Kerala High Court
Mikhael Joseph Paul vs Government Of Kerala on 10 September, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938
WP(C).No. 452 of 2017 (F)
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PETITIONER(S):
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MIKHAEL JOSEPH PAUL
AGED 24 YEARS, S/O JOSEPH PAUL,
KUZHIKKATTIL HOUSE,
KOTTOPADAM P.O.- 678 583
MANNARKKAD, PALAKKD
BY ADVS.SRI.MANOJ RAMASWAMY
SMT.SANJANA R.NAIR
RESPONDENT(S):
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1. GOVERNMENT OF KERALA
REP. BY PRINCIPAL SECRETARY TO GOVERNMENT
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVT. SECRETARIAT,
THIRUVANANTHAPURAM- 691 001
2. KERALA UNIVERSITY OF HEALTH SCIENCES
THRISSUR- 680 596
REP. BY ITS REGISTRAR
3. THE PRINCIPAL
KMCT MEDICAL COLLEGE,
MANASSERY P.O MUKKAM
KOZHIKODE - 673 602
R1 BY SENIOR GOVERNMENT PLEADER SMT.C.S. SHEEJA
R2 BY ADV. SRI.P.SREEKUMAR,SC,
R3 BY ADV. SRI. GEORGE POONTHOTTAM
BY SRI. S.SREEKUMAR SENIOR ADVOCATE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18-01-2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
bp
WP(C).No. 452 of 2017 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE DEGREE CERTIFICATE ISSUED BY
THE UNIVERSITY OF CALICUT
EXHIBIT P2: TRUE COPY OF ROTATING INTERNSHIP CERTIFICATE
ISSUED BY THE 3RD RESPONDENT COLLEGE
EXHIBIT P3: TRUE COPY OF THE TRANSFER AND CONDUCT
CERTIFICATE BY THE 3RD RESPONDENT
EXHIBIT P4: TRUE COPY OF THE MIGRATION CERTIFICATE
EXHIBIT P5: TRUE COPY OF THE PRACTITIONER IN MODERN
MEDICINE WITH THE TRAVANCOE COCHIN COUNCIL OF
MODERN SCIENCE
EXHIBIT P6: TRUE COPY OF THE APPLICATION DATED 10-09-2016
SUBMITTED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT
EXHIBIT P7: TRUE COPY OF THE GOVERNMENT ORDER VIDE GO(MS)
NO.533/2008 /H &FWD DATED 07-10-2008
EXHIBIT P8: TRUE COPY OF HE ORDER VIDE NGO (RT)
NO.1898/20-09/H&FWD DATED 06-07-2009
EXHIBT P9: TRUE COPY OF THE ORDE VIDE GO (MS)
NO.333/2012 /H&FWD DATED 08-10-2012 ISSUED BY
THE 1ST RESPONDENT
EXHIBIT P10: TRUE COPY OF THE PROCEEDINGS BEFORE THE FREE
REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES
IN KERALA DATED 23-12-2016
RESPONDENT(S)' EXHIBITS :
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EXT.R3(a): COPY OF THE BOND EXECUTED BY THE PETITIONER DT
10/8/2009.
EXT.R3(b): COPY OF THE COMMUNICATION DT 23/1/2016 ISSUED
BY THE R3 TO THE PETITIONER.
//TRUE COPY//
P.A. TO JUDGE
bp
P.B.SURESH KUMAR, J.
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W.P.(C).No.452 of 2017
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Dated this the 18th day of January, 2017
J U D G M E N T
The petitioner has undergone M.B.B.S. course in the third respondent college under the Government quota. He completed the course as also the internship that followed the course. The internship was completed by the petitioner during July 2016. Ext.P1 is the degree certificate issued to the petitioner by the University of Calicut. Ext.P2 is the Internship Certificate issued to the petitioner by the third respondent college. Ext.P3 is the Transfer and Conduct Certificate issued to the petitioner by the third respondent college. Ext.P4 is the Migration Certificate issued to the petitioner by the University of Calicut. Ext.P5 is the registration obtained by the petitioner under W.P.(c).No.452 of 2017 : 2 : the Tranvancore Cochin Council of Modern Medicine. It is stated that for the purpose of higher studies, the petitioner needs a Certificate of Transcript of Medical Education from the college in a particular proforma. It is alleged that the same is not being issued by the third respondent college on the ground that the petitioner is liable to pay certain amounts to the college as per the terms of a bond executed by him along with his parents at the time of his admission. The petitioner along with his parents have executed a bond at the time of his admission agreeing to pay certain amounts to the college in the event of his failure to work in the college for a period of one year after the course. According to the petitioner, the agreement was in terms of the order issued by the Government in this connection and the Government have now exonerated the students from the compulsory service and that therefore he is not obliged to serve the college. The petitioner, therefore, seeks directions to the third respondent college to issue the certificate applied for by him.
W.P.(c).No.452 of 2017 : 3 :
2. A counter affidavit has been filed by the third respondent college. In the counter affidavit, it is contended by the third respondent college, among others, that the petitioner and his parents together have executed R3(a) bond agreeing to pay certain amounts, if the petitioner fails to serve the college for a period of one year after the course; that the petitioner has not served the college for a period one year after the course; that he is, therefore, liable to pay the third respondent college the amounts specified in Ext.R3
(a) bond and that he is not entitled to claim the certificate applied for by him without paying the amount covered by the bond.
3. Heard the learned Senior Counsel for the petitioner as also the learned counsel for the third respondent college.
4. The short point arising for consideration is whether the third respondent college is entitled to withhold the certificate applied for by the petitioner for non payment of the amounts covered by Ext.R3(a) bond. The stand taken W.P.(c).No.452 of 2017 : 4 : by the petitioner as to his liability to pay the amounts covered by Ext.R3(a) bond may or may not be sustainable. However, in so far as the liability to pay the amounts covered by Exhibit R3(a) bond is disputed by the petitioner, the question as to the liability under the bond is a question to be decided by a competent civil court. In other words, if the college maintains that the petitioner is liable to pay the amount covered by the bond, the college has to institute a suit for realization of the disputed amounts. I wonder as to how the college can withhold a certificate for non payment of a disputed claim. No material whatsoever has been brought to my notice which enables the college to withhold certificates of the students on any grounds. As such, I am of the view that the college cannot withhold the certificates of students for non payment of the amounts covered by bonds if any, executed by the students. The said view has been taken by this court in WP.(C).No.35270/2016 in an exactly identical case. Paragraphs 5 to 7 of the said judgment read thus:
W.P.(c).No.452 of 2017 : 5 :
"5. Primarily, the issue projected by the petitioners is that they have not given the requisite documents/certificates which are required to be given by the college after passing of the examination. According to them, they have no obligation to work for a period of one year either in rural area or in the same college as directed in Ext.P11.
6. Apparently, the issue is covered by the terms of contract between the parties. Even according to the petitioners they or their parents have entered into an agreement for payment of liquidated damages. If at all there is any violation of the terms of contract, there is an obligation cast upon the persons who had undertaken the obligation to pay the same to the college authorities. If they don't pay the said amount, the remedy is only to approach the civil court and recover the liquidated damages in accordance with the procedure prescribed. However, there is no condition either in the agreement (bond) or in any of the terms of contract between the parties that the college authorities will retain the certificates/documents which are legally to be given to the candidate who successively completes the course unless the payment is made or if they don't undertake the one year service in the college. In the absence of any such stipulation in the contract, I don't think that the college authorities were justified in retaining the documents. However, if there is any breach of contract, their remedy is to recover the amount as specified in the contract or such sum as permissible under law, by approaching the proper forum.
7. Taking into consideration the aforesaid factual situation, I don't think that I should go into the merits of the contentions as to whether there is a breach of contract or not. But, reserving right of the college authorities to take W.P.(c).No.452 of 2017 : 6 : appropriate action against the petitioners for recovering liquidated damages, the 3rd respondent is directed to provide the petitioners with all the necessary certificates/documents as early as possible and not later than two weeks from the date of receipt of a copy of this judgment."
The petitioner, in the circumstances, is entitled to succeed.
In the result, the writ petition is allowed, the third respondent college is directed to issue the Certificate of Transcript of Medical Education sought by the petitioner in the format in which it is normally issued to other students, forthwith. It is, however, clarified that this judgment will not preclude the third respondent college from instituting appropriate action for realisation of the amounts, if any, due from the petitioner and his parents, in accordance with law.
Sd/-
P.B.SURESH KUMAR JUDGE rsr