Kerala High Court
Dr.Minnu G.Dev vs State Of Kerala on 3 November, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942
WP(C).No.20906 OF 2020(K)
PETITIONERS:
1 DR.MINNU G.DEV, AGED 29 YEARS
W/O. ALLEN KURIAKOSE, 12E, A BLOCK,
PLANET X-SREEDHANYA HOMES, MEDICAL COLLEGE,
THIRUVANANTHAPURAM - 695011.
2 DR. BEENA IDICHERIYA BHASY, AGED 30 YEARS,
D/O. IDICHERIYA BHASY, CHIRAKADAVIL,
AADICHANALLOOR PO, QUILON - 691573.
BY ADVS.
SRI.ROY CHACKO
SRI.K.C.VINCENT
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH
AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 DR. SOMERWELL MEMORIAL CSI MEDICAL COLLEGE,
KARAKKONAM P O, THIRUVANANTHAPURAM - 695504,
REPRESENTED BY ITS DIRECTOR.
3 PRINCIPAL
DR. SOMERWELL MEMORIAL CSI MEDICAL COLLEGE,
KARAKKONAM P O, THIRUVANANTHAPURAM - 695504.
BY ADV. SMT. AISWARYA V.S.
BY ADV. SRI.ARUN.B.VARGHESE
OTHER PRESENT:
SR.GP.SRI.V.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-10-
2020, ALONG WITH WP(C).21117/2020(L), THE COURT ON 03-11-2020
DELIVERED THE FOLLOWING:
WP(C).Nos.20906 & 21117 OF 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942
WP(C).No.21117 OF 2020(L)
PETITIONERS:
1 DR.JOSE MATHEW
AGED 32 YEARS
S/O MATHEW,
MADAPPATTU HOUSE, MONIPALLY.PO,
KOTTAYAM-686636.
2 DR. AJAYAGHOSH N
AGED 30 YEARS
S/O SHIVADASAN NECHIKKAD, NECHIKKAD HOUSE,
IRUVETTY P.O, MANJERY,
MALAPPURAM-673639.
3 DR.MISHA K.P
AGED 30 YEARS
D/O SUKUMARAN,
MANJANKUZHIPARAMBU,
KARUVAMBRUM.PO,
MANJERY, MALAPPURAM-676123.
4 DR. TEENA MARY JOHN
AGED 30 YEARS
D/O JOHN JOSEPH, MELOOTTUHOUSE,
PULAMON P.O,
KOTTARAKKARA, KOLLAM-691531.
5 DR. SHEELA MARY ISSAC
AGED 30 YEARS
D/O K.K. ISSAC, KOTTACKAKATHU HOUSE, MULAVANA P.O,
KUNDARA, KOLLAM-691503.
WP(C).Nos.20906 & 21117 OF 2020
3
BY ADVS.
SRI.ROY CHACKO
SRI.K.C.VINCENT
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 DR. SOMERRWELL MEMORIAL
CSI MEDICAL COLLEGE, KARAKKONAM.P.O,
THIRUVANANTHAPURAM-695504.,
REPRESENTED BY ITS DIRECTOR.
3 PRINCIPAL
DR. SOMERWELL MEMORIAL CSI MEDICAL COLLEGE,
KARAKKONAM.P.O,
THIRUVANANTHAPURAM-695504.,
BY ADV. SMT. AISWARYA V.S.
BY ADV. SRI.ARUN.B.VARGHESE
SR.GP.SRI.V.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-10-2020, ALONG WITH WP(C).NO.20906/2020(K), THE COURT ON
03-11-2020 DELIVERED THE FOLLOWING:
WP(C).Nos.20906 & 21117 OF 2020
4
P.V.ASHA J.
------------------------------------
W.P.(C).Nos.20906 & 21117 of 2020
-------------------------------------
Dated this the 3rd day of November, 2020
J U D G M E N T
Petitioners in both these cases completed Post Graduate Degree Course from the second respondent Self Financing Medical College. The common complaint of the petitioners is that their certificates are retained by the second respondent on the ground that they have executed a bond agreeing to serve the Institution for a period of one year as Senior Resident/Tutor/Demonstrator. Petitioners claim that the issue raised by them is covered by the Division Bench judgment of this Court in W.P.(C).No.25957 of 2018 and judgments in W.P.(C).Nos.19125 of 2019 and 18862 of 2019.
2. It is stated that petitioners joined the second respondent College after they completed MBBS Degree and underwent the Post Graduate Course on WP(C).Nos.20906 & 21117 OF 2020 5 securing admission under the State Merit Quota during 2017-2018. The said course was for a period of three years and results were published on 04.09.2020. Petitioners in W.P.(C).No.20906 of 2020 underwent the Post Graduate Course in Gynaecology and Community Medicine respectively; whereas the petitioners in W.P.(C).No.21117 of 2020 underwent PG courses in Psychiatry, Radiodiagnosis, Pediatrics, Otorhinolarynegology and Ophthalmology respectively. Petitioners have executed a bond in tune with the provisions contained in G.O.(Rt).No.1366/2017/H&FWD dated 15.05.2017 (Ext.P1). The execution of the bond was compulsory for admission to the Post Graduate Course. One of the Clauses in the bond is to the effect that they would serve the Institution as compensation for making available the facilities required for their PG Studies by the Govt. and the Management. On completion of the course and on publication of results, petitioners requested the WP(C).Nos.20906 & 21117 OF 2020 6 College to return their certificates. But the respondents insisted that they have to abide by the conditions in the bond and have to serve the Institution for one more year.
3. Petitioners submit that the College did not grant any stipend to them after December 2019. It is also their case that withholding of certificates does not form part of the order Ext.P1. According to them, the bond agreeing for one year service in the Institution is required only for admission to Govt. Colleges. Petitioners pointed out that the respondent College rejected their request for returning the certificates and directed them to serve the Institution for a period of one year, relying on the judgment of this Court in W.A.No.2392 of 2016.
4. The College-the Second respondent College as well as the Principal of the College-the 3 rd respondent have filed a counter affidavit stating WP(C).Nos.20906 & 21117 OF 2020 7 that the petitioners are bound by the provisions in the bond executed by them agreeing to serve the Institution for a period of one year. According to them the petitioners got admission in the College in accordance with the provision contained in Ext.R3(a) Prospectus and they are fully aware of the provisions therein. It is stated that all the petitioners have executed bonds agreeing to serve the Institution for a period of one year as Senior Residents at the rate fixed by Govt. after the successful completion of their PG Course. It is stated that Clause 12-2.7 of Ext.R3(a) Prospectus provides that the certificates which the petitioners submitted in the Colleges at the time of admission need be released only after the completion of compulsory bonded service or in the event of violation of the conditions in the bond, they shall pay liquidated damages. According to respondents 2 and 3, the petitioners have not challenged the said WP(C).Nos.20906 & 21117 OF 2020 8 provisions contained in the Prospectus. According to the respondents the judgments relied on by the petitioners i.e., Exts.P4 to P6 do not relate to provisions like 12-2.7 of the Prospectus. It is stated that judgment of this Court relied on by the petitioners was taken up before the Apex Court by one of the Colleges and as per Ext.R3(b) order dated 09.05.2019 the Apex Court has ordered that the release of the certificate shall not be treated as a precedent. It is stated that the said Civil Appeal is pending. It is therefore argued that they are well within their powers to retain the certificates and to insist compulsory service. The respondents pointed out that the issue is covered by another judgment of the Division Bench in Ayisha Beegam (Dr) and Others v. State of Kerala [2018 (2) KHC 600]. It is stated that as per Ext.R3(d) order dated 17.09.2019 the SLP filed against the said judgment was dismissed. In accordance with the dictum laid WP(C).Nos.20906 & 21117 OF 2020 9 down in Ayisha Beegam's case (supra) the College can insist on the student to serve the bonded period. It can also recover liquidated damages in case they do not serve the bonded period. It is stated that the respondent College is in need of Senior Residents in view of the number of COVID-19 patients admitted in the College. It is also pointed out that one of the students have already joined and started her service as Senior Resident in accordance with conditions in the bond. Therefore, according to them, the petitioners cannot have any right to claim the return of their certificates unless and until they complete the one year service in accordance with the bonded period.
5. I heard Shri Vincent K.C, learned counsel for the petitioners, Shri Arun B. Varghese, learned counsel for the College. According to Sri.Vincent the learned Counsel for the petitioner, the issue is covered by the judgment dated 25.03.2019 of the WP(C).Nos.20906 & 21117 OF 2020 10 Division Bench in W.P.(C) No. 25957 of 2018; whereas according to Sri. Arun B Vargherse, the issue arising in the matter is governed by Ext.R3(c) judgment dated 16.03.2018 of the Division Bench in Ayisha Beegam's case (supra).
6. On a perusal of the judgment Ext.P4(a) dated 25.03.2019, it is seen that the Division Bench has considered the judgment in Ayisha Beegam's case (supra) also. In Ext.P4(a) judgment the second respondent College was the 5 th respondent. It is seen that the Prospectus which was considered therein was one issued in 2015. The petitioners therein were admitted in the year 2015. This Court found that there was no provision in the notification issued by the Govt. with respect to the Colleges including the Somerwell Medical College which provided for the withholding of any Certificates which were given either at the time of admission or on completion of the course. However it was found that a bond was WP(C).Nos.20906 & 21117 OF 2020 11 obtained from the students of MES College at the time of admission. It was also found that the admission supervisory committee had withheld the condition regarding liquidated damages. The respondent Medical Colleges therein had relied on the judgment in Ayisha Beegam's case (supra) wherein the Division Bench held that the provision for withholding of certificates does not run counter to public policy. But it was found that the certificates which were withheld by the College were not the certificate entrusted with them at the time of admission but were the course completion certificates, for which there was no enabling provision. The certificates which were entrusted at the time of admission were already returned. Therefore, it was held that the College cannot turn around and insist that the bond has to be enforced or that the liquidated damages have to be realised. It was further found that in Ayisha Beegam's case WP(C).Nos.20906 & 21117 OF 2020 12 (supra) the bond was with respect to compulsory employment with the Govt. and the Prospectus was issued by the Commissioner of Entrance Examination which was not applicable to Self Financing Institutions observing that Ayisha Beegam's case (supra) had only dealt with the aspect of public policy and withholding of certificates was permitted therein. In paragraph 12 of the judgment Division Bench found that there is no such provision either in the prospectus issued by the Commissioner for Entrance Examination or the College and in the notification issued with respect to the 2 Colleges enabling such withholding of certificates.
7. The petitioners herein have admitted that they have executed the bond in tune with Ext.P1 Government order, according to which the students admitted in Self Financing Colleges have to execute a bond undertaking that they would serve the institution for a period of one year as Senior WP(C).Nos.20906 & 21117 OF 2020 13 resident on completion of the postgraduate medical course. Though Ext.P1 order does not provide for retention or production of any certificate, Ext.R3(a) prospectus in Clause 12-2.7 provides that the certificates which are to be submitted at the time of admission will be released only after the completion of the bonded service or in the case of bond violation, liquidated damages shall be paid. Clause 10.2 provides for the certificates in original to be produced at the time of admission which includes pass certificate in MBBS Degree examination. Petitioners have not produced any other prospectus relating to the respondent College to refute the contention of the 3 rd respondent and to substantiate that the provisions in Clause 12.2.7 are not applicable to them or that they are not governed by the provisions in Ext.R3(a). They also have not challenged the provisions therein or in Ext.P1. In the judgment Ext.P4, the Division Bench WP(C).Nos.20906 & 21117 OF 2020 14 was considering a case of 2015 admission, where separate prospectus was available for Government Colleges and Self Financing Colleges. But in the present case it is stated that there is no separate prospectus. Eventhough Ext.P1 Government order does not provide for retention of certificates, Ext.R3(a) prospectus provides for the same. It would also show that allotments to all seats in Self Financing Colleges were made from the rank list prepared by the Commissioner for Entrance Examination based on NEET PG examination conducted by the National Board of Examinations, as in the case of all other Medical and Dental Colleges. Ext.P1 order would show that combined counselling was made in all Medical/Dental Colleges including self financing colleges, pursuant to the direction in the OM dated 10.03.2017 of the Government of India.
8. Though the learned counsel for the petitioners argued that the provisions for execution WP(C).Nos.20906 & 21117 OF 2020 15 of bond and retention of certificates are applicable only for students in Government Colleges, a separate prospectus if any for the particular Financing College is not made available. On the other hand the respondent College relied on Ext.R3(a) prospectus issued by the Commissioner for Entrance Examinations. It was also argued that there is no separate prospectus for the Self Financing Colleges which governs the petitioners who joined in 2017.
Relevant provisions in Clause 12 of Ext.R3(a) prospectus reads as follows:
12.Liquidated Damages and Execution of Bond 12-1. General Terms:
The candidates selected for PG Degree and Diploma courses will have to execute two bonds in stamped paper (all pages of the bond should be in stamped paper) of the total value of Rs.200/- of Kerala stamp paper each at the time of joining the course to the effect that:
12-1(a): He/she shall not discontinue the P.G course that has been allotted to him/her after the Spot allotment Process is completed. xxxx 12-2. Conditions xxx 12-2.5: No admission shall be valid without getting the bond as detailed above executed at the time of joining or within 7 days from the date of WP(C).Nos.20906 & 21117 OF 2020 16 admission at the discretion of the Principal. Any lapse in this would be treated as the liability of the Principal. After 7 days admission is liable to be cancelled.Candidates getting admission in the final allotment will have to execute the bond within 7 days. Othewise their admission would be cancelled and they are bound to pay liquidated damages as mentioned in Clause 13-2.4(i).The original certificates after due verification shall be kept in the safe custody of the Principal concerned till the completion of Senior Residency. The candidates will not be eligible for stipend/salary until the execution of bonds. Format of bond available in the office of the Principal of the Medical College concerned only will be accepted. A copy of the same is also annexed as IX and X. xxxxxx 12.2.7: The certificates which are to be submitted in the colleges at the time of admission will be released only after the completion of compulsory bonded service or in the case of bond violation, the liquidated damages are paid.
9. In view of the aforesaid provisions and the changed circumstances, I am of the view that the dictum laid down in Ext.P4(a) judgment in W.P. (C).No.25957 of 2018 or the judgments Exts.P5 and P6 following the same would not be applicable to the present case. In result, the dictum laid down in the judgment in Ayisha Beegam's case (supra), where this Court upheld similar provisions, would apply to the WP(C).Nos.20906 & 21117 OF 2020 17 present case. Petitioners would therefore be liable to serve the Institution for a period of one year in accordance with the bond executed by them and as directed in Ext.P3 series of letters.
Writ Petitions are accordingly dismissed.
Sd/-
P.V.ASHA, JUDGE AS WP(C).Nos.20906 & 21117 OF 2020 18 APPENDIX OF WP(C) 20906/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE GO(RT)
NO.1366/2017/H AND FWD DATED
15.05.2017.
EXHIBIT P2 A TRUE COPY OF THE BOND EXECUTED BY
DR.SHELA MARY ISSAC DURING MAY 2017- 18. EXHIBIT P3 A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 1ST PETITIONER.
EXHIBIT P3(a) A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 2ND PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE COURT IN WP(C) NO. 25957 OF 2018 DATED 25.03.2019.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 19125 OF 2019 DATED 15.07.2019.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO.
18862/2019 DATED 23.07.2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R3 A TRUE COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO THE MEDICAL POST-GRADUATE DEGREE/DIPLOMA COURSES 2017-18 ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT R3 B TRUE COPY OF THE ORDER DATED 9/5/2019 IN CIVIL APPEAL NO.4560/2019 OF THE HONOURABLE SUPREME COURT OF INDIA WP(C).Nos.20906 & 21117 OF 2020 19 EXHIBIT R3 C TRUE COPY OF JUDGMENT IN AYISHA BEEGAM (DR) AND OTHERS VS. STATE OF KERALA AND OTHERS REPORTED IN 2018(2)KHC 600 EXHIBIT R3 D TRUE COPY OF ORDER DATED 17/9/2018 IN SPECIAL LEAVE PETITION (CIVIL) NO.31242/2018 OF THE HONOURABLE SUPREME COURT OF INDIA WP(C).Nos.20906 & 21117 OF 2020 20 APPENDIX OF WP(C) 21117/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE G.O (RT) NO.1366/2017/H & FWD DATED 15.05.2017.
EXHIBIT P2 A TRUE COPY OF THE BOND EXECUTED BY THE 5TH PETITIONER DURING MAY 2017.
EXHIBIT P3 A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 1ST PETITIONER.
EXHIBIT P3 (a) A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 2ND PETITIONER.
EXHIBIT P3 (B) A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 3RD PETITIONER.
EXHIBIT P3 (c) A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 4th PETITIONER.
EXHIBIT P 3 (d) A TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT DATED 10.09.2020 RECEIVED BY THE 5TH PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE COURT IN W.P(C) NO.25957 OF 2018 DATED 25.03.2019.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C)).NO.19125 OF 2019 DATED 15.07.2019.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C).NO.18862 OF 2019 DATED 23.07.2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R3 A TRUE COPY OF THE RELEVANT PORTION OF THE WP(C).Nos.20906 & 21117 OF 2020 21 PROSPECTUS FOR ADMISSION TO THE MEDICAL POST-GRADUATE DEGREE/DIPLOMA COURSES 2017-18 ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT R3 B TRUE COPY OF THE ORDER DATED 9/5/2019 IN CIVIL APPEAL NO.4560/2019 OF THE HONOURABLE SUPREME COURT OF INDIA EXHIBIT R3 C TRUE COPY OF JUDGMENT IN AYISHA BEEGAM (DR) AND OTHERS VS. STATE OF KERALA AND OTHERS REPORTED IN 2018 (2)KHC 600 EXHIBIT R3 D TRUE COPY OF ORDER DATED 17/9/2018 IN SPECIAL LEAVE PETITION (CIVIL) NO.31242/2018 OF THE HONOURABLE SUPREME COURT OF INDIA