Karnataka High Court
Dr K B Geetha vs State Of Karanataka on 7 April, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 07TH DAY OF APRIL 2014
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.49890 OF 2013 (EDN-RES)
BETWEEN:
Dr. K.B. Geetha,
Aged about 49 years,
Wife of Dr. Manju Prakash,
No.60/1, 4th Main,
5th Cross, Chamarajpet,
Bangalore - 560 018.
...PETITIONER
(By Shri. M. Naga Prasanna, Advocate)
AND:
1. State of Karnataka
By its Principal Secretary to
Government, Health and
Family Welfare Department,
Vidhana Soudha,
Bangalore - 560 001.
2. Rajiv Gandhi University of
Health Sciences,
Karnataka 4th 'T' Block,
Jayanagar,
2
Bangalore - 560 041,
Represented by its Registrar.
3. Vydehi Institute of Medical
Sciences and Research Centre,
No.82, EPIP Area, Nallurahalli,
Whitefield Road,
Bangalore - 560 066.
...RESPONDENTS
(By Shri. B. Veerappa, Additional Government Advocate for
Respondent No.1
Shri. N.K. Ramesh, Advocate for Respondent No.2
Shri. V. Ranjith Shanker , Advocate for Respondent No.3)
*****
This Writ Petition filed under Article 226 of the
Constitution of India praying to call for the entire records
pursuant to the relieving order dated 30.10.2013 and to quash
communication dated 3.9.2013 vide Annexure-M issued by the
first respondent and consequently the relieving order dated
30.10.2013 vide Annexure-L issued by the 3rd respondent /
Institute and direct the respondents to permit the petitioner to
continue her Higher Studies at the third respondent / Institute at
her own cost and complete the course uninterruptedly.
This Writ Petition coming on for Hearing this day, the
court made the following:
3
ORDER
Heard the learned Counsel for the petitioner and the learned Government Advocate.
2. The petitioner is said to be a Medical Officer working in the department of Health and Family Welfare (Medical Education) of the State Government. The State Government by its notification dated 21.11.2011, had notified Post-Graduate Entrance Test 2012 for the purpose of determining the eligibility for admission of students to Post Graduate Degree and Diploma Courses in Medical subjects and Post Graduate Degree and Diploma courses in Dental subjects in Government colleges and Government seats in Private Medical and Dental colleges during the year 2012-13. The test was said to have been conducted in accordance with the Ordinance governing the conduct of Entrance Test for admission to Post-graduate Degree and Diploma (Medical and Dental) Courses, 2012. The last date for filling up the online application in terms of the 4 Notification was 31.12.2011. The petitioner had filed her application and was found eligible to take up the entrance test and after addition of the weightage marks for the service rendered by her in the State Government, she was ranked at Serial No.262. The first round of counselling was said to have been held on 17.5.2012, in which the petitioner had participated and was allotted a Diploma seat in Forensic Medicine. Pursuant to which, there was a demand for Rs.3,35,000/-, which was also paid by the petitioner along with her original certificates which were seven in number. The counselling was said to have been held on 17.5.2012. However, the same was stayed by an order of this court in a writ petition in WP 16337-49/2012 and connected cases. That batch of writ petitions was allowed by a learned Single Judge of this court on 8.6.2012, directing holding of recounselling on or before 15.6.2012, which order was challenged before a division bench of this court and the judgment was affirmed by the division bench in WP 2978-86/2012. In terms of the order 5 passed by the division bench of this court, the petitioner was recounselled in the second round of counselling on 13.8.2012. The petitioner was informed at about 3.30p.m., that there were only limited seats available which included 'Bacteriology' . She was told that a particular seat would be blocked for her if she agreed to it and she was told to move to the next table to collect the allotment letter. The petitioner claims that she was asked to sign on the dotted line of the allotment letter dated 13.8.2012. The said letter carried the following declaration:
" I accept the above allotted seat with above condition. If I fail to join the allotted college within the due date I agree to pay a fine of Rs.5,00,000/- for degree/2,50,000/- for diploma."
This, according to the petitioner, was contrary to the notification and brochure published by the second respondent, according to which, the petitioner had participated in the selection process. But out of sheer desperation, she had indeed affixed her signature agreeing to the said imposition. After the provisional allotment was made, the petitioner had decided to 6 forfeit the seat that was allotted to her on 13.8.2012 and sought forfeiture of the seat allotted in Bangalore Medical College, Bangalore in respect of Bacteriology subject. Pursuant to such forfeiture, the second respondent has raised a demand for Rs.2,50,000/- from the petitioner on the ground that the petitioner had been allotted a seat in terms of the provisional letter of allotment dated 13.8.2012, which has set the last date for joining the course as 21.8.2012 and in the event of the petitioner not joining the course by 5 p.m. on 21.8.2012, it would be deemed that she had forfeited the seat and would also be held liable to pay Rs.2,50,000/-. This condition, according to the petitioner, is contrary to the brochure, which was in terms of the Rules. The relevant clause, Clause -10, of the brochure reads as follows :
"Forfeiture of seat selected during counseling:
(a) Every candidate including in-service candidate shall pay a sum of Rs.1,00,000/- (Rupees one lakh only) for Degree and Rs.50,000/- (Rupees Fifty Thousand only) for Diploma to the Government in case he/she takes allotment orders during counseling and fails to join the course. (As 7 amended in Government Notification NO.HFW 592 MPS 2010, dated 18.1.2011 and 07.4.2011).
(b) All the selected candidates except in-service candidates at the time of admission shall furnish a bond on a stamped paper of Rs.100/- binding himself to a sum of Rs.5,00,000/- (Rupees Five Lakhs only) in case of Degree and Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only) in case of Diploma along with the stipendiary amount received by him/her in the event of leaving the course before its completion. (As amended in Government Notification No.HFW 593 MPS 2010 dated 18.01.2011 and 07.04.2011).
(c) All the selected in-service candidates at the time of admission shall furnish a bond in the form specified by the committee on stamp paper of value of Rs.100/-binding himself to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) for Degree and Rs. 2,50,000/- (Rupees Two Lakh Fifty thousand only) for Diploma courses as penalty in the event of his/her leaving the course before its completion and also debarred for three years from appearing entrance test. All the selected in-service candidates at the time of admission shall furnish a bond to the effect that they will be rendering service in the Government for a minimum period of Ten years or till the attainment of superannuation, whichever is earlier. (As amended in Government Notification No.HFW 593 MPS 2010, dated 18.01.2011 and 07.04.2011).
(d) In addition to the prescribed fine, every candidate shall pay the remaining period course fee on his own to the Government/Private colleges in the event he/she leaving the course before its completion.
(e) Candidates selecting Government Colleges and Government seats in Private Colleges (under concession fee) for Post Graduate courses shall furnish an undertaking that he/she will serve the Government for a minimum period of 3 years after completion of the course, if Government desires.
8
(f) Candidates who avail 100% tuition fee reimbursement from the Government shall furnish an undertaking that he/she will serve the Government for a minimum period of 5 years, if Government desires.
(g) A penalty of Rs.5,00,000/- for degree and Rs.3,00,000/- for diploma shall be levied in case the candidates fail to serve the Government after completion of the course as per the undertaking."
The petitioner, by representation dated 21.8.2012, had indicated that she would not be joining the course for which she was allotted a seat and sought forfeiture. She had also declared that she was prepared to pay the penalty of Rs.50,000/- as stipulated and requested the release of original documents, when she, however, was orally informed that unless she paid Rs.50,000/- as stipulated in the allotment letter, her documents would not be returned and the demand draft, which she had deposited in a sum of Rs.3,35,000/- would not be returned to her. Aggrieved by this, the petitioner is said to have approached this court by way of a writ petition in WP 30034/2013. The said petition, after contest, was disposed of in the following terms:
9
" 4. Heard the learned counsel for the parties, perused the pleading and Rule 15 of the Rules. Facts not in dispute that petitioner an in-service candidate when provisionally allotted a seat for admission to D-Bact, failed to join the course by 21.08.2012 hence is liable to forfeiture of Rs.50,000/-, since Clause (a) reads thus:
"Every candidate including in-service candidate shall pay a sum of Rs.1,00,000/- (Rupees one lakh only) for degree and Rs.50,000/- (Rupees Fifty thousand only) for Diploma to the Government in case he/she takes allotment orders during counseling and fails to join the course. (As amended in Government Notification No.HFW 593 MPS 2010, dated 18.01.2011 and 07.04.2011)."
5. Rule 15(c) of the Rules makes the in-service candidates selected for diploma course liable to pay Rs.2,50,000/- in the event of his/her leaving the course before its completion and also debar for 3 years from appearing in the entrance test.
6. Regard being had to Clause (a) of the Rule 15 and applying the same to the facts of this case, undoubtedly, petitioner is liable to pay Rs.50,000/-, which the 2nd respondent is entitled to forfeit from out of Rs.3,35,000/- in deposit and refund the reminder and return the original documents to the petitioner, in any event within 3 weeks. Petition is ordered accordingly." 10
Notwithstanding the above order, the third respondent has issued an order relieving the petitioner from the course with immediate effect on 30.10.2013, enclosing a Directive of the State Government dated 3.9.2013, which had directed the third respondent to do so. This is apparently based on an order dated 22.1.2013, to which the petitioner claims, was not a party in the light of the fact that the petitioner was a student in the 2012 counselling and not in 2013 counselling and the very fact of the petitioner not paying the penalty of Rs.2,50,000/- has been reiterated, though this court had already opined that the penalty that could be imposed was only Rs.50,000/-. It is this which is under challenge in the present petition.
3. The learned Counsel for the petitioner would submit that insofar as the interpretation of the clause pertaining payment of penalty in the event of the petitioner not joining the course has come in for interpretation by this court in WP 30034/2013 and therefore, there was no scope for the 11 respondents to form an opinion notwithstanding the order of this court that the petitioner was liable to pay a penalty of Rs.2,50,000/-, which would apply only if the petitioner had joined the course and quit the course in the mid way and therefore, the demand is unreasonable. And to add insult to injury, the petitioner has now been removed from service. The learned Counsel would submit that the demand is arbitrary and runs not only contrary to the Rule, but also to the express order of this court insofar as the imposition of penalty is concerned. The learned Counsel would contend that the impugned order cannot be sustained and seeks that the petition be allowed, directing the respondents to permit the petitioner to continue the course as a private candidate and not as an in service candidate, which would not entail any expenses to the State.
4. The learned Government Advocate would vehemently oppose the petition and would contend that firstly, the very writ petition is not maintainable as what has been challenged is the communication dated 3.9.2013, which was based on the 12 Govenrment Order dated 22.1.2013 and in the absence of any challenge to the Government Order dated 22.1.2013, which is at Annexure R.1 to the Statement of Objections, the petition ought to be rejected at the threshold. It is secondly contended that the penalty that has been paid is paid to the university and not to the State Government. This was in consideration of the University retaining the original certificates and not as penalty paid to the State Government. The penalty that is payable by the petitioner is Rs.2,50,000/- as this is the penalty fixed in respect of the Diploma course not being taken up. The learned Government Pleader would further contend that such conduct on the part of the petitioner would deprive another deserving candidate of a seat, which goes vacant on account of the seat being reverted to the management. He would further contend that in view of the petitioner having categorically undertaken to pay a penalty of Rs.2,50,000/- in the event she did not join the course, it would not be available for the petitioner to contend that she is not liable to pay the penalty and the petitioner is 13 estopped from doing so. The petitioner ought to have obtained prior permission from the Government in having joined yet another course and therefore, even if the petitioner is to be considered for any relief, it should be left open for the respondents to take action in respect of such misconduct on her part in not having obtained permission from the State Government.
The learned Counsel also places reliance on a decision of the Supreme Court in the case of Sant Longowal Institute of Engineering and Technology and another vs. Suresh Chandra Verma, 2013 AIR SCW 4368 and seeks to draw sustenance from the same.
5. In the above facts and circumstances, insofar as the question whether the petitioner was liable to pay penalty of Rs.2,50,000/- or Rs.50,000/-, the question has been settled by the earlier decision of this court. It would be unnecessary to reiterate the same. The petitioner having withdrawn from the 14 course even before joining and not having joined the course, it is only a sum of Rs.50,000/-, which would be payable by her. The amount having been paid albeit to the university, it is merely the question of the university being directed to transfer the amount of Rs.50,000/- to the State Government as being the penalty paid by the petitioner that is to be considered. The contention that the writ petition is invalid as it does not seek to challenge the order dated 22.1.2013 is also not relevant as it cannot be said that the same had been communicated to the petitioner. The further action on the part of the State to direct that the petitioner pay a sum of Rs.2,50,000/- and on her failure to pay the same, she shall be removed from the course is also arbitrary and is not in accordance with the rule nor is it in compliance with the direction issued by this court in the earlier proceedings. Therefore, on the face of it, there is no justification in the State demanding a penalty of Rs.2,50,000/- , having removed the petitioner from the course on non-payment of the same. The reliance placed on the decision of the 15 Supreme Court in Sant Longowal, supra, is also not relevant. It would clearly be a case which would be akin to a candidate having joined the course and having quit the course midway. Therefore, the said decision would not advance the case of the State.
Consequently, the petition is allowed. The impugned order stands quashed. The further order relieving the petitioner from the course is also bad in law and is accordingly set at naught and the third respondent is directed to permit the petitioner to continue the course that she has joined.
Sd/-
JUDGE nv