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Friday, June 21, 2013

Rural posting must for MBBS doctors pursuing post-graduation

From http://timesofindia.indiatimes.com/india/Rural-posting-must-for-MBBS-doctors-pursuing-post-graduation/articleshow/20691808.cms NEW DELHI: The MBBS doctors aspiring to pursue post-graduation will now have to compulsorily undertake a one-year rural posting before becoming eligible for such a course. In a major decision aimed at improving rural healthcare in India, the Union government has decided to make it mandatory for all MBBS doctors to undergo one year rural posting to sit for post-graduation entrance examination. According to health ministry sources, a proposal to this effect was cleared by the ministry recently and Medical Council of India (MCI) is in the process of issuing a notification. "The decision will be applicable from the next academic session (2014-15). All MBBS graduates seeking a post-graduate degree would have to work for one year in a village before they can take the PG entrance examination," said a senior official. He said the MBBS course structure and duration will remain the same. The decision came after two years of deliberations, as the earlier proposal of increasing the duration of the MBBS course to include a rural posting for doctors was scuttled after stiff opposition. But now the ministry seems to have decided on it in view of the scarcity of medical professional in medical facilities in the rural areas. Health ministry statistics show there is more than 60% shortage of general doctors and over 80% of specialist doctors in rural India. "The initiative to make rural posting compulsory is key to addressing the need of more doctors for rural areas. It will be notified soon," said Dr Jagdish Prasad, the Director General of Health Services (DGHS). A senior MCI official said, "Those candidates who do not want to do a rural posting would be free to practice MBBS after they get their degrees following the internship. The MBBS course structure and duration will remain the same. The only change is one year rural posting will be made the eligibility condition for those wanting to pursue MD and MS." Earlier, there was a proposal to increase the current duration of the MBBS course by one year and use the additional year for a village posting of MBBS students. The proposal wasn't found feasible as it meant that students would only get provisional MBBS degrees at the completion of their internship and final MBBS degrees only after the completion of a rural posting. Every year, close to 40,000 students graduate with MBBS and most of them wish to pursue post graduation. The move, skeptics say, may hit students' zeal to go in for higher medical education unless suitably modified to reward them for undertaking a rural posting. MCI sources said MBBS doctors going for rural posting from the next year may be given financial incentives but that component of the proposal is yet to be finalized.

Tuesday, June 18, 2013

Apollo docs booked in 2009 'negligence' case

Please read http://www.aalatimes.com/wp-content/uploads/2013/06/order780.pdf From http://www.deccanherald.com/content/338854/apollo-docs-booked-2009-039negligence039.html Six doctors of Apollo Hospital have been booked for causing death by negligence of a 70-year-old man admitted to the hospital in south-east Delhi’s Sarita Vihar in 2009, police said on Friday. “We have examined the case in detail and found that there was definitely no medical negligence. The patient had multiple pre-existing co-morbid conditions including uncontrolled diabetes, heart and kidney disease. Appropriate medical care and treatment was provided by a competent multi-disciplinary team of doctors and support staff but the patient, sadly, succumbed to his illness. The allegations have no merit whatsoever, and it is very unfortunate that attempts are being made by the complainant to defame and harass the hospital and its doctors. Apollo Hospitals is committed to providing the best care to its patients,” said a statement by the hospital late on Friday night. The Delhi Medical Council also said that according to its report, the patient was duly treated as per established norms. A case was filed with Sarita Vihar police station on May 31 over an order of Saket court after a complaint by Sarita Vihar-resident Meenakshi Jain. The doctors named in the case are Saket Goel, Vinayak Agarwal, S Wangnoo, Rajesh Chawla, Sanjeev Jasuja and S Chatterjee. The hospital has also been named as one of the accused in the complaint. Meenakshi’s father Pawan Kumar Jain was admitted to the hospital on March 6, 2009 with a provincial diagnosis of perianal abscess. Pawan was a known case of diabetes, hypertension and coronary artery disease, for which he was on medication. “It is alleged that after remaining in the hospital for 27 days, Pawan died on April 1, 2009, due to gross, grave, reckless and culpable criminal negligence of the accused, who had vision, reasonable foresight and complete knowledge and awareness of the consequences of their acts, but showed thorough disregard and indifference,” a police officer said quoting Meenakshi’s allegations. Meenakshi alleges that there was unreasonable delay in conducting surgery for drainage of perianal abscess. “It is claimed that the surgery was performed after an unjustified delay of 20 hours from the time of admission,” the officer added. It is further alleged that cardio-protective medications were discontinued prior to surgery and were not restarted. There was discontinuation of cardiac medicines by the doctors, which were regularly taken by Pawan and which were essential for his cardiac health. “The medicines, especially Tab Deplatt-A, were discontinued and never started again. This contributed to my father suffering a heart attack on March, 27, 2009,” Meenakshi alleges. It is also alleged that anaemia was not corrected on time which proved hazardous for Pawan. It is further alleged that hyponatremia, very low albumin and plasma proteins and blood gases were not managed at all. Meenakshi alleged that had proper diagnosis been made on March 26, 2009 or the morning of March 27, 2009, the heart attack could have been prevented. The hospital and the doctors now face charges under sections 304-A (causing death by negligence), 465 (forgery) and 471 (using forged document as genuine). Dr Goel, however, said Pawan was in sepsis at the time of admission. He told the Delhi Medical Council that he had planned a surgery, but in addition to perianal abscess, Pawan had other co-morbidities which needed to be stabilised. “The patient was evaluated by the cardiologist, nephrologist and anesthetist. After the patient had been pre-operatively evaluated, stabilised, he was taken up for surgery under high-risk consent on March 7, 2009,” Dr Goel told DMC. Debridement was personally done by Dr Goel everyday till March 26, 2009 after which Pawan was seen by Dr Govil.

Only way to avoid gangrene is not by giving injections

From http://www.deccanherald.com/content/337229/manipal-hospital-pay-rs-51l.html Manipal Hospital Bangalore and its four doctors have been directed by the apex consumer forum to pay Rs 5.1 lakh towards rehabilitation of a minor girl whose right forearm was amputated due to their negligence. The National Consumer Disputes Redressal Commission (NCDRC) observed that due to the medical negligence of the hospital and its doctors - pediatrician Meera Ramakrishnan, vascular surgeon Vasudeva Rao, consultant paediatric Arvind Shenoy and paediatric surgeon Jayanth Iyengar - "the child has to spend the entire life without her right forearm". "... doctors of the hospital have not able to explain how the gangrene of right hand occurred. Therefore, in the instant case medical negligence is clearly established and for which opposite parties (hospital and the doctors) are liable. "Opposite party 1 (Manipal hospital) being employer is vicariously liable for negligence committed by the doctors and the nursing staff working in the hospital. ... the child has to spend the entire life without her right forearm," a bench presided by Justice Ashok Bhan said. The bench directed the hospital and doctors to jointly pay Rs 5,00,000 to parents of the child "for rehabilitation of baby Sandria by providing artificial limb and proper education and care" and also ordered Manipal hospital to pay Rs 10,000 as cost. The order came on the appeals filed by the parents of the child, Alfred Benedict and Rani Benedict, and the hospital and doctors, both sides challenging the order of the state commission which had directed the hospital and doctors to pay Rs 5.1 lakh as compensation to the minor girl's parents. The parents in their complaint before the Karnataka state commission had submitted that in August 2002 they had taken their then two-year-old daughter, who was suffering from cold and cough, to Dr Shenoy who had advised them to admit the child in Manipal Hospital Bangalore. Thereafter, she was diagnosed as suffering from pneumonia and was given intravenous fluids by inserting a needle into her right arm, they said. The parents had alleged that due to the doctors' negligence in inserting the needle into the child's arm, blood supply was blocked due to which gangrene developed and resulted in the amputation of the right forearm. While the parents had sought enhancement of compensation from the NCDRC, Manipal Hospital and the doctors contended they had not been negligent in their treatment of the child and the unfortunate complication occurred as the patient who was suffering from pneumonia had gone into septic shock. The NCDRC, however, rejected the hospital's contention, saying "it appears they (doctors) have not followed the standards of medical practice" while treating the patient.

Tuesday, June 04, 2013

Bond in TNPG is must for All India NEET Candidates also

Dr.Rajanikanth,V.S vs The Director Of Medical Education on 25 July, 2011 DATED : 25.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16854 to 16860 of 2011 and M.P.Nos.1 to 3 (7) of 2011 Dr.Rajanikanth,V.S. .. Petitioner in W.P.No.16854 of 2011 Dr.M.Vinodh .. Petitioner in W.P.No.16855 of 2011 Dr.Mullai Baalaaji, A.R. .. Petitioner in W.P.No.16856 of 2011 Dr.Faslu Rahman, N.K. .. Petitioner in W.P.No.16857 of 2011 Dr.Anoop C.Haridoss .. Petitioner in W.P.No.16858 of 2011 Dr.R.S.Arun Visvarajan .. Petitioner in W.P.No.16859 of 2011 Dr.S.Arul Kumar .. Petitioner in W.P.No.16860 of 2011 Vs. 1.The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-10. 2.The Director of Public Health and Preventive Medicine, The Directorate of Public Health and Preventive Medicine, Egmore, Chennai-8. .. Respondents 1 and 2 in all writ petitions 3.The Dean, Madurai Medical College, Madurai-20. .. 3rd respondent in W.P.No.16854 of 2011 4.The Chairperson of the Board, The Medical Council of India, Sector 8, Pocket 14, Dwaraka-1, New Delhi-110 077. .. 4th Respondent in all writ petitions The Dean, Stanley Medical College, Chennai-1. .. 3rd respondent in W.P.Nos.16855, 16859 and 16860 of 2011 The Dean, Madras Medical College, Chennai-3. .. 3rd respondent in W.P.Nos.16856 and 16858 of 2011 The Dean, Thanjavur Medical College, Thanjavur. .. 3rd respondent in W.P.No.16857 of 2011 These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent pertaining to the communication issued by the second respondent to the first respondent bearing R.No.44269/E5/A4/2011 dated 27.5.2011 and quash the same and consequently to direct the respondents to permit the petitioners to pursue their higher studies by granting a specified break of a minimum of 3 years from the date of completion of the postgraduate course and thereafter seek to insist the compulsory temporary service as stipulated in the prospectus 2008-2009 or impose the bond as the case may be. For Petitioners : Mr.A.Palaniappan in all writ petitions For Respondents : Mr.V.Subbia, Spl.G.P. for RR1 to 3 in all writ petitions - - - - COMMON ORDER The petitioners in these batch of writ petitions have originally passed M.B.B.S. Examinations. Thereafter, they wrote the All India Entrance Examination in the year 2008 for doing Post Graduation in Medicine in different disciplines. The petitioners on being selected for the P.G. Courses, have undergone the said course in different colleges under non service category. The prospectus for the year 2008-2009 for admission to Post Graduate Diploma / Degree / M.D.S. / Five year M.Ch.(Neuro-Surgery) Courses was issued by the Selection committee of the Directorate of Medical Education, Chennai. It had stipulated several conditions. Paragraph 64 of the prospectus had stipulated payment of stipend and conditions relating to security amount. 2.Since the present writ petitions revolve around the conditions stipulated in the prospectus, it is necessary to extract the said condition, which is as follows: STIPEND AND SECURITY AMOUNT : 64 (a)All Non Service candidates selected will be paid stipend and service candidates salary as per the Government Orders in force. (b)The Government of Tamil Nadu is offering Medical Education including Post-Graduate and Higher Speciality Training through its 14 Medical Colleges / Hospitals and Specialised institutes. The Government spends a large amount of money to impart Medical Education including Post-Graduate / Higher Speciality Education. It levies nominal fees and at the same time provides a stipend to Private candidates and salary to Service candidates. It is natural that the Government desires to ensure that seats are not wasted. Further, the Government looks forward to these Doctors who have undergone Post-Graduate training to serve the poor and the needy of this country at large and this State in particular. The public have the right to expect the Specialists to utilize the skills they acquired during their training for the benefit of the sick, the poor and the needy. To ensure that the services of trained Post Graduate Doctors are made available, an Under-taking is obtained from them at the time of their admission. It is sincerely, believed that this will discourage an attitude of not paying attention to those poor people at whose expense they have been educated. (c)All Service Candidates of Tamil Nadu shall execute a bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) for Diploma courses and Rs.10,00,000/- (Rupees ten lakhs only) for Degree courses and MDS / 5 year M.Ch. Neuro-Surgery courses as security amount with the undertaking that they will serve the Government of Tamil Nadu till Superannuation. Two permanent Government servants in the same or higher rank than the candidate shall execute sureties. The prescribed form will be available in the colleges at the time of admission. The bond will become infructuous if the service candidates serve the Government of Tamil Nadu after the completion of the Course until superannuation. (d)Non-Service candidates shall execute a bond for a sum of Rs.3,00,000/- (Rupees Three lakhs only) on admission to Post Graduate Diploma courses and 5,00,000/- (Rupees Five Lakhs only) for the Post Graduate Degree courses /MDS / M.Ch. (Neuro-Surgery) 5 years course of the 2008-2009 session undertaking that they shall serve the Government of Tamil Nadu for a period of not less than 2 years, if required. During the above period, they will be paid a salary on par with the fresh recruits of the Government of Tamil Nadu Medical Services and the Government of Tamilnadu will requisition their services, if required, within a period of 2 years from the date of completion of their Postgraduate Degree/Diploma/MDS/M.Ch.,(Neuro Surgery) 5 years Course. Two permanent Government servants shall be sureties. The prescribed form of bond will be available in the Colleges at the time of admission. The bond will become infructuous if he/she serves the State Government of Tamil Nadu if required for minimum period of 2 years. (e)For any reason, the candidate is unable to serve the Government for the above said period, the bond amount has to be credited to the relevant Head of Account. (f)The Bonds are governed by clause (c) exemption under article of 57 schedule-I to the Indian Stamp Act / Central Act of 1879. Hence the bond executed need not be stamped." 3.The petitioners were selected pursuant to their applications made. They did not challenge the conditions found in the prospectus. After they being successful in the selection, they were admitted to different colleges for completing their P.G. Courses. They had also signed a bond as provided under paragraph 64(d) set out above. After completing the courses as per the condition stipulated in the prospectus and agreed to by the petitioners in executing a bond, the second respondent Director of Public Health and Preventive Medicine, Chennai sent a communication to the Director of Medical Education, dated 27.5.2011 asking to inform the candidates to appear for counselling at Chennai for the purpose of issuing appointment orders under Rule 10(a)(i) of the Tamil Nadu General Service for rendering compulsory service under the Tamil Nadu Medical service. The list of 497 candidates who had agreed to render service as per prospectus and the bonds executed were also furnished to the Director of Medical Education and that the counselling was fixed on 6.6.2011. The counseling was for the purpose of allotting them to appropriate hospitals under the control of the second respondent. The petitioners after completion of their P.G. Courses had also applied for P.G. Super Speciality courses for the year 2011 and they had also written the examination. They were admitted to the examination under the condition that they should produce the original certificate pertaining to graduation and Post Graduation which is presently held by the college in which they are studying. If certificates are not produced, they will not be able to undergo the Super Speciality course. They have right to proceed with the Super Speciality course which is a guaranteed fundamental right. It is in that premises, the writ petitions came to be filed. 4.It was contended by the petitioners that the condition imposed for rendering compulsory service in the Tamil Nadu Medical service is in violation of provisions of the Fundamental Right enshrined under Articles 14, 19(1)(g) and 21 of the Constitution of India. The second contention raised was that at the time of admission, the respondents cannot impose such onerous condition and pursuant to the condition, they cannot be asked to render compulsory service. The condition imposing two years compulsory service also deny the right to carry on further education by pursuing Super Speciality course which is in violation of ratio laid down by the Supreme Court in Saurabh Chaudri (Dr.) and others Vs. Union of India and others reported in (2004) 5 SCC 618. In paragraph 28, the Supreme Court had observed as follows: "28.Right of a meritorious student to get admission in a postgraduate course is a fundamental and human right, which is required to be protected. Such a valuable right cannot be permitted to be whittled down at the instance of less meritorious students." 5.The condition imposed in the prospectus followed by a bond that they should serve two years immediately after completion of the P.G. Course even before pursuing the Super Speciality course is waste of scores of super speciality courses. The condition imposed is an extraneous condition. It blocks the meritorious candidates from pursuing their education. Further, it was stated that the compulsory services should be insisted only when relevant vacancy is there with reference to the super speciality course. If for the post graduation degree obtained by candidates, if there are no vacancies available, they should be allowed to continue their further studies without insisting the bond condition. 6.The premises under which compulsory service was enlisted was that there was expenditure of large amount of money to impart medical education has been done by the Government is a falsely woven narrative. The stipend given to students is only quid pro quo to the services rendered by them. The imposition of compulsory service on the premises that the P.G. education in medicine is subsidized in Government colleges is a misnomer. The amount paid to P.G. Students for three years course as stipend, i.e. Rs.15,000/- per month for the first year, Rs.16,000/- per month for the second year and Rs.17,000/- per month for the third year is substantially low comparing to the stipends paid all over the Country in similar institutions. The petitioners are also willing to serve compulsory service after completing their speciality course. They must be allowed to appear for the higher education examination without insisting the bond condition. The imposition of such bond condition at the time of joining service was irrational. Seeking to withheld the educational certificate submitted by them at the time of joining the course is unjustified and unsustainable in law. 7.Further asking non service candidates who are undergoing the course for P.G. Degree in the Government colleges will only make all the super speciality courses occupied by candidates who had completed the course in private colleges, thereby unmeritorious candidates having a march over the meritorious candidates. It was also stated that since the prospectus for All India Entrance Examination for P.G. Course for 2008 did not prescribe for compulsory temporary service, the prescription of such condition is invalid. 8.Taking the last contention first, it must be noted that even in the prospectus for All India Entrance Examination, in paragraph 11(h), it was stated as follows: "(h)Stipends/fee structure/course duration/bond amount/rendering of service in rural/tribal area/other conditionalities etc. may vary from State to State and Institute to Institute. Some seats may be approved but not yet recognised by MCI or non-stipendiary. The allotment made through counselling on personal appearance will be firm and final as per Hon'ble Supreme Court's guidelines. Therefore, the candidates should well examine these points before opting a seat at a medical college. The Directorate General of Health Services (DGHS) shall neither be responsible nor shall entertain any case on above grounds including the law and order problems, if any." (Emphasis added) 9.Therefore, it is not as if the petitioners were not aware of such condition or they did not agree to write the examination only on the basis of the said condition. The counsel for the petitioner relied upon an order passed by this court in a batch of writ petitions in W.P.No.12885 of 2008 and batch cases in Dr.S.P.Maharajan and others Vs. State of Tamil Nadu and others, dated 20.11.2008. In that case, in paragraph 10, the court had observed as follows: "10....The respondents are directed to return the certificates/documents sought for by the petitioners individually by the respective Deans of the various Medical Colleges, within a period of two weeks from the date of receipt of a copy of this order. If the Deans of the respective Medical Collage come across any violation of the conditions of bond executed by each of the petitioners, it is open to him to enforce the terms of the bond in the manner known to law...." 10.The learned counsel also referred to an another order passed by this court in a batch of writ petitions starting from W.P.No.12923 of 2008 in Dr.S.Rajesh and others Vs. The State of Tamil Nadu and others, dated 12.12.2008, wherein this court gave the following directions in paragraph 30 of the order, which reads as follows: In fine, all the writ petitions are disposed of on the following terms: (1)The PG Degree/Diploma Holders, who applied for their Degree/Diploma course though All India Entrance Examination for selection to all India quota seats and admitted to Tamil Nadu Government Medical Colleges are not bound by the terms and conditions issued by the respondents through their prospectus. Even if any candidate executed bond, it will have no effect since they have not applied for admission under the impugned prospectus. (2)The candidates admitted in the state Quota under the Non-Service category are bound by the terms of the bond executed by them pursuant to the prospectus Clause 68(d) and on completion of their course, they are bound to serve in Government Collages/Hospitals according to the availability of posts for three years, failing which it is open to the respondents to recover the sum of Rs.2/Rs.3 lakhs as the case may be, as per the bond conditions. (3)No PG Degree/Diploma Holder shall be denied of their certificates in original on their completion of their course as the respondents have no jurisdiction to retain their certificates and the respondents are directed to return all the certificates of the petitioners within two weeks from the date of the receipt of copy of this order. (4)No PG Degree/Diploma Holder, who completed their course or joined in Government Service temporarily as per the bond, shall be denied of opportunity of applying for super speciality course and if they are selected, they should be permitted to undergo the course subject to the condition that remaining period of service shall be served in the Government Institutions by the concerned person after the completion of their respective super speciality course. If not, it is open to the respondents to recover the bond amount with proportionate interest." 11.But, this order fails to take note of the condition stipulated in the prospectus for All India Entrance Examination in paragraph 11(h) wherein all candidates are bound to abide by the conditions imposed by the respective States and students were asked to go through it carefully before opting for seat in a particular medical college. Therefore, there is no escape for the petitioners to comply with the conditions of bond. In the very same judgment, the court had also held that those who were coming under the State quota were bound by the bond. If that is true, the same condition would apply even to candidates who came through the All India quota as the prospectus of the All India quota contemplated bond conditions imposed by respective State Governments. The petitioners having fully understood the condition and have signed, it will not be open to them to escape from such a condition. The reason prompted the Government to impose the condition cannot be said to be either unreasonable or arbitrary having regard to the circumstances set out in paragraph 64 of the prospectus. 12.The Saurabh Chaudri's case (cited supra) relied upon by the petitioners has no relevance to the facts on hand, since that was a case of reservation of seats vis-a-vis right of parties under Articles 15(4) and 16(4) and reasonableness of the State policy. It is not as if the bond condition makes compulsory service and there is no way out for the petitioners. The very same bond has quantified liquidated damages that is to be provided by the candidates in case they do not want to oblige the bond. The assertion that they are willing to come back to the State service after completion of super speciality course will amount to re-writing the conditions of bond. Once the petitioners are called upon to attend the counselling for grant of necessary posting and if they do not want to get posting for rendering compulsory service, then they must necessarily pay the amount specified for breach of bond. In the present case, there is not even a challenge to the insertion of such clause in the prospectus or unreasonableness of the amount quantified for breach of bond. The petitioners had executed the bond on their own volition and there was no compulsion or contravention of provisions of the Indian Contract Act, 1872. 13.In cases of breach of contracts, Section 73 provides for compensation of loss or damages caused by breach. Section 73 reads as follows: "73. Compensation for loss or damage caused by breach of contract. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract." 14.If a party enters into a contract and the damages are quantified, the question of assessing actual damages will not arise as held by the Supreme Court in Chunilal V. Mehta and Sons Ltd. vs. Century Spg. & Mfg. Co. Ltd., reported in 1962 Supp (3) SCR 549 = AIR 1962 SC 1312. In paragraph 11 of the order, the Supreme Court observed as follows: "11....Again the right to claim liquidated damages is enforceable under Section 74 of the Contract Act and where such a right is found to exist no question of ascertaining damages really arises. Where the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breach...." 15.The Supreme Court further held that if the terms of contract provides for certain rates after entering into contract, it is not open to consumer or any contracting party to state that the terms are not fair as held by the Supreme Court in S. Narayan Iyer v. Union of India reported in (1976) 3 SCC 428. In paragraph 6, the Supreme Court held as follows: "6.There are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe......." 16.The Supreme Court after analysing the English decisions which have bearing on the question of "inequality of bargaining power" vide its judgment in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, reported in (1986) 3 SCC 156 dealt with the concept under Indian Law with Constitutional backdrop. It is necessary to extract the following passages found in paragraph 83, 90 and 91, which is as follows: "83....It was in Lloyds Bank Ltd. v. Bundy232 that Lord Denning first clearly enunciated his theory of inequality of bargaining power . He began his discussion on this part of the case by stating: (at p. 763) There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms, when the one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall. Hitherto those exceptional cases have been treated each as a separate category in itself. But I think the time has come when we should seek to find a principle to unite them. I put on one side contracts or transactions which are voidable for fraud or misrepresentation or mistake. All those are governed by settled principles. I go only to those where there has been inequality of bargaining power, such as to merit the intervention of the court. (emphasis supplied) He then referred to various categories of cases and ultimately deduced therefrom a general principle in these words: (at p. 765) Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on inequality of bargaining power . By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word undue I do not mean to suggest that the principle depends on proof of any wrongdoing. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing to the other. I have also avoided any reference to the will of the one being dominated or overcome by the other. One who is in extreme need may knowingly consent to a most improvident bargain, solely to relieve the straits in which he finds himself. Again, I do not mean to suggest that every transaction is saved by independent advice. But the absence of it may be fatal. With these explanations, I hope this principle will be found to reconcile the cases. (emphasis supplied) .......... 90. It is not as if our civil courts have no power under the existing law. Under Section 31(1) of the Specific Relief Act, 1963 (Act 47 of 1963), any person against whom an instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. ...... 91.......Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable, are injurious to the public interest. To say that such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no court should encourage and would also not be in the public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void. While the law of contracts in England is mostly judge-made, the law of contracts in India is enacted in a statute, namely, the Indian Contract Act, 1872. In order that such a contract should be void, it must fall under one of the relevant sections of the Indian Contract Act. The only relevant provision in the Indian Contract Act which can apply is Section 23 when it states that The consideration or object of an agreement is lawful, unless ... the court regards it as ... opposed to public policy. (Emphasis added) 17.As to whether such agreement could be enforced came to be considered by the Supreme Court in M. Sham Singh v. State of Mysore reported in (1973) 2 SCC 303. In paragraph 8 of the order, the Supreme Court held as follows: "8. .... The High Court is quite right in saying that when the appellant came to Bangalore in July 1950 he did not do so for the purpose of staying at Bangalore and accepting any employment which might be offered to him. He had to come as he admitted in his own letters, on account of domestic reasons. He wanted to go back and finish that period of training with the General Electric Company. He sought permission in that behalf and was allowed to return to the United States for that purpose. We are unable to see how in these circumstances the Government was bound to offer him any employment within a period of six months from July 18, 1950. By writing the letter, dated November 27, 1950 the appellant had unequivocally indicated his desire to finish the training with the General Electric Company. He had made no suggestion and given no hint that he was waiting for the offer of any employment. The period of six months was to expire on January 18, 1951 whereas the letter, dated November 27, 1950 was written well before that date. The mere fact that he left after the expiry of the period of six months would not show that he had returned to Bangalore and was waiting for any employment being offered to him within six months of his arrival in terms of the bond. It is significant that in the letter, dated November 27, 1950 he had reiterated his assurance that he would place his services at the disposal of the Government on his return provided a suitable position was available. This shows that he was fully conscious of what the true legal position was. Instead of returning to India the appellant chose to take up a job at San Francisco. Surely the Mysore Government had not expended all the amount in question on the studies of the appellant to enable him to seek employment on his own without first placing his services at the disposal of the Mysore Government which he was legally bound to do under the terms of the bond and the subsequent mutual agreement between the parties." (Emphasis added) 18.The Supreme Court has also held that in case of specific performance of an obligation is impermissible in respect of contract to render personal services, damages is the only remedy vide its decision in Nandganj Sihori Sugar Co. Ltd. v. Badri Nath Dixit reported in (1991) 3 SCC 54. The Supreme Court in paragraph 11 of its judgment observed as follows: "11. ..... Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts....." 19.It must be held that the conditions of the bond executed by them neither suffers from any arbitrariness nor it was done due to any unequal bargaining power. On the contrary, the petitioners are qualified and trained medical doctors and have undergone P.G. Medical courses. Therefore, it cannot be said that they have signed it with an unequal bargaining power. This is especially so when there are thousands of candidates standing in queue for direct selection to PG courses and the petitioners had the advantage of being selected. If they had to resile from the terms of the bond relating to compulsory service, there is no other option except to pay the quantified damages as agreed to by them in the bond. 20.This court is not inclined to go into the quantum of quantified damages and the term stipulated do not indicate that it was either arbitrary or fixed on any fancy basis. Even at the time of admission to the PG course, the petitioners were aware of such condition in the prospectus stipulated in respect of the Government hospitals. The present term is more or less similar to the condition stipulated by the State Government in respect of its employees. 21.In view of the above, the contentions raised by the petitioners must necessarily fail. However, if the petitioners are willing to pay the amount undertaken by them in the bond, the respective colleges in which their certificates are retained are bound to return those certificates. With this observation all writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions stand closed. vvk To 1.The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-10. 2.The Director of Public Health and Preventive Medicine, The Directorate of Public Health and Preventive Medicine, Egmore, Chennai-8. 3.The Dean, Madurai Medical College, Madurai-20. 4.The Chairperson of the Board, The Medical Council of India, Sector 8, Pocket 14, Dwaraka-1, New Delhi-110 077. 5.The Dean, Stanley Medical College, Chennai-1. 6.The Dean, Madras Medical College, Chennai-3. 7.The Dean, Thanjavur Medical College, Thanjavur

Sunday, June 02, 2013

TNPSC 2005 : Not signed in Application : Vennila vs State Of Tamil Nadu on 30 October, 2007

DATED: 30.10.2007 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1028 of 2007 Vennila .. Petitioner Vs. 1. State of Tamil Nadu rep. by the Secretary to Government Dept. of Prohibition & Excise, Secretariat, Fort St.George, Chennai 600 009. 2. The Commissioner of Police Greater Chennai, Office of the Commissioner of Police, Egmore, Chennai. 3. The Inspector of Police, K-9 Thiru.Vi.Ka.Nagar Police Station, Chennai. .. Respondents ----- Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Habeas Corpus as stated therein. ----- For Petitioner : Mr.J.Srinivasan For Respondents : Mr.N.R.Elango Additional Public Prosecutor ----- O R D E R (Made by P.D.DINAKARAN,J.) The petitioner, wife of the detenu, Kumaresan, who was incarcerated by order dated 21.6.2007 of the second respondent under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a Goonda, seeks a writ of Habeas Corpus to call for the records in connection with the order of detention passed in proceedings 257/BDFGISSV/07, to set aside the same and to produce the detenu, now confined at Central Prison, Puzhal, Chennai before this Court and set him at liberty. 2. On the basis of a complaint lodged by one Dinesh that on 6.6.2007, the detenu wrongfully restrained and threatened him at the knife point and forcibly took Rs.500/- and a cell phone from his pocket and also threatened the public who came for his rescue that they would be killed and hurled the bottles taken from the nearby bunk shop in the road, which scattered all over the roadside and also made them to run on all sides seeking shelter resulting in traffic dislocation, the detenu was arrested and a case was registered in Crime No.889/2007 on the file of K9, Thiru Vi Ka Nagar Police Station, for the offence punishable under Section 392, 397 and 506(2) IPC. 3. The second respondent, taking note of the above case as a ground case and six adverse cases, ordered his detention dubbing him as a goonda. 4. The main contention of the learned counsel for the petitioner assailing the order of detention is that while all the adverse cases referred to in the grounds of detention relate to the offence punishable under Section 379 IPC (theft cases), the solitary instance of robbery mentioned in the ground case is not relevant for sustaining the order of detention. The learned counsel, in support of the said plea, relied upon the decision of the Apex Court in DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446]. 5. We have heard learned Additional Public Prosecutor on the above said point. 6. As rightly pointed out by the learned counsel for the petitioner, it is evident that the adverse cases mentioned in the grounds of detention do not relate to any law and order problem. But, the offence said to have been committed by the detenu as per the ground case attracts the provisions of the Tamil Nadu Act 14 of 1982. 7.1. In DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446], cited supra, whereunder the order of detention was based on the solitary instance of robbery, the Apex Court held as follows:- "... Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus, a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order." 7.2. That apart, the above ratio laid down by the Apex Court was followed by a Division Bench of this Court, in which one of us (P.D.DINAKARAN, J.) was a party, in MALA v. THE SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, GOVT. OF TAMIL NADU, CHENNAI, [(2004) M.L.J. (Crl.) 306]. 8. Admittedly, in the instant case, the adverse cases relate to the offence of theft punishable under Sections 379 IPC and the ground case relates to the offence of robbery punishable under Section 392 IPC and hence, we are of the opinion that the ratio laid down in DARPAN KUMAR SHARMA's case, cited supra, squarely applies to the present case on hand, which is also not disputed by the learned Additional Public Prosecutor. 9. Applying the ratio laid down by the Apex Court in Darpan Kumar Sharma's case, cited supra, we are inclined to set aside the order of detention, Accordingly, the order of detention is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith, unless he is required in any other case. (P.D.D.J.)(R.R.J.) 30.10.2007 Internet : Yes/No kpl To 1. The Secretary to Government Home, Prohibition & Excise Department Fort St.George, Chennai 600 009. 2. The Commissioner of Police Greater Chennai, Egmore, Chennai. 3. The Superintendent, Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, High Court, Madras. kpl P.D.DINAKARAN,J. AND R.REGUPATHI,J. H.C.P.No.1028 of 2007

Bond for All India Candidates : Dr.S.Rajesh vs The State Of Tamil Nadu on 12 December, 2008

Dr.S.Rajesh vs The State Of Tamil Nadu on 12 December, 2008 Dated : 12-12-2008 (From http://www.indiankanoon.org/doc/1028571/) Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.Nos.12923, 12924, 12925, 12926, 12927, 12928, 12716, 12717, 12718, 12719, 12720, 12721, 12722, 12723, 12724, 12725, 13078, 13449, 13450, 13451, 13452, 13554, 13555, 13556, 13831, 13832, 13833, 14194, 14195, 14353, 14354, 14832, 15761, 16207, 16208, 17386, 17387, 18501, 18502, 19869, 22471, 22513, 22514 of 2008 and Connected Miscellaneous Petitions W.P.No.12923 of 2008 Dr.S.Rajesh ... Petitioner Vs. 1. The State of Tamil Nadu, rep.by its Secretary, Health and Family Welfare Department, Fort St.George, Chennai. 2. The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai - 10. 3. The Director of Public Health and Preventive Medicine, The Directorate of Public Health and Preventive Medicine, Egmore, Chennai - 8. 4. The Dean, Madras Medical College, Chennai - 3. 5. The President, The Medical Council of India, Sector 8, Pocket 14, Dwaraka-1, New Delhi - 110 077. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus, calling for the G.O.Ms.No.215 Health and Family Welfare (B2) Department, dated 12.6.2007, and quash the same and incidentally annul the clause No.68(d) of the Post-Graduate Degree/Diploma/M.D.S./Five Year M.Ch.(Neuro Surgery) courses in the Tamil Nadu Governmental Medical/Dental Non-Governmental Self Financing and Government Aided Colleges Prospectus 2005-2006, and the communication issued by the second respondent to the 4th respondent bearing Ref.No.20149/E3/1/2008 Directorate of Medical Education, Chennai-10, dated 2.4.2008 as void and thereon accordingly forbear the respondents from in any manner enforcing the bond as against the Post Graduate/Diploma/ Degree candidates for the period 2005 to 2008, which was obtained from the petitioner by the 4th respondent. For Petitioners : M/s.A.Palaniappan, V.Jayaprakash & K.Venkateswaran For Respondents : Mr.S.Ramaswamy, Additional Advocate General, and Mr.G.Sankaran, Special Government Pleader, assisted by Ms.Dakshayani Reddy & Ms.N.Kavitha, Government Advocates COMMON ORDER The common prayer in these writ petitions is to quash the G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007 and to annul Clause 68(d) of the P.G. Degree/Diploma for MDS for five year M.Ch (Neuro Surgery) course in the Tamil Nadu Government Medical/Dental non-governmental self-financing and Government aided college prospectus 2005 as well as the proceedings of the second respondent dated 2.4.2008 and forbear the respondent from in any manner enforcing the bond as against the P.G. Diploma/Degree candidates for the period 2005-2008. 2. The issue involved in all these writ petitions being one and the same, all the writ petitions are dealt with by this common order. 3. The petitioners herein are Post Graduate Degree/Diploma holders in medicine in allied branches. The petitioners are admitted in their respective PG Degree/Diploma course 2005-2006 and the Diploma holders completed their two years Diploma course and the Degree holders also completed their three years course as of now. All the petitioners are admitted in the PG Degree/Diploma courses in Non-Service Quota (50%)/All India Quota seats provided for admission to PG Degree/Diploma courses. 4. The case of the petitioners who were admitted under the All India Quota is that they have not applied for admission to PG Degree/Diploma course before the respondents as per the prospectus issued by the respondents for admission 2005-2006 and they appeared for All India Entrance Test in respect of All India seats and based on the marks secured by them in the Entrance Examination and as per their choice of the course/Colleges, they were selected and admitted in the medical colleges in Tamil Nadu. Thus, the contention of the said candidates is that the prospectus issued by the respondents, particularly Clause 68(d) and the Government order issued in G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007 as well as the circular issued by the second respondent dated 2.4.2008 are not applicable to the candidates admitted on the basis of selection made under the All India quota. 5. The case of the other petitioners, who are admitted under the Non-Service Quota is that they were forced to execute a bond while joining in their respective PG Degree/Diploma course to serve in the Government Institution for a period of three years, if the government give them posting, failing which the PG Diploma Holders shall pay a sum of Rs.2 lakhs and the PG Degree Holders shall pay a sum of Rs.3 lakhs for not serving in the Government, for the above period. 6. The petitioners are also challenging the order of the Government issued in G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007 stating that their Post Graduate Degree/Diploma certificates will be returned to the Doctors only on satisfactory completion of Government services for two years and the Clause in the Government Order granting relaxation of Rule 10(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Services, so as to enable the PG Degree/Diploma Holders to serve for a minimum period of three years and they can be made permanent, if they appear and pass in the TNPSC selection. The circular of the second respondent dated 2.4.2008 is also challenged calling upon the PG Degree/Diploma Holders to attend counselling for appointment for the period of three years. 7. The contentions raised in these writ petitions are that the bond executed by the petitioners will not bind them as they were forced to execute the same at the time of joining, without any option. The PG Degree/Diploma Holders are not assured of posting on completion of their course in consonance with their qualification and therefore they are compelled to work in primary Health Centres, where there is no provision to treat the patients as per their specialisation. The stipend given to the petitioners by the Government is like allowances paid to apprentices while they get training and therefore the payment of stipend by the Government during their course of PG Degree/Diploma studies cannot be a reason to compel them to serve in the Government Hospitals for three years. The petitioners are prevented from pursuing their super speciality course before serving as per the bond condition. By creating temporary post for three years, by relaxation of Rule 10(a)(i) of the Tamil Nadu General State and Subordinate Service Rules, is arbitrary and violative of Article 16 of the Constitution of India. The respondents have no jurisdiction to retain the original certificates on completion of their course, which prevents the petitioners to register their PG Degree/Diploma in the State Medical Council, disabling them to practice. 8. The respondents have filed counter affidavit by justifying Clause 68(d) in the prospectus as well as the G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007 and the circular issued, by contending that the petitioners have accepted the terms and conditions of the prospectus and having executed the bond and joined in the course and completed their course, they are bound to serve in the Government Institutions for a minimum period of three years. The petitioners having paid a very meagre amount of Rs.20,000/- per year towards fees when compared to several lakhs of rupees charged in private medical colleges, lot of revenue is spent by the Government to impart medical education to the petitioners. Further the Government provides stipend to Non-Service candidates admitted in PG Degree/Diploma course every month during the period of post graduation/Diploma course out of the revenue of the State. Hence for levying subsidised rate of fee and payment of stipend from the Government revenue and the said benefit having been availed the petitioners, they are obliged to serve the poor rural people at least for a stipulated period in terms of the bond executed. The said decision taken by the Government is a policy decision taking note of the public interest involved, particularly the non-availability of Doctors in rural areas to serve the public. The Government has taken the following decisions: (1) The Government have taken a policy decision to start up Government Medical Colleges in every Districts in Tamil Nadu to provide territory care and sophisticated treatment for the welfare of the poor patients. (2) The Doctors are given job opportunities in the Government service, with the above clause. (3) Consequent of starting of new medical colleges in every district considerable strength of Doctors are needed to satisfy the MCI norms and for the treatment of poor patients. It is also stated in the counter affidavit that having executed a bond by accepting the condition contained in Clause 68(d), the petitioners are estopped from contending that the said bond conditions cannot be enforced. The relaxation of Rule 10(a)(i) is ordered only to enable the respondents to give appointment order to PG Degree/Diploma Holders to serve temporarily for three years and they can participate in the TNPSC selection and get permanent appointment. Insofar as the retaining of the certificates it is stated that if the original certificates are issued, the implementation of the bond condition could not be possible and if any candidate is not willing to join the service, they can remit the bond amount and get the original certificates. Insofar as the contention that the candidates are posted in Primary Health Centres, counselling is arranged and based on the vacancy position, candidates are posted in their speciality/sub-speciality and their services are utilised. The demand of original certificates to appear for Competitive Entrance Examinations for pursuing Super-speciality course is breach of bond. The amount claimed through execution of the bond is very reasonable and there is no arbitrariness or irrationality in the clause. 9. The learned counsel for the petitioners submitted that the respondents are not entitled to invoke the bond condition against All India Quota students since they have not applied before the respondents for admission based on the prospectus. The Government Order was issued after the petitioners joined in their respective course of PG Degree/Diploma. The respondents having extracted the services of the PG students to treat the patients in the Government hospitals attached to the Medical Colleges, the stipend paid and the subsidised fee paid is already compensated and there is no necessity to impose further condition to serve in the Government Hospitals for three years. By enforcing the bond and not issuing the certificates, the petitioners are prevented from joining in super speciality course for three years which is highly arbitrary. The PG Degree/Diploma Holders cannot be posted in the Primary Health Centres, as there is no adequate infrastructural facilities available to treat the patients as per their speciality. By relaxation of Rule 10(a)(i) of the General Rules of the States and Subordinate Service, the respondents are creating compulsory temporary service, which is unconstitutional. There is no job security to the petitioners after completion of three years of temporary service and they will be sent out on completion of the period, which would cause great prejudice in the petitioners' entire career. The conditions in the prospectus can be challenged at any time since it affects the fundamental rights of the petitioners as there is no waiver of fundamental right. In support of the above contentions, the learned counsel cited various judgments. 10. The learned Additional Advocate General on the other hand submitted that the prospectus being the rule of selection and such of those candidates applied and got admitted in the PG Degree/Diploma courses by executing bond to serve for three years in the Government Hospitals are to pay Rs.2 lakhs insofar as the Diploma Holders and Rs.3 lakhs by PG Degree Holders, the petitioners are not entitled to challenge the same after completion of the course and the attitude of the petitioners amounts to seeking the change of rule in the middle of the game and the same is impermissible. The learned Additional Advocate General also submitted that based on the speciality in the PG Degree/Diploma, candidates are given posting either in the Medical Colleges/District Headquarters Hospitals or in Primary Health Centres, where advanced way of treatment is also now introduced and as far as possible the candidates are posted in their respective specialised field depending upon the vacancy position through counselling. The petitioners having executed their bonds to serve for three years, they are not entitled to appear for admission to the super speciality course and only after serving three years, they can join in the super speciality course. The impugned clause in the prospectus as well as the Government order is issued taking note of public interest to serve the rural public and the petitioners are also bound to comply with the conditions contained in the bonds, failing which they are bound to remit the bond amount to the Government and there is no illegality or irrationality in the impugned orders. 11. I have considered the rival submissions of the learned counsel appearing for the petitioners as well as respondents. 12. From the above pleadings the following issues arise for consideration in these writ petitions: 1) Whether the respondents are justified in getting bonds from the candidates selected under All India Quota ? 2) Whether the candidates selected under the Non-Service Quota in the State selection are entitled to challenge the prospectus, after joining in the course and after completion of the course ? 3) Whether the G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007, ordering retention of original certificates of the PG Degree /Diploma Holders on their completion of respective course, is valid ? 4) Whether the respondents can deny the rights of the PG Degree/Diploma Holders to apply for the super speciality courses, merely because they have not completed the bond period ? 13. Issue No.1: The petitioners, who are admitted on All India Quota, never applied before the respondents for admission to PG Degree/Diploma course. They have applied pursuant to the prospectus issued for admission to the said category and therefore the respondents cannot enforce the prospectus conditions, particularly clause 68(d) and direct the said candidates to execute the bonds at the time of joining in the course and such execution of the bonds will not in any way bind the All India Quota candidates. The learned Additional Advocate General also admitted the said issue and fairly submitted that the conditions of the bond and the Government Order cannot be applied to the candidates selected under the All India Quota. Hence it is held that the respondents are not entitled to enforce the bond or the Government order or the circular of the second respondent against the PG Degree/Diploma Holders, who are admitted under the All India Quota. 14. Issue No.2: Clause 68(d) of the Prospectus reads as follows: "Clause 68(d). Non-Service candidates shall execute a bond for a sum of Rs.2,00,000 (Rupees Two lakhs only) on admission to Postgraduate Diploma Courses and Rs.3,00,000/- (Rupees Three lakhs only) for Postgraduate Degree courses/MDS/ M.Ch., (Neuro Surgery) 5 years Course of the 2005-2006 session undertaking that they shall serve the Government of Tamil Nadu for a period of not less than 3 years, if required. During the above period, they will be paid a salary on par with the fresh recruits of the Government of Tamil Nadu Medical Services and the Government of Tamil Nadu will requisition their services, if required, within a period of 2 years from the date of completion of their Postgraduate Degree/Diploma/ MDS/M.Ch., (Neuro Surgery) 5 years Course. Two permanent Government servants shall be sureties. The prescribed form of bond will be available in the colleges at the time of admission. The bond will become infructuous if he/she serves the State Government of Tamil Nadu if required for a minimum period of 3 years." The prospectus issued in the year 2005-2006 is the rule of selection for admission of all the petitioners to PG Degree/Diploma Course admitted in Non-Service Quota of the State Government. The said rules having been accepted by the petitioners and submitted their application for appearance in the entrance examination for selection and based on the marks secured by them they were selected and admitted in the Government Colleges in the Degree/Diploma Courses. The said candidates also executed the bonds as per clause 68(d) and therefore the candidates admitted under the State Quota - Non-Service are bound to comply with the conditions contained in the bonds, if they are offered posting and if they are not willing to join, they have to necessarily remit a sum of Rs.2 lakhs/Rs.3 lakhs as the case may be to the Government. Whether the prospectus, which is the rule of selection can be challenged after taking part in the selection and got admitted and after completion of the course, came up for consideration before this Court as well as the Supreme Court in various decisions. 15. The binding nature of the instructions to the candidates is well settled. The notification/instructions to candidates issued by the TNPSC for the year 2003-3004, came up for consideration before a Division Bench of this Court in the decision reported in 2006 WLR 574 (Dr.M.Vennila v. Tamil Nadu Public Service Commission). In paragraph 16, the question as to whether the requirement as stated in the Notification/Information Brochure are to be strictly complied with or not and whether they are mandatory was considered. In paragraphs 19 and 25, the Division Bench held thus, 19. The principle that the prospectus is binding on all persons concerned has been laid by the Supreme Court in Punjab Engineering College, Chandigarh vs. Sanjay Gulati (AIR 1983 Supreme Court 580 = 1983 (96) LW 172 S.N.). Following the same, a Division Bench of this Court has also observed in Rathnaswamy, Dr.A. Vs. Director of Medical Education (1986 WLR 207) that the rules and norms of the prospectus are to be strictly and solemnly adhered to. The same view is also taken by another Division Bench of this Court in Nithiyan P. and S.P.Prasanna vs. State of Tamil Nadu (1994 WLR 624). The same principle is reiterated in the case of Dr.M.Ashiq Nihmathullah vs. The Government of Tamil Nadu and others reported in 2005 WLR 697. It is clear that the prospectus is a piece of information and it is binding on the candidates as well as on the State including the machinery appointed by it for identifying the candidates for selection and admission. 20. ........... 21. ........... 22. ........... 23. ........... 24. ........... 25. In the earlier part of our order we have extracted relevant provision, viz., Instructions, etc. to Candidates as well as the Information Brochure of the Tamil Nadu Public Service Commission, we hold that the terms and conditions of Instructions, etc. to Candidates and Information Brochure have the force of law and have to be strictly complied with. We are also of the view that no modification/relaxation can be made by the Court in exercise of powers under Article 226 of the Constitution of India and application filed in violation of the Instructions, etc. to Candidates and the terms of the Information Brochure is liable to be rejected. We are also of the view that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed unless such power is specifically provided to a named authority by the use of clear language. As said at the beginning of our order, since similar violations are happening in the cases relating to admission of students to various courses, we have dealt with the issue exhaustively. We make it clear that the above principles are applicable not only to applications calling for employment, but also to the cases relating to the admission of students to various courses. We are constrained to make this observation to prevent avoidable prejudice to other applicants at large. (Emphasis Supplied) 16. In the impugned order, the respondent only reiterates the clause contained in the instructions to candidates, which the petitioners also undertook to abide by while filling their application forms. They have participated in the examination, attended counselling and also subjected themselves for selection after accepting all the terms and conditions, joined their course of study and completed their course of study. 17. Whether a person accepting the conditions contained in the norms for selection can challenge the said conditions after participating in selection, came up for consideration before the Supreme Court in the decision reported in AIR 1998 SC 795 (Union of India and another v. N.Chandrasekharan and others), wherein in paragraph 13 it is held thus, "13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. ......." 18. The principle of estoppel is considered by the Honourable Supreme Court in various decisions. (i) In the decision reported in AIR 1978 SC 28 (I.L.Honnegouda v. State of Karnataka and others) the Honourable Supreme Court held thus, "In view of our judgment in Appeals Nos.883 and 898 to 905 of 1975 : (Reported in AIR 1977 SC 876) which has just been delivered and the fact that the appellant acquiesced to the 1970 Rules by applying for the post of the Village Accountant, appearing before the Recruitment Committee for interview in 1972 and 1974 and taking a chance of being selected, the present appeal which questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be allowed. It is accordingly dismissed but without any order as to costs." (ii) In 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla) in paragraph 24, the Honourable Supreme Court held thus, "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." (iii) In AIR 1995 SC 1088 = (1995) 3 SCC 486 (Madan Lal v. State of Jammu & Kashmir), (SCC p.9) it is held thus, "9. ........ The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." (iv) The above said decisions of the Supreme Court were followed by the Full Bench of this Court in the decision reported in AIR 2000 MADRAS 174 (R.Murali v. R.Kamalakkannan)(FB) and in paragraph 55, question No.2 was answered thus, "Question No.2: We hold that writ petitioners are not entitled to challenge the selection after having participated in the written examination on the principle of estoppel." 19. The above referred judgments are followed in a recent decision of a Division Bench of this Court in (2007) 5 MLJ 648 (Indian Airlines Ltd. v.K.Narayanan), wherein the contention of the management therein that person participated in selection in terms of the notification are estopped from challenging the mode of selection or the conditions contained in the instructions/rules was upheld. 20. I have also considered similar issue in W.P.(MD)Nos.9694 and 9695 of 2007 and dismissed the writ petitions by order dated 22.11.2007, holding that the rules of selection are binding on the candidates, who participate in the selection without demur. The writ appeals preferred against the said order in W.A.(MD)Nos.90 and 91 of 2008 were also dismissed by Division Bench by judgment dated 5.2.2008. 21. The petitioners, who were admitted under the State Quota having availed the subsidised rate of fee, are bound to comply with other conditions under which they got admission. The Honourable Supreme Court in the decision reported in 2008 (5) Supreme 249 (Commissioner of Customs, Calcutta v. Indian Rayon & Industries Ltd.) in paragraph 13 held as follows: "13. We do not find any substance in this submission advanced on behalf of the assessee. The only notification which was available to the assessee at the time of import which granted the assessee the right to import duty free goods was Notification No.158/95-Cus. Having availed of the benefit of notification, the assessee has necessarily to comply with the conditions of the notification. It goes without saying that the assessee cannot approbate and reprobate. ..." In the decision reported in (2008) 4 SCC 171 : 2008 (2) Supreme 328 (Dhananjay Malik & Others v. State of Uttaranchal & Others) in paragraphs 7 to 11 (in SCC), the Honourable Supreme Court held thus, "7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules. 8. In Madan Lal v. State of J&K this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. 9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done. 10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P., SCR at p.516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. 11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge." 22. The contention of the petitioners that they are not given posting as per their specialisation in Rural Health Centres, can be addressed by the respondents by accommodating the persons, either giving posting in the Medical Colleges/District Headquarters Hospitals/Taluk Headquarters Hospitals, where the advanced mode of treatment is available. Even otherwise, all the PG Degree/Diploma Holders have already completed MBBS Degree and therefore they can also serve for some time in the rural area in the absence of vacancies available, according to their specialisation. 23. Thus it is beyond doubt that the prospectus is the rule of selection, which is binding on the parties. Thus, the students admitted under the Non-Service Quota other than All India Quota are bound to comply with the conditions contained in the prospectus and the bond executed, that they shall serve for 3 years, failing which they have to remit a sum of Rs.2/Rs.3 lakhs respectively to the respondents. The challenge made by the petitioners, who were selected under the State Quota are rejected. 24. Issue No.3: Insofar as the Government order in G.O.Ms.No.215 Health and Family Welfare Department dated 12.7.2007, ordering retention of PG Degree/Diploma Certificates till the completion of two years of service, the contention of the learned counsel for the petitioner is well founded. The bond condition nowhere stipulates retention of Diploma/Degree certificates or any other certificates. Further, the petitioners have joined in their respective PG Degree/Diploma course prior to the issuance of the impugned Government order. Hence on any account, the petitioners' certificates cannot be retained by the respondents for any reason much less for enforcing the bond condition. Even in respect of the persons joined in PG Degree/Diploma courses subsequent to the issuance of the Government order, the respondents cannot retain the said certificates as the certificates belong to the petitioners and the same are required for registration in the Medical Council, to pursue their higher studies and for joining any private institutions. What is required under the bond executed by the petitioners is that they can either serve for three years or the respondents can demand a sum of Rs.2/Rs.3 lakhs for the breach of bond conditions. If for any reason petitioners are not willing to join, the respondents can only demand the said amount and therefore the condition to retain the certificates till the completion of two years of service is arbitrary and irrational. 25. In G.O.Ms.No.215 Health and Family Welfare Department, dated 12.6.2007, though a suggestion is made by the Director of Public Health and Preventive Medicine for not issuing the P.G.Diploma/Degree Certificates till satisfactory completion of the Government Service for two years, the same was not accepted by the Government. For proper appreciation, the relevant portion of the Government Order is extracted hereunder: "..... The Director of Public Health and Preventive Medicine has proposed to utilise the services of the above non-service Post Graduates and Diploma holders by appointing them temporarily in the above vacancies. Therefore he has submitted that following proposals for consideration of the Government:- i. The candidates, possessing diploma qualification such as DA, DCH, DGO may be accommodated for appointment in Comprehensive Emergency Obstetric and Newborn Care (CEmONC) Centres and Taluk Headquarters Hospitals. ii. The doctors having diploma qualification of other specialities may be accommodated in Taluk Hospitals having 1-3 doctors. iii. The Doctors with specialities like DPM, DMRT, DCP and non clinical specialities may be accommodated in teaching institutions. iv. The Post Graduate diploma/degree certificate may be issued to the doctors only on satisfactory completion of Government services for two years. 2. The Government, after examination, permit the Director of Public Health and Preventive Medicine to appoint the non-service Post Graduates and Diploma Holders in the existing vacancies under the control of the Director of Medical and Rural Health Services and the Director of Medical Education (i.e) in the sanctioned posts in the time scale of pay of Rs.8000-275-13500 with other allowances on temporary basis and allow them to work for a minimum period of 3 years in relaxation of orders issued in G.O.(Ms)No.790, Labour and Employment Department, dated 5.7.1971 and in relaxation of rule 10(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Services. 3. In exercise of the power conferred under rule 48 of the General Rules for the Tamil Nadu State and Subordinate Services contained in Part-II of Volume-I of the Tamil Nadu Service Manual 1987, the Governor of Tamil Nadu hereby relaxes the rule 10(a)(i) of the General Rules, so as to appoint the non-service Post Graduates and Diploma Holders temporarily in the Tamil Nadu Medical Service in the time scale of pay of Rs.8000-275-13500. 4. The Director of Public Health and Preventive Medicine is requested to inform the non-service Post Graduates and Diploma Holders appointed in the above vacancies to appear for the Tamil Nadu Public Service Commission examination as and when conducted and get selected for their permanent absorption in Government Service." The Government though not accepted the said suggestion to retain the certificates, the petitioners are not given the certificates till date, which is an unauthorised action on the part of the Deans of the Government Medical Colleges. 26. This Court in W.P.No.12885 to 12887 of 2008, etc., batch, by order dated 20.11.2008 considered similar issue with regard to retention of certificates/documents from the PG students. In the said order this Court held that such condition is not contemplated under the terms and conditions of the bond and therefore the respondents cannot retain the certificates and direction was issued to return the certificates individually by the respective Dean of the Medical Colleges, within a period of two weeks and if the conditions of bonds executed is not complied with, it is open to the respondents to enforce the conditions of the bonds in the manner known to law. Thus, it is clear that the Government Order imposing the condition not to return the original certificates of the petitioners till the completion of two years of service in the Government Institution as per the bond, is illegal and the same is declared as invalid. 27. Issue No.4: Insofar as the denial of permission to apply for super speciality course or higher studies by the petitioners before completion of the bond period, the petitioners are justified in contending that their right to pursue higher studies cannot be denied by the respondents merely because they have executed bonds. Right to pursue higher studies is to be treated as a human right and the same cannot be denied merely because the petitioners have executed a bond to serve for three years after completing their PG Degree/Diploma. 28. Thus, the respondents cannot deny the petitioners' right to apply for higher studies/super speciality courses under the guise of enforcing the bond conditions. The petitioners are entitled to appear for Entrance Examinations for super speciality course, which are conducted by the Government/any University/Deemed Universities and if they are selected, the respondents are bound to relieve the petitioners even if they are in temporary service as per the bond, after getting an Undertaking from the petitioners that they should serve the remaining period of bond, if not, it is well open to the respondents to collect the bond amount as mentioned in the bond with proportionate interest. On any account no PG Degree/Diploma Holder can be prevented by the respondents to pursue their higher studies and improve their knowledge of specialisation. Thus the said issue is answered against the respondents on the above terms. 29. Insofar as the contention of the petitioners that by granting relaxation of Rule 10(a)(i), respondents are violating the constitutional provision of Article 16, cannot be sustained as the PG Degree/Diploma students admitted under the Non-Service Quota becomes a Clause by itself and irrespective of any discrimination from among them, all the candidates are directed to serve in the Government Colleges/Hospitals for three years with the scale of pay and there is no discrimination by implementing the G.O.Ms.No.215, dated 12.6.2007. Thus the contention raised by the petitioners on this aspect is rejected. 30. In fine, all the writ petitions are disposed of on the following terms: (1) The PG Degree/Diploma Holders, who applied for their Degree/Diploma course through All India Entrance Examination for selection to All India Quota seats and admitted to Tamil Nadu Government Medical Colleges are not bound by the terms and conditions issued by the respondents through their prospectus. Even if any candidate executed bond, it will have no effect since they have not applied for admission under the impugned prospectus. (2) The candidates admitted in the State Quota under the Non-Service category are bound by the terms of the bond executed by them pursuant to the prospectus Clause 68(d) and on completion of their course, they are bound to serve in Government Colleges/Hospitals according to the availability of posts for three years, failing which it is open to the respondents to recover the sum of Rs.2/Rs.3 lakhs as the case may be, as per the bond conditions. (3) No PG Degree/Diploma Holder shall be denied of their certificates in original on their completion of their course as the respondents have no jurisdiction to retain their certificates and the respondents are directed to return all the certificates of the petitioners within two weeks from the date of the receipt of copy of this order. (4) No PG Degree/Diploma Holder, who completed their course or joined in Government Service temporarily as per the bond, shall be denied of opportunity of applying for super speciality course and if they are selected, they should be permitted to undergo the course subject to the condition that remaining period of service shall be served in the Government Institutions by the concerned person after the completion of their respective super speciality course. If not, it is open to the respondents to recover the bond amount with proportionate interest. (5) There will be no order as to costs. (6) Connected miscellaneous petitions are closed.