Kerala High Court
Dr. Thomas Pudukkadan vs The State Of Kerala on 2 December, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938
WP(C).No. 27652 of 2016 (F)
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PETITIONER(S)/PETITIONER:
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1. DR. THOMAS PUDUKKADAN,
AGED 33 YEARS,
C/O.ADV P D THOMAS, PUTHUKKADAN HOUSE,
PLOT NUMBER 92, NEHRU NAGAR, THRISSUR.
2. DR.BOBBY IYPE,
AGED 34 YEARS,
S/O.IYPE, MULLACKAL HOUSE,
KUMALLUR P O, KOLLAM DISTRICT.
3. DR.SUDHEER M.D.,
AGED 38 YEARS, S/O.A DIVAKARAN,
ARIYAMPARAMATH HOUSE,
ENGINEERING COLLEGE P.O., THRISSUR DISTRICT.
4. DR.SUPRIYA D. NAMBIAR,
AGED 34 YEARS,
D/O.K T DAMODARAN NAMBIAR,
VASUNDHARA, BALASHRAMAM ROAD,
NEAR IRON BRIDGE,
THRIPUNITHURA, ERNAKULAM DISTRICT.
5. DR.NAJEEB C.A.,
AGED 40 YEARS,
S/O.LATE C K ZAINAL ABDEEN,
CHIRACKAKUDY HOUSE, ALLAPRA P.O.,
PERUMBAVOOR, ERNAKULAM DISTRICT.
6. DR.NIKHIL SURAJ,
AGED 35 YEARS, S/O. P.P. SURAJ,
KRISHNA NIVAS,ERANHOLI ,THALASSERY.
7. DR.JITHN V.T.,
AGED 33 YEARS, S/O.THANKARAJ,
VELIYATH HOUSE, N. ADUVASSERY, ALUVA,
ERNAKULAM DISTRICT.
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WP(C).No. 27652 of 2016 (F)
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8. DR.PRAVEEN PANICKER,
AGED 31 YEARS, S/O.SURENDRA PANICKER,
SURABHI HOUSE, TOPUMKARAMALAYIL,
WEST OTHERA P.O., THIRUVALLA,
PATHANAMTHITTA DISTRICT.
9. DR.NEETHA BELARAM,
AGED 33 YEARS,
M P BALARAAM, NAVANEETHAM,
POST THOTTADA, CHALA WEST, KANNUR.
10. DR.BANJAMIN RAMACHA,
AGED 35 YEARS,
S/O.CHACKO, 'RAMJA',
PADINJATTUMKARA BETHANY,
RUBY NAGAR P.O., CHANGANASSERY, KOTTAYAM.
11. DR.RONY LOUIS,
AGED 36 YEARS, S/O.LOUIS ALLELUIA,
LUI DATE, MUNDACKEL WEST,KOLLAM.
BY ADVS.SRI.C.A.NAVAS
SRI. T.K.SASIKUMAR
SRI.P.A.SHAJI SAMAD
SRI.C.J.SOLOMAN
SMT.E.G.AMBILY
RESPONDENT(S)/RESPONDENTS:
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1. THE STATE OF KERALA,
REPERSENTED BY THE SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM-695 001.
3. THE JOINT DIRECTOR OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM-695 001.
4. THE DIRECTOR OF HEALTH SERVICES,
THIRUVANANTHAPURAM-695 001.
5. THE MISSION DIRECTOR,
NRHM, THIRUVANANTHAPURAM-695 001.
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WP(C).No. 27652 of 2016 (F)
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6. THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE,
THIRUVANANTHAPURAM -695 001.
7. THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE,
THRISSUR.
R1-R4, R6 & R7 BY GOVERNMENT PLEADER SRI.RON BASTIAN
R5 BY SRI.M.AJAY, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-12-2016 ALONG WITH WPC.30644/2016 AND CONNECTED
CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 27652 of 2016 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 THE TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO 533/2008/H & FWD DTD 7/10/2008
EXHIBIT P2 THE TRUE COPY OF THE ORDER NO E4-3822/2011/MCTCR(2)
DTD 11/9/2012 OF THE FIRST PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE ORDER NO.E3-12272/2012/MCT
DTD 2/8/2013 OF THE 2ND PETITIONER.
EXHIBIT P4 THE TRUE COPY OF THE CERTIFICATE NO E4-10123
DTD 13/8/2008 OF THE 3RD PETITIONER.
EXHIBIT P5 THE TRUE COPY OF THE CERTIFICATE NO E9-10979/2011 MCK
DTD 11/9/2012 OF THE 4TH PETITIONER.
EXHIBIT P6 THE TRUE COPY OF THE CERTIFICATE NO E9-18661/2013/MCT
DTD 13/8/2013 OF THE 5TH PETITIONER.
EXHIBIT P7 THE TRUE COPY OF THE CERTIFICATE NO E2-15461/10/MCC
DTD 4/11/2010 OF THE 6TH PETITIONER.
EXHIBIT P8 THE TRUE COPY OF THE NO NIL DTD 19/4/2010 OF THE
7TH PETITIONER.
EXHIBIT P9 THE TRUE COPY OF THE NO NIL DTD 14/3/2008 OF THE
9TH PETITIONER.
EXHIBIT P10 THE TRUE COPY OF THE CERTIFICATE NO E9-9987/2012/MCK
DTD 7/3/2013 OF THE 10 PETITIONER.
EXHIBIT P11 THE TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO 56/2012/H & FWD DTD 16/2/2012.
EXHIBIT P12 THE TRUE COPY OF THE GOVERNMENT ORDER GO(MS)
NO 293/2012/H & FWD DTD 6/9/2012
EXHIBIT P13 THE TRUE COPY OF THE COVERING GOVERNMENT ORDER GO(RT)
NO 1950/2013/H & FWD DTD 5/6/2013 WITH PROSPECTUS FOR
ADMISSION TO POST GRADUATE/SUPER SPECIALTY COURSES,
KERALA 2013.
EXHIBIT P14 THE TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS FOR
ADMISSION TO POST GRADUATE/SUPER SPECIALTY COURSES
KERALA 2015.
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WP(C).No. 27652 of 2016 (F)
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EXHIBTI P15 THE TRUE COPY OF THE NOTICE DTD 29/4/2016
EXHIBIT P16 THE TRUE COPY OF THE ORDER NO B4/20651/2016 DME
DTD 12/8/2016.
EXHIBIT P17 THE TRUE COPY OF THE ORDER NO B4/20651/2016 DME
DTD 12/8/2016
EXHIBIT P18 THE TRUE COPY OF THE ORDER DTD 12/7/2013 IN WPC
NO 18231/2013 AND CONNECTED CASES.
RESPONDENT(S)' EXHIBITS
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EXT.R1(a): TRUE COPY OF THE BOND EXECUTED BY THE 2ND PETITIONER.
//TRUE COPY//
P.S.TO JUDGE
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SHAJI P. CHALY, J.
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W.P.(C). Nos. 27652, 30664, 31031
& 33314 OF 2016
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Dated this the 02nd day of December, 2016
JUDGMENT
The captioned writ petitions are materially connected. They are in respect of a bond to be executed by the petitioners, students of Super Speciality Courses, consequent to a modification made after the admission and during the fag end of the course. Since the subject issue to be considered is common, separate narration of the facts in each of the writ petitions are not required. Facts and documents discernible from W.P.(C). No. 27652/2016 are recited hereunder.
2. Petitioners are doctors, who have completed their Super Speciality Courses, during their academic session, 2013-16, in their respective streams from the Government Medical Colleges in the State of Kerala. Petitioners are aggrieved by the demand made to undergo compulsory government bond period, in addition to the satisfactory completion of the prescribed period of statutory bond W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 2 undergone cumulatively, either after the completion of the MBBS degree course or after the Post Graduate Course.
3. As per the provisions of the Government Order dated 07.10.2008, doctors who have completed various medical Graduate/Post Graduate/Super Speciality courses in Government/Self Financing/Co-operative Medical Colleges in the State are liable to undertake compulsory government bond period, in terms of the bond, they have executed at the time of joining the course. It is very well prescribed in the above Government Order that, bonded obligation is cumulative and can be performed for a total period of one year, either as one time or in intervals cumulatively, after completion of MBBS or after the PG or Super Speciality. It is also prescribed that, those who have undergone bond after MBBS, need not undertake bond after PG or Super Speciality. All the petitioners have successfully completed the compulsory government bond after their respective completion of the MBBS course, as evident from Exts. P2 to P10.
W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 3
4. As per Ext.P11, Government have issued an order prescribing compulsory government bond, after completion of PG and Super Speciality, in addition to the bond mentioned in Exhibit P1 Government Order, which was subsequently cancelled by Exhibit P12 Government Order. So the Government Order, applicable for the petitioners at the time of joining the course was Ext. P1, dated 07.10.2008. Petitioners applied for the Super Speciality Courses for the academic session 2013-16, in respect to the prospectus for the admission to Post Graduate/Super Speciality Courses, Kerala 2013, and are bound only to comply with the conditions in Ext. P13 prospectus of their admission to undertake a bond in cumulative basis. But when 2015 prospectus, namely, Ext. P14 was issued, the Government Order specifically prescribes that no cumulative effect will be rewarded for bonded service done earlier. But Ext. P15 notice is issued clarifying that the Doctors, who have completed the Post Graduate/Super Speciality are bound to perform one year bond irrespective W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 4 of the fact, whether they have completed the bond period earlier or not. By relying on Ext. P15, Exts.P16 and P17 are issued to the petitioners again for the compulsory government bonded service. Here Ext.P15 Government Order is not binding on the petitioners. If at all the same is applicable, it can only be made applicable to the students, who joined the course/courses from the year 2015 onwards. A subsequent piece of legislation made after the petitioners joining the Super Speciality Courses can in no way stand to affect their future, as it has no retrospective effect. Petitioners are bound by Ext.P13 prospectus for the year 2013, by which they got admission and are liable to perform cumulative service, as embodied in Ext. P1.
5. That apart, it is contended that the cumulative effect is taken away in Ext. P14 prospectus issued during the year 2015, therefore, it is the contention of the petitioners that Exts. P14, P15 to P17 can have no manner of binding force over the petitioners. According to the petitioners, Government is prescribing compulsory bond, is W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 5 on the basis that Government is spending huge amount from public exchequer for satisfactory completion of the course of the petitioners. According to the petitioners, the same is outside the scope. Yearly fees of Rs. 72,000/- is collected from each students of Super Speciality Courses. An amount of Rs. 20,000/- is required for books. As the Government is not providing any residential quarters, each one has to bear monthly house rent. Petitioners have also served the Government, even for 24 hours daily for several days/months, that too, without any leave. In fact, Government is spending money for treatment of poor and the petitioners are the intermediary workers for lesser wage, compared to the stipend provided for similarly placed doctors outside the State. It is also stated that the petitioners attaining Super Speciality Degree has to spend around 14 years for their study and service work for poor, if continuously undertaken MBBS, PG and Super Speciality Course, without any break. Therefore, it is the contention of the petitioners that Exts.P15 to P17 are highly arbitrary and W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 6 illegal and are to be interfered by this Court exercising the power of judicial discretion under Article 226 of the Constitution of India.
6. Similar contentions are raised by the petitioners in the other writ petitions and the petitioners in the other writ petitions are also students during the academic session 2013-16.
7. A common counter affidavit is filed by the first respondent in all the writ petitions with adoption memos. According to the first respondent, as per the provisions of the Prospectus for admission, the students have to execute bond, at the time of joining, to the effect that they will serve the Government for a prescribed period after the completion of the course, if the Government requires so. As per clause 13.1.3 of the existing rules, All India Quota students are also bound to do compulsory Government service as part of bonded obligation. It is also stated that MBBS/PG/Super Speciality are different streams in terms of expertise, the service rendered by them is different from W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 7 one another and the students in such courses have submitted separate bond for each courses also. Hence, the compulsory rural service for a period of one month after completing MBBS and Senior residency after PG courses cannot be equated with senior residency done after PG/Super Speciality. The bond executed by the first petitioner in W.P.(C.) No. 27652/2016 is produced as Ext.R1
(a). According to the first respondent, similar bonds are executed by the other petitioners also. The Government of Kerala have established a number of new Medical Colleges in public sector and also have started new PG/Super Speciality courses in the existing institutions. They require a large number of faculties and senior residents. Due to the absence of enough number of faculties and senior residents, Medical Education Service faces a dire situation now. Medical Council of India has pointed out serious deficiency of Senior Residents in almost all colleges, thus affecting the recognition of MBBS and PG courses in most of the colleges, which is likely to hit the medical services in the W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 8 State very badly in the long run.
8. It is under the said circumstances, that the petitioners demand to set off the period of compulsory rural service/PG bonded service undergone by them, after completion of MBBS/PG from the one year senior residency service prescribed for doctors, who complete PG Super Speciality. The same is also not reasonable and is against public interest and which will worsen the scenario, already precariously placed. It is further submitted that the order that the doctors who have completed six months compulsory rural service, after completion of MBBS are not required to work for one year, senior resident service was only for those before 07.05.2015. But thereafter, Government issued a modified order dated 12.05.2015, stating that the PG students upon completion of course should undergo a compulsory senior residency programme for a period of one year by executing a bond. According to the first respondent, by way of giving direction to Dr. Anish, who has applied for bond exemption as he had already W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 9 undergone bonded service earlier, after he complete the post graduate/Super Speciality Course, shall serve the Medical Education services, for a period of one year, as per the Government Order dated 21.03.2016, and wherein it is clearly stated that petitioners are not entitled to subtract the period of compulsory service undergone by them from the one year residency service prescribed for doctors, who have completed post graduation and Super Speciality courses. That apart, it is contended that the students in Government Medical Colleges enjoy the Government machinery for their education, which make their education fruitful and economical as compared to the students in non- Governmental institutions. That apart, it is submitted these students receive all the benefits from the Government. But at the same time, they remit only a small amount as fees, compared to that of the self financing colleges. The expenditure for their education is met from the public exchequer, which thus means from the tax collected from the public. Hence, it is only reasonable and prudent that the W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 10 students, who complete Super Speciality courses undertakes the bond, as provided in Exts. P15 to P17 orders passed by the Government in the said regard.
9. Petitioners have filed reply affidavit to the counter affidavit filed by the first respondent, reiterating the stand adopted in the writ petitions and also contended that the reasons assigned by the first respondent in the counter affidavit cannot have any legal sustenance, since various other courses offered by the Government, the Government is not getting bonded services from them. That apart, it is contended the amount spent by the Government towards the students of Super Speciality Courses is meagre, compared to the expenditure incurred by such students in prosecuting their studies. Therefore, it is submitted that they are not bound by the orders passed by Exts.P15 to P17 subsequent to they securing admission, as per the stipulations contained under Ext. P13 prospectus.
10. Heard learned counsel for the petitioners, learned Government Pleader and perused the documents on record W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 11 and the pleadings put forth by the petitioners.
11. As noted above, the petitioners are students of Super Speciality Courses secured admission, as per Ext. P13 prospectus, dated 05.06.2013, in W.P.(C). No. 27652/2016, According to the petitioners, whatever stipulations contained under Ext. P13 have undertaken by the petitioners. The stipulations contained under Ext. P13 are binding on the respondents also, in the same tenor and terms it is binding on the petitioners. As per Clause 13.1.3. of Ext.P13, it is stipulated that other than the candidates of service quota, will serve the Government of Kerala in Health Service/ Medical Education Service for a period of not less than one year after the completion of the course as per G.O. (MS) No. 533/2008/H & FWD dated 07.10.2008 (wrongly stated in the Clause as 07.08.2008), if the Government desires so. If any one violates the said condition, it will be construed as professional misconduct and the fact reported to the Travancore Cochin Medical Council for suitable action including cancellation of registration by the Council. W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 12 It is also stipulated that a penalty of Rupees Thirty Lakhs will also be levied. According to the petitioners, petitioners have already undergone the said bonded condition and therefore, the subsequent notifications issued, evident from Exts. P15 to P17 are not binding on them. It is a well settled proposition in law, a prospectus issued for conducting admission to a course is the rule and the parties are bound by the same. Respondents have no case that petitioners have not undertaken the bond conditions, as contemplated in Ext. P13. If at all Government orders are issued during the fag end of the Super Speciality Courses undertaken by the petitioners, it cannot bind the petitioners for the reason that parties are bound by the stipulations contained under a prospectus issued for admission to the course.
12. That being the situation, I am of the considered opinion that, if the petitioners have already complied with the agreement stipulations, as per Clause 13.1.3 in the prospectus, dated 05.06.2013, no other stipulations contained in any subsequent notification can be made W.P.(C). Nos. 27652, 30664, 31031 & 33314 OF 2016 13 applicable to the petitioners. Therefore, it cannot be said that the petitioners have violated any conditions of the prospectus in vogue, during the academic session 2013-16. Taking note of the respective submissions made across the Bar and the pleadings put forth, I am of the considered opinion that petitioners are entitled to succeed in the writ petitions and further holds that the stipulation contained under Exts. P15 to P17 will not apply to the students, who have undertaken the course during the period 2013-16. Consequentially, necessary action shall be taken to complete the formalities, if any remaining in favour of the petitioners in various Super Speciality streams, if they have undergone the bonded obligations, as per Ext.P13 prospectus dated 05.06.2013.
The writ petitions are allowed accordingly.
SHAJI P. CHALY JUDGE DCS