however, disable the State Government from recovering the differential fee amounts from other students, in the light of the law declared by the Division Bench of this Court in Special Appeal No. 224 of 2019 and Batch dated 31.07.2019. The very same contention, as is now urged before us, was also raised in Special Appeal No. 224 of 2019 and Batch and, in its order dated 31.07.2019, the Division Bench had opined as under:-
"...... Unlike the petitioners in Writ Petition (M/S) No. 1845 of 2009, the respondents-writ petitioners herein were admitted into the Government Medical College, Haldwani during the academic years 2011-12 and 2013-14, only after the Government Orders dated 09.09.2009 and 23.05.2013 were issued. The respondents-writ petitioners' claim for parity, with the petitioners in Writ Petition (M/S) No. 1845 of 2009, is therefore not justified. Even otherwise, in Col. B.J. Akkara (Retd.) v. Govt. of India : (2006) 11 SCC 709, the Supreme Court held that the State is not prevented or barred from challenging the subsequent decisions, or resisting subsequent Writ Petitions, even though a judgment in a case involving a similar issue was allowed to reach finality in the case of others; this would, however, not apply if it was proved that the State had adopted a "pick and choose" method only to exclude petitioners on account of malafides or ulterior motives; and neither the principle of res judicata nor the principle of estoppel was attracted. In the present batch of cases also no allegations of "pick and choose", malafides or ulterior motives are made.
On a similar question as to whether the State could prefer an appeal in one case, even where a common order was passed in four cases, the Supreme Court, in The State of Punjab Vs. Joginder Singh : AIR 1963 SC 913, noted the submission, urged on behalf of the respondents therein, that, since orders in the other three petitions had become final, any order passed in the appeal before it, at variance with the relief granted in the other three petitions, would create inconsistent decrees in respect of the same matter; and the appeal before it should also be dismissed. The Supreme Court held that this would not be the legal effect of an order passed by it in the appeal, and there was no merit in the objection as a bar to the hearing of the appeal; the true position was that, if the appeal filed by the State Government were to succeed, it would only mean that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed, and those three successful petitioners would be entitled to 5 retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed; that, however, would not help the respondent before it, who would be bound by the judgment of the Supreme Court in the present appeal; and, so far as the general law was concerned, the law laid down by the Supreme Court would be applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decisions in their favour having attained finality).
The consequence of a particular order not being questioned in appeal, and in being permitted to attain finality, is that, even if a Division Bench of this Court were now to take a different view from the law declared earlier by the learned Single Judge, the State Government, having permitted the earlier order of the learned Single Judge to attain finality, cannot apply the law laid down by the Division Bench to that case, since judgments inter-parties, having attained finality, are binding on the parties thereto, including the State Government. That does not, however, disable the State Government from challenging the order under appeal, and to contend that the law declared in the earlier judgments of the learned Single Judge does not represent the correct law. This contention must, therefore, fail....." (emphasis supplied)
11. We are satisfied, therefore, that the order, passed in other cases which have attained finality, would not disable the State Government from recovering the differential fee payable by the petitioner on her failure to abide by the terms and conditions of the bond executed by her to serve in the hilly and rural areas of the State of Uttarakhand for a period of 2/3 years.
12. In the present case, the petitioner has already paid the differential fees for a sum exceeding Rs.16.49 lakhs. She has invoked the jurisdiction of this Court seeking refund of the said amount. On being asked whether the petitioner was now willing to serve the Government of Uttarakhand in the hilly and rural areas of the State of Uttarakhand, Mr. Vinay Kumar, learned Counsel for the respondent-writ petitioner, states that the petitioner has been regularly appointed as an Assistant Professor in the Srinagar Medical College, District Pauri Garhwal; and she is unwilling to serve in the hilly and rural areas of the State. Consequently, she is liable to pay the differential fee structure for her failure to abide by the terms and conditions of the bond. Since the said amount has already been paid by her, no further action is required to be taken by the State Government in this regard.6
13. The order under appeal is set aside and the Special appeal is allowed. However, in the circumstances, without costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.) Balwant/Sukhbant