Extension to PG Candidates Illegal

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 22/11/2007

CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR

W.P(MD)No.9694 of 2007
and
M.P(MD)No.1 of 2007
W.P(MD)No.9695 of 2007 and
M.P.(MD)No.1 of 2007

Dr.D.Ramachandran ... Petitioner in
W.P.No.9694/2007

Dr.N.Praveen ... Petitioner in
W.P.No.9695/2007
Vs.

The Director of Public Health
& Preventive Medicine,
Chennai - 6. ... Respondent in
both writ petitions


PRAYER


Writ Petitions filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari calling for the records relating to the impugned
order passed by the respondent in his proceedings R.No.47018/E5/A3/06 dated 9-
11-2007 and quash the same as illegal.


!For Petitioners ... Mr.C.Venkateshkumar
for Mr.M.Ajmal Khan

^


:COMMON ORDER


In both the writ petitions, petitioners seek to quash the order dated
9.11.2007 passed by the respondent in his proceedings R.No.47018/E5/A3/06.

2. Petitioner in W.P.No.9694 of 2007 had completed M.B.B.S. Course and
applied for selection to the post of Assistant Surgeon in the Tamil Nadu Medical
Service during 2003-2004, conducted by the Tamil Nadu Public Service Commission.
He was selected for the post under Category-2 of Class-1 of the Tamil Nadu
Medical Service by order dated 15.7.2006. Petitioner also got selected to
undergo the course M.D.(General Medicine) in Thanjavur Medical College in May,
2006, duration of the course being three years. According to the petitioner, he
had applied for relaxation of Rule 21(a) of the Special Rules for Tamil Nadu
Medical Services and the respondent by proceedings dated 29.7.2006 permitted the
petitioner to join in the post of Assistant Surgeon in the Primary Health
Centre, immediately after completion of the course. Petitioner is continuing
his M.D. Course till date and the said P.G. Degree course will be over by March,
2009. Meanwhile, on 9.11.2007, the respondent issued the impugned order,
directing the petitioner to report for duty within seven days, failing which his
name will be removed from the selection list and the waiting list candidate will
be accommodated in his place. The said order is challenged in this writ
petition on the ground that in W.P.No.46644 of 2006, this Court issued direction
to release the reserve list, in which the petitioner was not a party and the
relaxation of Rule 21(a) having been granted with condition to join duty on
completion of the P.G.Degree course, the impugned order passed by the respondent
is unsustainable and therefore the petitioner has got a right to continue the
P.G. course and he can join in service after completion of the course.

3. The petitioner in W.P.No.9695 of 2007, who completed the MBBS
course in the year 2003 also applied for the post of Assistant Surgeon 2003-2004
as per the notification issued by the TNPSC and was selected to the post of
Assistant Surgeon under Category-2, Class-1 and he was posted at the Primary
Health Centre, Melakodumalur, Paramakudi, by order dated 28.6.2006. He was also
selected to undergo P.G.Diploma course in Radio Diagnosis and he is undergoing
the course in Thanjavur Medical College from June, 2006, the duration of the
course being two years. This petitioner also obtained permission to join duty
after completion of the P.G.Diploma course in relaxation of Rule 21(a), which
was granted by order dated 29.7.2006 with condition to join the post
immediately on completion of the course and he will be completing the course in
the year 2008. The grievance of the petitioner is that the said order is now
withdrawn and the impugned order is passed and the same is challenged on the
very same ground as stated supra.

4. Heard the learned counsel for the petitioner.

5. Admittedly the petitioners have applied for the post of Assistant
Surgeon in the Tamil Nadu Medical Service for the year 2003-2004 in terms of the
notification issued by the TNPSC by advertisement No.067. In the said
advertisement inviting applications, certain conditions were imposed and the
relevant conditions (ii), (iii) and (vi) are extracted hereunder,
(ii) Candidates selected for appointment should join duty within 30 days. No
extension of joining time will be granted under any circumstances, even if they
are undergoing higher studies/Post Graduate Course. The name of the candidates
who do not join duty within the stipulated time would be removed from the
approved list without assigning any reasons therefor.
(iii) Those who are undergoing Post-Graduate Course and applying for the post of
Assistant Surgeon, should submit a declaration to the effect that they will join
duty within the time limit of 30 days in the event of their appointment to the
post of Assistant Surgeon.
(iv) .........
(v) .........
(vi) Candidates selected and appointed as Assistant Surgeon after joining duty
shall not be permitted to undergo P.G. Course within a period of 2 years
excluding leave.
(Emphasis supplied)
Admittedly the petitioners have applied for selection by accepting the said
conditions. Even though the petitioners were not selected for P.G. Course at the
time of submitting applications and on the date of selection, they were put on
notice that on their selection, they will not be permitted to undergo P.G.
Course within a period of two years, excluding the leave.

6. Now, the petitioners having applied for selection by accepting the
said conditions, whether they have got any right to challenge the impugned
order, is the question to be decided in the present writ petitions.

7. The learned counsel for the petitioners submitted that the
petitioners were given time by relaxation of rule 21(a) by the respondent and
they can join duty on their completion of P.G.Degree/P.G.Diploma course and the
relaxation having been granted, the impugned order directing the petitioners to
join in the post of Civil Surgeon within seven days cannot be sustained.

8. From the conditions imposed in the instructions to candidates, it is
evident that no extension of joining time will be granted under any
circumstances even if they are undergoing higher studies-P.G.Degree/P.G.Diploma
courses and that the name of the candidate, who do not join duty within the
stipulated time would be removed from the approved list without assigning any
reason and those candidates who were undergoing P.G.degree course shall submit a
declaration to the effect that they will join duty within the time limit of 30
days in the event of appointment to the post of Assistant Surgeon. Hence the
relaxation sought for by the petitioners and the grant of the same will not
confer any benefit on the petitioners, particularly when the candidates were put
on notice that relaxation will not be granted under any circumstances. The said
notification nowhere stipulates that in deserving cases, relaxation can be
applied for and granted. In the absence of any such clause in the notification,
petitioners are not entitled to apply for relaxation and the relaxation granted
is also in contravention of the said notification and therefore the said
relaxation earlier granted will not confer any right on the petitioners to
contend that they be allowed to join after completion of their respective
course.

9. It is well settled in law that unless the power of relaxation is
stated in the notification, no one can claim relaxation as a matter of right.
Further, if relaxation power is stated in the notification many candidates,
similarly placed with that of petitioners might have applied and opted for
selection to the Assistant Surgeon Post and might have applied for relaxation of
the rule seeking joining time. Hence the contention of the petitioners that the
respondents cannot withdraw the relaxation granted earlier, is not sustainable.

10. In W.P.No.46644 & 45484 of 2006 dated 4.9.2007, this Court passed an
order directing the Director of Public Health and Preventive Medicine, Chennai,
to send a proposals with regard to the details of candidates, who have not
joined duty within four weeks, to the TNPSC for issuing appointment orders to
the candidates in the reserved list. The said order has been implemented by the
Director of Public Health and Preventive Medicine, Chennai-6, by sending the
list to all the candidates, who have not joined duty, in spite of selection and
the said vacancies are sought to be filled up from the reserved list.
Petitioners cannot contend that they are not party to the said proceedings and
therefore the said direction cannot be put against them. The direction given in
the said writ petition was at the instance of reserved list candidates.

11. Admittedly the petitioners have not joined in their respective
posts. If the petitioners have joined and availed leave it will be a different
matter as the posts are already filled up and the vacancies can be treated only
as leave vacancies. Admittedly the petitioners have not joined in the posts on
their selection and therefore those posts shall be treated as vacant posts.
Therefore the reserve list candidates are entitled to be considered in the said
vacant posts.

12. The post of Assistant Surgeon in the Government Hospitals cannot be
kept vacant till the petitioners complete their P.G.Degree/Diploma Courses.
Filling up of vacancies of Assistant Surgeons in the Government Hospitals is a
paramount duty of the Government to look after the health of the general public,
especially to the poor and needy. In every Government Hospital, Assistant
Surgeons shall be present at all times to attend to emergency treatments. If
the Doctors posts are not filled up in time, the general public will be very
much affected and their right to health, which forms part of basic human right,
guaranteed under Article 21 of the Constitution will be seriously prejudiced.
(a) The right of an injured citizen to get immediate medical treatment
is emphasised by the Supreme Court in the decision reported in AIR 1989 SC 2039
= (1989) 4 SCC 286 (Parmanand Katara v. Union of India) and in paragraphs 7 to
9, it is held as follows,
"7. There can be no second opinion that preservation of human life is of
paramount importance. That is so on account of the fact that once life is lost,
the status quo ante cannot be restored as resurrection is beyond the capacity of
man. The patient whether he be an innocent person or be a criminal liable to
punishment under the laws of the society, it is the obligation of those who are
in charge of the health of the community to preserve life so that the innocent
may be protected and the guilty may be punished. Social laws do not contemplate
death by negligence to tantamount to legal punishment.
8. Article 21 of the Constitution casts the obligation on the State to
preserve life. The provision as explained by this Court in scores of decisions
has emphasised and reiterated with gradually increasing emphasis that position.
A doctor at the government hospital positioned to meet this State obligation is,
therefore, duty bound to extend medical assistance for preserving life. Every
doctor whether at a government hospital or otherwise has the professional
obligation to extend his services with due expertise for protecting life. No law
or State action can intervene to avoid/delay the discharge of the paramount
obligation cast upon members of the medical profession. The obligation being
total, absolute and paramount, laws of procedure whether in statutes or
otherwise which would interfere with the discharge of this obligation cannot be
sustained and must, therefore, give way. ....
9. We are of the view that every doctor wherever he be within the
territory of India should forthwith be aware of this position and, therefore, we
direct that this decision of ours shall be published in all journals reporting
decisions of this Court and adequate publicity highlighting these aspects should
be given by the national media as also through the Doordarshan and the All India
Radio. The Registry shall forward adequate number of copies of this judgment to
every High Court so that without delay the respective High Courts can forward
them to every Sessions Judge within their respective jurisdictions and the
Sessions Judges in their turn shall give due publicity to the same within their
jurisdictions. The Medical Council of India shall forward copies of this
judgment to every medical college affiliated to it. Copies of the judgment shall
be forwarded to every State Government with a direction that wide publicity
should be given about the relevant aspects so that every practising doctor would
soon become aware of the position."
(b) Right to get timely medical treatment to persons in need was
considered by the Supreme Court in the decision of Paschim Banga Khet Mazdoor
Samity v. State of W.B., reported in, (1996) 4 SCC 37 in para 9 which reads as
follows,
"9. The Constitution envisages the establishment of a welfare State at
the federal level as well as at the State level. In a welfare State the primary
duty of the Government is to secure the welfare of the people. Providing
adequate medical facilities for the people is an essential part of the
obligations undertaken by the Government in a welfare State. The Government
discharges this obligation by running hospitals and health centres which provide
medical care to the person seeking to avail of those facilities. Article 21
imposes an obligation on the State to safeguard the right to life of every
person. Preservation of human life is thus of paramount importance. The
government hospitals run by the State and the medical officers employed therein
are duty-bound to extend medical assistance for preserving human life. Failure
on the part of a government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life
guaranteed under Article 21. ...."
13. It is well settled in law that when individual rights and public
interests are pitted against each other, the Court should always lean towards
the public interest instead of the rights of a private person. Therefore, it is
the duty of the respondent to fill up the vacant post of the Assistant Surgeon
posts in the Government Hospitals on emergent basis by issuing appointment
orders to the candidates in the reserve list, if the selected candidates fail to
join duty.

14. There is no justification on the part of the petitioners to contend
that they should be allowed to continue the P.G. Degree/Diploma courses and
after completion of their respective course, they shall be permitted to join
duty as Assistant Surgeon. Petitioner in W.P.No.9694 of 2006 is completing the
course in March, 2009, and the petitioner in W.P.No.9695 of 2006 is completing
the course in June, 2008. Till such long period the Assistant Surgeon Posts in
the Government Hospitals cannot at all be kept vacant, particularly when reserve
list candidates are available to join duty immediately, on their selection.

15. From the order of this Court made in W.P.No.46644 & 45484 of 2006
dated 4.9.2007, it could be seen that the respondents herein requested the TNPSC
to release the candidates from the reserve list for filling up 469 vacancies
prevailing in three Directorates, which arose due to non-joining of the selected
candidates. Thus, it is evident that not only the petitioners, but several
other selected candidates numbering 469 have not joined in the post of Assistant
Surgeon by one reason or the other. The respondent cannot be a silent spectator
by not filling up such large number of vacancies when number of candidates
placed in the reserve list are willing to join duty immediately, if selected.

16. The binding nature of the instructions to the candidates is well
settled. In fact, the very same 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."

17. 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 interview and also subjected
themselves for selection after accepting all the terms and conditions.
18. 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. ......."
19. 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."

20. The above referred judgments are followed in a recent decision of a
Division Bench of the Principal Bench at Madras 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.

21. In the cases on hand, petitioners are not justified in contending
that the Government, having granted time to complete the course and permitted
them to join duty immediately on completion of the course. As already stated the
said relaxation is contrary to the notification as no authority is vested with
the power as per the said notification. The very same issue is answered in 2006
WLR 574 (cited supra) and in paragraph 25 it is clearly stated that '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'. If such power is
stated in the notification similarly placed persons i.e., persons who were
undergoing P.G.Degree Course and persons, who were awaiting to join P.G.Degree
Course could have also applied and participated in selection and availed similar
relaxation of Rule 21(a). Hence the relaxation granted, contrary to the
conditions contained in the instructions to candidate is violative of Articles
14 and 16 of the Constitution denying equal opportunity to similarly placed
persons.

22. In the light of the above conclusion, I am of the view that there is
no merit in the writ petition and the same is dismissed in limine. Connected
miscellaneous petitions are also dismissed.


vr

To

The Director of Public Health & Preventive Medicine,
Chennai - 6.