Detention of Mentally Ill People in Hospitals - Guidelines for Doctors and Magistrates

Nathalie Vandenbyvanghe vs The State Of Tamil Nadu on 19 September, 2008 Dated :19..09..2008 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice V. Periya Karuppiah Habeas Corpus Petition No.1041 of 2008 Nathalie Vandenbyvanghe .. Petitioner versus 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. .. Respondents - - - - - PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing the 3rd respondent to set Mr. Roger Vandenbyvange, a French National, aged about 61 years, at liberty forthwith. - - - - - For Petitioner : Mr. T.R. Rajagopalan, Senior Counsel for Mrs. Pushpa Sathyanarayana. For Respondents : Mr. P. Kumaresan, Addl. Public Prosecutor. - - - - - O R D E R Prabha Sridevan, J. A foreign national came to our country as a tourist, he lost his passport, he could not speak English. He has no mental illness, yet, he was rounded up along with more than 100 persons, and was issued reception orders under the Mental Health Act, 1987. Disturbed that he did not return to his homeland, his daughter filed this habeas corpus petition. 2. The facts are these : The father of the petitioner herein, one Roger Vandenbyvanghe, aged about 61 years, was visiting India to seek the blessings of Matha Amritandamayi. He had a valid passport and visa. His visa was valid upto 8.6.2008. He lost his passport and other travel documents along with his personal belongings, including his clothes. He knew only French language and no other language. He was also unable to communicate with anybody. He was wandering on the roads in Kanyakumari District. He had no money and he had to live seeking alms and that is how he made his survival. When he did not return to his home country beyond the date of expiry of his visa, his daughter was alarmed. When she enquired with the French Embassy, she was informed that her father had been admitted into the Mental Health Institute, Chennai. It came as a rude shock to the petitioner since her father was not a mentally ill person. Therefore, she came to Chennai to take her father back. She made a request to the hospital authorities to discharge her father, but they refused to do so. Her complaint was that her father, was illegally kept in the custody of the hospital authorities. Therefore, she filed this habeas corpus petition. 3. On 21.7.2008, this Court passed an order in this petition and the relevant portions of the said order are extracted below, since we feel it is necessary : "This habeas corpus petition portrays a sad state of affair in handling a foreign national by name Roger Vandenbyvanghe, aged 61 years, who could not have dreamt when he came to India and landed during January, 2008 that his life is going to be miserable at the hands of the police. ... On 9.7.2008, the Inspector of Police, Kottar Police Station surrounded 50 male persons and the Inspector of Police, Nesamony Nagar Police Station surrounded 45 male persons as well as 20 female persons totalling 115 persons and resorted to invoke the provisions of Section 23 of the Mental Health Act, 1987 and a case in Cr.No.800 of 2008 was registered. They made all of them appear before a team of doctors consisting of Dr.Y.Arul Prakash, Assistant Surgeon, Government Medical College & Hospital, Nagercoil and Dr.P.Natarajan, Tutor in Psychiatry, Kanyakumari Government Medical College & Hospital, Nagercoil at Asaripallam on the same day. The French national in question was one among the 115 persons who was produced before the above team of doctors and was certified to be suffering from Bipolar disorder mania and a certificate to this effect was issued by the team of doctors. Likewise, similar certificates were also issued in respect of the remaining 114 persons as well. On the strength of the above certificates, the Inspectors of Police of Kottar & Nesamony Nagar Police Stations made applications before the learned Judicial Magistrate No.II in-charge, Nagercoil, Kanyakumari District to pass reception orders authorising the detention of the French national and other 114 persons as in-patients in the Institute of Mental Health, Kilpauk, Chennai. The said applications were ordered again on the very same day and the reception orders were also served in Form-5. Based on the said reception orders, all 115 persons were brought to Chennai and were admitted in the Institute of Mental Health, Kilpauk, Chennai for further treatment. ... They were brought to Chennai and were admitted in the Institute of Mental Health. The detenu was put on observation for a period of ten days. Ultimately, the Institute of Mental Health found that Mr.Roger Vandenbyvanghe does not exhibit any abnormality or psychopathology during the entire period of ten days observation and the observation report of the Institute of Mental Health, Chennai-10 dated 19.7.2008 reads as under:- "Name Mr.Roger Vawdew Vaughe Age 60 Sex Male IP No.2132/2008 DOA 10.7.2008 Mr.Roger Vawdew Vaughe 60 years old male was admitted in Institute of Mental Health, Chennai-10 along with the group of totally 115 persons through reception order issued by the Judicial Magistrate II, Nagercoil I/c, Kanyakumari District on 10.7.2008. On admission, Mr. Roger Vawdew Vaughe was unclean, untidy, and having an infected ulcer on the outer aspect of the left forearm. Mr. Roger Vandew Vaughe has been under observation for the past 10 days. Detailed Physically examination, mental status examination, blood investigation and psychological testing was carried out. During his stay in the last 10 days Mr. Roger Vawdew Vaughe is behaving well, and he has proper sleep and eats sufficiently. Based on the ward behaviour, physical and mental status examination and investigations, it is opined that Mr. Roger Vawdew Vaughe does not exhibit any abnormality or psychopathology during this period of observation." The manner in which this foreign national had been treated by the police is really disturbing. It is difficult to understand how a prima facie satisfaction could be arrived at by the officers in respect of 115 persons en masse at the same time : "This exposes the psycho-fever of the police to proceed against those who are wandering in the streets to be treated as mentally ill persons disregard of their actual physical and mental condition. We must express our total dissatisfaction over the way by which the entire matter had been handled not only by the police, but also at the level of the doctors and the learned Judicial Magistrate as well." (vide order dated 21.7.2008) The approach of the doctors who were called upon to certify whether these 115 persons deserve to be detained is equally inexplicable : "When 115 persons were surrounded by the police and were produced enmasse to a team of doctors, it is hard to believe whether the doctors have discharged their noble duty by examining all the 115 persons individually and arrived at the conclusion that they are mentally ill persons to be dealt under the provisions of the Mental Health Act. The examination of all the 115 persons and to certify them to be mentally ill persons at a stretch and by issuing a printed form of certificate is either humanly impossible or would be the result of callousness shown against those persons by the doctors." (vide order dated 21.7.2008) The reception orders were passed by the learned Judicial Magistrate en masse too : "On perusal of the records, it is seen that the Magistrate before whom all the 115 persons were produced, at a single stretch, has exercised the power under Section 24 and issued the reception orders. The satisfaction of the Magistrate, in our view, is only mechanical and she has not properly applied her judicial mind to the provisions of the Act." (vide order dated 21.7.2008) In view of the prima facie opinion arrived at with regard to these 115 persons, directions were issued to the Director, Institute of Mental Health, Kilpauk, Chennai to submit a detailed report regarding them. 4. The Additional Public Prosecutor produced the status report filed by the Deputy Superintendent of Police, Nagercoil. According to this, several representations had been received from various social organisations that more than 100 mentally ill persons were wandering in Nagercoil and that their condition was pitiable. Therefore, the District Administration took joint action to produce them before the Judicial Magistrate's Court as per law. It appears that cases were registered based on the representations of the social organisations in Crime No.800 of 2008 under Section 23(3) of the Mental Health Act, 1982 by the Kottar Police Station against 50 male mentally ill persons; in Crime No.405 of 2008 under the same section on the file of the Nesamony Nagar Police Station against 45 mentally ill persons; and in Crime No.18 of 2008 under the same section on the file of the All Women Police Station against 20 female mentally ill persons. The District Administration, therefore, apparently had made arrangements to trim their hair and give them bath and also to provide them new clothes. 125 persons were caught and produced for medical examination based on the order of the Judicial Magistrate. According to the status report, 12 doctors from Kanyakumari Medical College comprising a team evaluated these mentally ill persons and rejected 10 persons as beggars and certified the remaining 115 persons as suffering from mental illness. The status report records that the doctors had to work overtime since they had to examine a large number of persons. It is only after observing the due process of law that they had been transferred to the Institute of Mental Health, Kilpauk, Chennai. According to the status report, the petitioner's father was diagnosed as suffering from Bipolar Disorder Mania. He had escaped from the ward twice and thereafter, he was asserted for mental illness. According to the status report, the said person was inadequately dressed, shabby, talking irrelevantly and was in an abnormal, elevated state of mind with absence of insight. 5. It was repeatedly urged by the learned Additional Public Prosecutor that the reception orders were passed only after due examination of the persons. 6. We are not able to accept this submission. Strictly speaking, when the petitioner's father was restored to her, no further orders were necessary. But, we felt that the treatment of mentally ill persons by the police, doctors and court left much to be desired. That is why the medical report was called for from the Isstitute of Mental health at Chennai.As a sample, we will take the case of the petitioner's father itself. According to the police status report, he was admitted by one Manikandan, Director of a Non Governmental Organisation on 27.5.2008. He absconded, was again admitted by the same person and again he absconded, but subsequently the diagnosis was made that he was suffering from bipolar disorder mania as seen above on 27.6.2008. The medical record of the petitioner's father had been produced and the observation report made on admission by the Civil Assistant Surgeon at the Institute of Mental Health, Chennai would show that the petitioner's father was unclean, untidy and having an infected ulcer on his left forearm. The doctor certified that a detailed physical examination, mental status examination, blood investigation and psychological testing of the said person had been carried out and he was behaving well, "he has proper sleep and eats sufficiently". Based on the ward behaviour, physical and mental status examination and investigations, the doctor at the Institute of Mental Health, Chennai certified that the petitioner's father does not exhibit any abnormality or psychopathology during this period of observation. The psychological report shows that a psycho-diagnostic assessment was made and he talked relevantly and coherently. His attention could be aroused and sustained and there was no evidence of psychosis. Therefore, it is evident that the original assessment diagnosing the petitioner's father with Bipolar Disorder Mania is not supported by the subsequent assessment made. We are not giving any finding on the professional capacity of the doctors at Kanyakumari who diagnosed the petitioner's father as being mentally ill. But, we cannot ignore the manner in which it was done. 125 persons were examined virtually on a single day and therefore, the diagnosis was not the result of a proper psycho-assessment. The reception order passed on such an assessment cannot be a valid one. 7. The Director of the Institute of Mental Health was present in Court on one of the days of hearing and we requested him to furnish information with regard to the number of days taken by the team at the Institute for assessing the mental capacities of the 115 persons who were sent to them and the report filed by him reads as follows : "Submitted by Dr. R. Sathianathan, Director, The Institute of Mental Health, Chennai-10. With reference to the information sought by the Honourable High Court Bench A total number of 115 persons (95 males & 20 females) were admitted at the Institute of Mental Health on 10th July, 2008 though the Reception Order from The Honourable Judicial Magistrate No.II i/c., Nagercoil Kanyakumari District, under Section 23, 24 of Mental Health Act, 1987. At the Institute of Mental Health, a team was constituted comprising of 10 Psychiatrists, 2 Psychologists, 6 Social Workers, 6 Staff Nurses and other Para Medical Staff. The team identified the referred persons based on their identification marks as also examined and screened for physical illnesses such as hypertension, cellulites, ulcers, fractures, leprosy etc. On the subsequent day, a detailed laboratory investigation like blood test, X-ray, ECG, HIV Screening, were carried out. Persons with physical illnesses were referred to other hospitals for appropriate treatment. Simultaneously a detailed Mental Status Examination was carried out over a period of 10 days. These persons were given customized care, following which their personal details were solicited. With the information sought, few of the person's relatives were contacted by the social workers. Out of the 115 persons admitted, a French National was discharged as per the instructions of the Honourable High Court. Another 7 persons were (6 males & 1 female) found to have no gross psychopathology during the observation period. These seven persons were further observed for 10 more days for their ward behaviour and subsequently psychological assessments were done. After an intensive observation and investigation these 7 persons were certified that they did not have any abnormality. The efforts are being taken to reintegrate them back to community through the N.G.O's. The rest of the 107 persons are still under observation and treatment. All the 114 person were placed before the Vistors Committee on 30th July, 2008. Dr. R. Sathianathan, 16 August, 2008." Therefore, over a span of ten days, the persons were kept under observation and a mental status examination was done and out of these 115 persons, seven were certified as not having any abnormality and other 107 persons are still under observation. The Director IMH Chennai, told us that a minimum period of 10 days is required to make a mental status examination. 8. Now, we come to the question that disturbs us. It is seen from the records produced before us that the District Collector, Nagercoil had called for a meeting when it was brought to her notice that mentally affected persons are seen in railway stations and bus stands and that proper reception orders are to be obtained. At the meeting, a plan was drawn up : "In the meeting, it was unanimously resolved to send the Mentally affected persons who are seen in Nagercoil Town and Kanyakumari Township to the Institute of Mental Health, Ayanavaram, Chennai in a safety manner. At the first instance, necessary steps would be initiated to identify the Mentally affected persons so as to hand over to the Government Institute of Mental Health, Chennai, for which, the following arrangements to be made by the Officers concerned. It was further planned to commence this exercise by 9th itself and before this end of next week, all the identified patients should be sent to the Institute by getting proper Reception Order from the Judicial Magistrate, as required by the Institute." On 9.7.2008, learned Judicial Magistrate No.II had sent all the 115 persons for assessment of their mental condition as per Section 24 of the Mental Health Act. On 10.7.2008, reception orders had been issued. Though it was submitted by the learned Additional Public Prosecutor that there was no short-circuiting in the process of assessment of the mental condition and that a team of doctors worked, and that all the mentally ill persons were distributed amongst the team and evaluation was done properly, the facts indicate the contrary. We find that the evaluation report had been signed only by two doctors. For that, some explanation is given, which were are not willing to accept. It is clear that 115 persons were treated as mere chattels, rounded up, their hair trimmed, given a bath, sent to doctors, who "duly certified them as mentally ill" and reception orders had been issued. 9. We are also not happy about the manner in which reception orders had been issued by the learned Judicial Magistrate. Of course, we are not here to examine the correctness of the reception orders, that falls beyond the scope of this habeas corpus petition. But, it is apparent the learned Judicial Magistrate not have been really "satisfied" that reception orders ought to be issued in respect of these 115 persons? Mentally ill persons are entitled to the right of life with dignity and they have the Fundamental Rights same as others. Junior level officers of the judiciary are perhaps under the misapprehension that in their Courts, procedural law alone has to be followed. They should change their mindsets. They are equally charged with the obligation of protecting the fundamental rights of the litigants. The work they do day after day cannot run afoul of the Constitutional Obligations. 10. We are concerned with the manner in which the police, the doctors and the learned judicial magistrate have dealt with this group which, on the face of it, is a group without power; but nonetheless a group of persons entitled to protection of human rights. Their autonomy is violated and they have been treated as though they have no rights of their own. "By rights, I mean those fundamental expectations that govern the relationship between individuals and societies. In modern, western societies, rights of individuals are conceptualised as protections against arbitrary so that individuals retain personal choice and decision-making. ... The right of the individual to be free from arbitrary exercise of state power is perhaps the key difference between the democratic nations of the world and those that operate under other systems. Their cross-cultural value is recognized by documents such as the Universal Declaration of Human Rights, which hold that all adults, anywhere in the world, should be free to make basic life choices for themselves. Involuntary commitment, forced treatment, and psychiatric control over decision-making are really not complicated issues, despite the efforts to make them seem so. The fundamental question is this: why do we take one group of people, those labelled "mentally ill", and deny them basic rights? The ethical system (if I can call it that) that drives the involuntary treatment system is paternalism, the idea that one group (the one in power, not oddly) knows what is best for another group (which lacks power). The history of civilisation is in part, the struggle against paternalism and for self-determination. People in power are always saying that they know what is best for those they rule over, even if those poor unfortunate individuals think they know best what they want. The powerful seldom cast their own motives in anything but benevolent terms. Rulers and slave masters like to think (or pretend) that their subjects love them and are grateful to them often having to ignore much evidence to the contrary. The struggle for freedom has always been seen by the powerful as a denial of the obvious truth of the superiority of the rulers. It is clear that we cannot leave our fate in the hands of lawyers, judges, and psychiatrists, who seem quite willing to sacrifice our freedom in the name of benevolent paternalism. Not too many years ago, former patients were not invited to speak at conferences like these. Today, our participation is welcomed, our opinions are solicited, our voices being heard. But the continued existence of involuntary commitment, of prison-like mental institutions, of discrimination and seggregation, shows how far we still have to go to reach our goals: full citizenship, equality, and human dignity".1 11. In his Article2, Kevin Wadzuk of the American University, Washington DC writes : "The United States Constitution is the document upon which the country was founded. It outlines the powers and procedures of the government as well as its duties to protect personal liberties. There is no mention in the Constitution that the rights guaranteed to citizens are limited to those citizens who are of sound mind. ... After consideration of the abuses of the mentally ill, one might question the rationale of society, through its representatives, in these actions. Thomas Szasz (1963) suggests that social disturbance is the issue resolved by this process. If a person asserts ideas, beliefs, or sensations that threaten society, a social disturbance is created. Thus, the deprivation of liberty of a person for mental health reasons is based on the person s thoughts and behavior, not criminal actions. This is an important distinction to make because it leads to the violation of one the basic constitutional rights. Perhaps what is more disturbing is that these persons are not criminals; they are rejects from society. Society has deemed the behaviors of these people as unacceptable and developed a process to remove them from sight and consideration. However, these persons do not disappear; they spend years of there lives in mental institutions, such as St. Elizabeth s Hospital. It is extremely saddening and distinctly outrageous that a minority group could be so blatantly abused." 12. With these voices in the background, we go to the Act. Section 24 of the Mental Health Act reads as follows : "24. Procedure on production of mentally ill person. (1) If a person is produced before a Magistrate under sub-section (3) of section 23, and, if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall- (a) examine the person to assess his capacity to understand, (b) cause him to be examined by a medical officer, and (c) make such inquiries in relation to such person as he may deem necessary. (2) After the completion of the proceedings under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said as an inpatient in a psychiatric hospital or psychiatric nursing home,- (a) if the medical officer certifies such person to be a mentally ill person, and (b) if the Magistrate is satisfied that the said person is a mentally ill person and that in the interest of the health and personal safety of that person or for the protection of others, it is necessary to pass such order: Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or psychiatric nursing home for treatment therein and undertakes in writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein: Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend." The Statement of Objects and Reasons of the Mental Health Act shows the transformation in the attitude of people when compared to the Act that was repealed, namely the Lunacy Act. Even the nomenclature given to the mental condition, to which the Act is addressed, has undergone a sea change. Where originally the word used was "lunacy", now the words used are "mental health". 13. It is evident that on the part of Judicial Magistrate No.II, Nagercoil, he has not applied his mind to examine the persons produced before him under Section 24 of the Mental Health Act, 1987, but had mechanically passed the reception orders. As we have already observed our unhappiness about the manner in which the 115 persons were produced by the police before the Judicial Magistrate No: II, Nagercoil at Kanyakumari District, and the disposal of those persons in granting the reception orders by the learned Judicial Magistrate, it has become necessary for us to give suitable directions to the executive authorities concerned as well as the Judicial Magistrates, who have to deal with the persons who are supposed to be mentally ill, so that they may act in accordance with The Mental Health Act, 1987 and to follow the guidelines issued by this Court as well as the Supreme Court in the various pronouncements. The Supreme Court had bestowed its hope on judicial Magistrates rather than the executive Magistrates to pass reception orders as per provisions of The Mental Health Act, 1987. 14. Mentally ill persons are not criminals, they have not committed any offence. Then, is it necessary that for their protection, action should commence with a First Information Report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a "police complaint". 15. Justice Claire L'Heureux Dube, Supreme Court of Canada (Retired) would say that one must walk in the person's shoes if one has to understand where a person who complains of violation of rights comes from. I quote : "It is important to walk a mile in another person's shoes. As it is possible to grow up in the same family, neighbourhood, school..... And yet, have totally different experiences depending on whether you are a man or a woman. The way to resolve differences therefore is not to suppress those who are different, but to notice them and not try to see our reflection in them." It would be better, in fact imperative, that the police, the doctors and the judicial officers put themselves in the shoes of these marginalized groups of persons who are treated as if they are non-persons before they deal with their rights. 16. Every person wandering on the street is not mentally ill. The police should not "round up" people as if they were stray cattle and deal with them as such. Each individual should be dealt with as a separate case, he/she shall be treated as a human being with all the Constitutional rights. This will be possible if the police/NGO or any other person bring up each case individually as and when it arises. 17. The police need not wait to reach such a huge number in order to produce such persons before the Judicial Magistrate concerned. They shall act promptly as and when they happen to see an abandoned or destitute or mentally affected or suspected ill persons wandering in the public places. When such mentally ill persons are handled by the police, they are to be treated with humanity and dignity and they should not be treated as chattel. The police officers who are actually executing the work of taking cognizance of the mentally ill persons who are roaming in the streets and other public places shall deal with them as per Section 23 of the Mental Health Act, 1987. 18. It is also apparent that the medical officers have not given the due care and caution before certifying a person as mentally ill. This has several serious legal consequences, depriving them of many rights. For example a mentally unsound person cannot contest an election. There are so many disqualifications that attend a person with mental unsoundness. In this case, the petitioner's father has been certified as suffering from bipolar disorder without justification. He is as healthy as the person who first examined him, as the certificate from the Institute of Mental Health, Chennai would show. The doctors cannot mindlessly certify a person as mentally ill. If they need time for examination, they shall insist on that time being given. Importantly, a person does not deserve any less attention than another merely because he/she is found on the street or is poor or is a beggar. The doctors shall also attend immediately to any physical injury that is found on the said person. 19. The trust and hope laid on the Judicial Magistrates in Sheela Barse vs. Union of India, (1993) 4 S.C.C. 204 should have been fulfilled by the Judicial Magistrates by observing and enforcing the provisions of the Mental Health Act, 1987, strictly when the suspected mentally ill persons are produced before them. The Judicial Magistrates concerned should have examined the persons to assess their capacity to understand and cause him to be examined by the Medical Officer and to make such enquiries in relation to such person whenever necessary. It is humanly impossible to "examine" 115 persons, as has been done in this case. Any deviation of Section 24 of the Act is not only harmful to the persons concerned but will also affect the society at large. Under these circumstances, the Judicial Magistrates of this State of Tamil Nadu as well as the State of Puducherry are to be instructed that they should follow the procedures mentioned in Section 24 of the Mental Health Act, 1897 in letter and spirit and to see that justice is done to the persons concerned. The mentally ill persons shall not be made to wait unduly long before reception orders are issued. The Magistrates shall remember the trust and faith reposed on them while they discharge their duty under this Act. What happened in this case must not ever recur. 20. By an order dated 21.07.2008, this Court had set at liberty the detenu Mr. Roger Vandenbyvanghe, already, and therefore, this habeas corpus petition is disposed of with the aforesaid directions. 21. The Registry is directed to circulate this order to all the Judicial Magistrates concerned in Tamil Nadu and Puducherry through the Principal District Judge of the respective Districts for strict observance. The Registry shall also communicate this order to the Director General of Police, Tamil Nadu, and Director General of Police, Puducherry, to circulate the instructions and observations to all the police stations. (P.S.D., J.) (V.P.K., J.) ab 19..09..2008 Index : Yes Website : Yes To 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. ab Prabha Sridevan, J. and V. Periya Karuppiah, J. Pre-delivery Order in H.C.P. No.1041 of 2008 Delivered on

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

Court upholds punishment for drunk cop

http://timesofindia.indiatimes.com/city/chennai/Court-upholds-punishment-for-drunk-cop/articleshow/11089702.cms

CHENNAI: Showing zero-leniency to a drunk constable, who was dismissed from service for having attacked an innocent bystander , the Madras high court has upheld his removal.

On February 2, 2002, constable K Chelliah assaulted Karuppiah , who was waiting to board a bus at the Kallimandapam bus stand in Dindigul district. Besides verbally abusing, the constable kicked and slapped him. Chelliah's past conduct was taken into account by the inquiry officer, who pointed out that he had been punished five times for similar misconduct.

Chelliah preferred an appeal before the jurisdictional deputy inspector-general of police, besides approaching the erstwhile Tamil Nadu state administrative tribunal against the dismissal . After the abolition of the Tribunal, the matter was transferred to the HC.

CML Seniority is the basis for Associate Professor Promotion

http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=29507


IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:- 02.02.2011

Coram:- The Hon'ble Mr. Justice T.RAJA

Writ Petition Nos.26180, 26576, 26585, 27056 and 27217 of 2010 & M.P. Nos.1 of 2010

Dr.R.Senthilnathan ..Petr. in WP.26180/10

1.Dr.A.Rathinavel
2.Dr.S.R.Dhamodharan
3.Dr.C.P.M.Chandrasekar
4.Dr.S.C.Vivekanandan
5.Dr.M.N.Karthi
6.Dr.S.Peer Mohammed
7.Dr.V.Ravichandran
8.Dr.David Pratheep Kumar
9.Dr.D.Maruthu Pandian ..Petrs. in WP.26576/10

1.Dr.R.Velmurugan
2.Dr.B.Mariappan
3.Dr.C.Sankkara Barathi ..Petrs. in WP.26585/10

Dr.H.Sivanarutchelvan ..Petr. in WP.27056/10

1.Dr.Y.Arul Prakash
2.Dr.S.Thilagar
3.Dr.J.Chitra
4.Dr.M.Jesu Thangam
5.Dr.A.J.S.Praveen
6.Dr.P.M.Suresh
7.Dr.R.Prabhakaran
8.Dr.D.Joseph
9.Dr.S.R.Kannan
10.Dr.K.Krishnan Kutty
11.Dr.Y.Kingsly Jebasingh
12.Dr.A.Vasuki Nathan
13.Dr.J.Edward Johnson
14.Dr.S.Frank Davis Daniel
15.Dr.P.John Christopher ..Petrs. In WP.27217/10

vs.

Medical Council of India,
rep. By its Secretary,
Pocket-14, Sector-8,
Dwarka Phase-I,
New Delhi 110 077.

The State of Tamil Nadu,
rep. By its Principal
Secretary to the Government,
Health and Family Welfare Department,
Fort St. George,
Chennai 600 009.

Director of Medical Education,
Periyar EVR Road,
Kilpauk, Chennai-10. ..R1 to R3 in all the Writ Petns.

The State of Tamil Nadu,
rep. By its Principal
Secretary to the Government,
Finance Department,
Fort St. George,
Chennai 600 009. ..R4 in WP.27056/10

Dr.G.V.Manoharan
D.D.Krishnan
Dr.Chandramouoleeswaran
Dr.V.Kamaraj
Dr.Arunan
Dr.K.kamaraj
Dr.Saravanakumaran
Dr.N.Bhaskaran
Dr.Gomathy Karmegam
Dr.Abdul Khadar
Dr.Govardhan
Dr.Manickavel
Dr.Asokan
Dr.Kalaiselvi
Dr.V.Ganesan ..R4 to R18 in WP.26180 of 2010
(R4 to R18 impleaded
vide order passed in
M.P.No.2/2010)

Petitions under Article 226 of the Constitution of India for the relief as stated therein.

For Petitioners in
WP No.27217 of 2010 : Mr.P.Gadson Swaminath

For Petitioners in
other Writ Petitions : Mrs.Nalini Chidambaram
Senior Counsel for Ms.C.Uma

For Respondents-2 & 3 : Mr.G.Sankaran,
in all WPS & R-4 Special Govt. Pleader,
in WP.27056 of 2010 Assisted by Mr.S.Naganathan-GA

For R4 to R18 in
WP No.26180 of 2010 : Mr.C.Kanagaraj
for Mr.K.P.Narayanan

COMMON ORDER

Writ Petition Nos.26180, 26576, 26585 and 27056 of 2010 have been filed by the respective petitioners serving as Government Medical Officers in the State of Tamil Nadu, seeking for issuance of writs of mandamus to forbear the 3rd respondent-Director of Medical Education, Chennai-10, from conducting any counselling for appointment to the post of Associate Professors and Professors in the Tamil Nadu Medical Services in any discipline based on the Draft Seniority List sent along with the proceedings of the said respondent bearing Reference No.78809/E1/1/10, dated 07.10.2010, sent to all the Deans of Medical Colleges/Medical Superintendents and Director of Upgraded Institutes; and consequently direct the 3rd respondent to await the preparation of the final speciality seniority list comprising the panel of Assistant Professors for promotion to the posts of Associate Professors and Professors for the year 2010-11 and to complete the process of re-fitment of Professors in 1511 posts and Assistant Professors in 1420 posts till date in accordance with G.O. Ms. No.354, dated 23.10.2009, before conducting the aforesaid counselling.

2. Another Writ Petition in W.P. No.27217 of 2010 has been preferred with a prayer for issuance of a writ of mandamus, directing respondent Nos.2 and 3 viz., the Principal Secretary to the Government, Health and Family Welfare Department, Chennai-9, and the Director of Medical Education, Chennai-10, to complete forthwith the process of filling of the existing vacancies of Associate Professors and Professors in all specialities in various Government Medical Colleges in the State as initiated by the 3rd respondent as per his proceedings in Ref. No.78809/E1/1/10, dated 07.10.2010, in accordance with the Medical Council of India Regulations as well as G.O. Ms. No.354 (Health and Family Welfare Department B2), dated 23.10.2009.

3. To-day, on the cases being posted for filing counter, Mr.G.Sankaran, learned Special Government Pleader appearing for the respondents/State requested this Court for grant of further time enabling the respondents concerned to file counter-affidavit and, for such request, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioners in the above referred four writ petitions, raised strong objections by stating that if the matters stand adjourned for filing counter, the prayer made would be rendered infructuous since counselling has begun now and it would get completed in the course of this week. So stating, learned Senior Counsel requested this Court to right away take up the matters for disposal. In view of the urgency said to have been involved, this Court, with the consent of all the parties, has taken up the cases and heard the respective counsels appearing on either side at length. The Writ Petitions, which are interrelated and revolving around G.O. Ms. No.354, dated 23.10.2009, are disposed of by this Common Order.

4. For better appreciation, the case of the petitioners is briefly outlined here-under. The petitioners, after completing their MBBS Course, appeared in the Examinations conducted by the Tamil Nadu Public Service Commission (TNPSC) and, on emerging successful, they were appointed to the posts of Assistant Surgeon in the Tamil Nadu Medical Services. At the time of appointment, the successful candidates in the TNPSC were provided with an entry point number known as Civil Medical List (in short 'CML' Number) based on the marks obtained by them in the TNPSC Examination and other reservations including communal reservation. Subsequently, on completing their PG (Post Graduation) courses in various specialities and super-specialities, the petitioners continued to serve as Assistant Surgeons at various Government Hospitals/Health Centres in the State of Tamil Nadu. After sometime, they were relieved by the Director of Medical Service and posted by the 3rd respondent as Assistant Professors in the respective specialities. As per the MCI (Medical Council of India) Regulations, an Assistant Professor is eligible for promotion to the post of Associate Professor on completion of 2 years of service as Assistant Professor in a recognized Medical College. In the present cases, 3 years of teaching experience was prescribed as the minimum experience for promotion to the post of Associate Professor for those who undertook the 2 year Higher/Super Speciality Course. The petitioners, having completed the said 2 year Super Speciality Course, gained sufficient teaching experience in the Higher/Super Speciality Medical Education. As per the norms prescribed by the first respondent/MCI, the petitioners were eligible to be promoted to the post of Associate Professor long back; but, due to lack of adequate promotional opportunities and stagnancy at various levels in the cadre system, the petitioners could not get their due promotions. Therefore, the Tamil Nadu Govt. Doctors Association (TNGDA) made a request to the 2nd respondent for providing the Government Doctors with Dynamic Assured Career Progression (DACP) since promotional opportunities for the Government Doctors in the Medical Education were deficient. After considering the request made by TNGDA, the 2nd respondent issued G.O. Ms. No.194, Health and Family Welfare Department, dated 07.07.2009, constituting a Committee headed by the Special Secretary to the Government, Finance Department, to look into the promotional opportunities of Government Doctors at various levels. The Committee, after studying the situation and possible modalities to create better promotional opportunities to the Government Doctors, submitted its recommendations vide letter dated 03.08.2009. After considering the recommendations contained in the said letter, the first respondent issued G.O. Ms. No.354, Health and Family Welfare (B2) Department, dated 23.10.2009, prescribing the guidelines for promotion and other service conditions to the Government Doctors. Complaining that the said G.O. has not been applied in their case in its letter and spirit, the petitioners in the aforementioned 4 writ petitions have approached this Court for the issuance of mandamus as stated above.
5. Arguing the case for the petitioners in the above said four writ petitions, Mrs.Nalini Chidambaram, learned Senior Counsel made her submissions in four segments.
(a) The respondents are bound to follow the Seniority criteria as provided in G.O. Ms. No.354, dated 23.10.2009, for promotion to the posts of Associate Professor/Professor at the time of counselling for the year 2010. Instead of following the said Government Order, by proceedings dated 07.10.2010, addressed to the Deans of Medical Colleges/Medical Superintendents and Director of Upgraded Institutes, the 3rd respondent issued the Draft Seniority List of the Government Doctors in each speciality for the purpose of promotion to the post of Professors and Associate Professors, asking for the particulars of all the Medical Officers for preparation of the Final Seniority List. It is found in the list that seniority was determined based on the CML (Civil Medical List) Number assigned to the Medical Officers during entry into the service and not the Speciality Specific Seniority. According to the learned Senior Counsel, the guidelines contained in G.O. No.354 were grossly violated while preparing the Draft Seniority List by following the CML Number and unjustly ignoring the Speciality Specific Seniority. This has caused serious prejudice to the petitioners since the Government Doctors who are less experienced in the respective specific speciality will steal a march over the Doctors like the petitioners who are seniors to them.
(b) Once the petitioners acquired Speciality Specific Seniority, such seniority alone should be taken as the criterion for promotion irrespective of the ranking given as per the CML Number.
(c) While preparing the Seniority List of the petitioners, the respondents should have reconciled clauses-(iv) and (vii) of G.O. Ms. No.354 so as to avoid the adverse prospect of overlooking the Speciality Specific Seniority.
(d) While considering a similar case in W.P. No.2775 of 2008, by orders dated 09.06.2010, this Court has categorically held that final seniority or date of promotion is the criteria for future promotion to the next higher cadre and not the CML Seniority. The said decision being applicable in all fours to the facts of the present case, since the 3rd respondent had ignored the said conclusion while preparing the Draft Seniority List of Assistant Professors, this Court may direct the authorities to follow the said order of this Court.
Relying upon a decision of the Apex Court in Challa Jaya Bhaskar vs. Thungathurthi Surendar (Manu/SC/0870/2010) to substantiate her plea that the procedure adopted in the present case is unjust, learned Senior Counsel ultimately pleaded this Court to issue suitable directions for exclusive consideration of Speciality Specific Seniority in the case of the petitioners without reference to the CML Number assigned at the entry point into the service.

6. Per contra, learned Special Government Pleader appearing for the respondents/State, on instructions, would submit that the authorities scrupulously followed G.O. No.354, which provides that the Director of Medical Education Unit's Seniority list will be of two categories viz., (a) General seniority for all those Doctors with MBBS and Diploma Degree and (b) Specialist Seniority ie., Speciality-wise seniority for those with Master Degree and or Super Speciality Degree. Further, both the general seniority and speciality seniority will be based on their seniority in the CML. It is stressed that, after getting the seniority in their speciality, their future promotions would be based on the speciality specific seniority and they would not have further lien on their seniority in Civil Medical List for the purpose of promotion. However, seniority in Civil Medical List would be relevant only for the limited purpose of fixing inter-se seniority relating to those who joined their speciality in the Director of Medical Education Side. Thus, CML Seniority would be relevant only to fix the seniority in the Speciality Specific Seniority.
It is further submitted that when a person joins any speciality under the Directorate of Medical Education, his iner-se seniority in the speciality would depend on the person's seniority in the CML, because, CML would continue to be the criteria to decide the speciality specific seniority till the Associate Professor Level.
The counselling scheduled is for selecting the persons for the post of Associate Professors and, in line with the guidelines issued in the G.O., seniority ranking allotted by the respondents as per CML will have to be taken into account to decide the Speciality Specific Seniority. As there is no specific rule to ignore the seniority obtained by the petitioners in the CML, the contention advanced by the learned Senior Counsel for the petitioners to ignore the ranking assigned as per the CML and to independently consider the Speciality Specific Seniority cannot be appreciated.
Referring to the order passed by this Court in W.P. No.2775 of 2008, it is submitted that the issue decided by this Court in that case was in respect of promotion to the post of Director and Superintendent, which is above the grade of Associate Professor and, in such a case, it was held that seniority in the Feeder category should be taken into account without considering the seniority mentioned in the CML. Thus, the said decision could be made applicable to those cases relating to promotion to the post equivalent to Professor and not for other persons as that of the petitioners, who are aspiring for promotion to the post of Associate Professors.
Referring to the Annexure to the Letter of the 2nd respondent, dated 31.01.2011, learned Special Government Pleader states that the special seniority has already been assigned to the Medical Teachers working in the Directorate of Medical Education Side and other Directorates; thus, the petitioners are not justified in alleging that G.O. Ms. No.354 is not complied with in the present case.
With regard to the submissions made by the learned Senior Counsel for the petitioners citing the decision of the Apex court in Challa Jaya Bhaskar's case (referred supra), it is submitted that the ratio decided therein is completely on a different issue as it was held in that case that those belonging to non-teaching line could not be appointed till they acquire the PG degree. Since that issue is not the subject matter of the present Writ Petitions, the ratio sought to be applied by the learned Senior Counsel for the petitioners will not be relevant to the case on hand.
Ultimately, it is submitted that the respondents have scrupulously adhered to the guidelines of the G.O. in its letter and spirit and such aspect is reflected in the letter of the 2nd respondent and under such circumstances, there being no scope for interference at all, the prayer of the petitioners should be summarily rejected.

7. In support of the stand taken by the learned Special Government Pleader, Mr.Gadson Swaminath, learned counsel appearing for the petitioners in W.P. No.27217 of 2010 and Mr.C.Kanagaraj, learned counsel appearing for R-4 to R-18 in W.P. No.26180 of 2010, would submit that the aforesaid 4 writ petitions are totally misconceived in view of the fact that the norms of the counselling are in total compliance with the guidelines issued by way of G.O. No.354 and under such circumstances, if the counselling is stalled, great prejudice would be caused to all the aspirants in general.

8. I have given my thoughtful consideration to the rival submissions advanced on either side. It is seen that the petitioners, after completing their MBBS Course, were appointed through the TNPSC to the post of Assistant Surgeon in various disciplines of the Tamil Nadu Medical Services and, at the time of their entry into service, CML ranking was assigned to the respective candidates based on the marks secured by them in the Examinations held by the TNPSC. After joining service, they also completed their respective P.G. Courses and subsequently, on pursuing the Higher/Super Speciality Education in various disciplines, they continued for sometime as Assistant Surgeons at various Hospitals in the State of Tamil Nadu and later on, they were posted as Assistant Professors in different Medical Colleges in the State. Since the promotional avenues from the cadre of Assistant Professor were not bright due to lack of promotional opportunities and stagnancy in the cadre system, the TNGDA made a representation to the 2nd respondent, who, after due consideration of the grievance, passed G.O.Ms. No.194, dated 07.07.2009, constituting a committee go into the issue, whereupon, the Committee submitted is recommendation vide letter dated 03.08.2008, based on which, G.O. Ms. No.354, dated 23.10.2009, came to be passed containing necessary guidelines governing promotion.

9. At this juncture, it would be of much relevance to quote below clauses-(i) to (vii) of G.O. Ms. No.354, prescribed in the from of guidelines in respect of 'DIRECTOR OF MEDICAL EDUCATION SIDE":-
(i) The Medical Officers working in the Medical College Hospitals, Institutions and dispensaries under the control of Directorate of Medical Education shall come under the Director of Medical Education Unit.
(ii) The Director of Medical Education will maintain the seniority list of the doctors in this unit and will effect the promotions.
(iii) The Director of Medical Education unit's seniority list will be of two categories (1) General seniority for all those doctors with MBBS and diploma degree. (2) Specialist seniority - Speciality wise seniority for those with master degree and or super speciality degree.
(iv) Both the general seniority and speciality seniority will be based on their seniority in Civil Medical List. After getting the seniority in their speciality, their future promotions would be based on the speciality - specific seniority and they would not have further lien on their seniority in Civil Medical List for the purpose of promotion. However seniority in Civil Medical List would be relevant only for the limited purpose of fixing inter-se seniority relative to those joining their speciality in the Director of Medical Education side. No equivalent promotion can be claimed by any specialist based on inter-se Civil Medical List seniority on account of doctors in some other speciality. Civil Medical List seniority would after that be relevant only to fix the seniority in the speciality specific seniority list, and after that, it is that seniority list which would operate as illustrated in the annexure to this order.
(v) For higher level posts and posts in common pool, the Civil Medical List seniority will be the basis for promotion.
(vi) Entry into Director of Medical Education side against particular vacancy in any speciality should strictly be on the basis of Civil Medical List seniority, provided the person is eligible otherwise.
(vii) Once a person joins any speciality under Director of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the Civil Medical List. The Civil Medical List would continue to decide the speciality specific seniority, till the Associate Professor level. However, any person getting promoted under any speciality would not entitle other persons in other specialities to be promoted similarly, if they are senior in the Civil Medical List to such a person. Similarly, any person in any speciality would not be entitled to get a promotion, based on a junior in the same speciality having got such a promotion in the Director of Medical and Rural Health Services, Director of Medical and Rural Health Services, (ESI) and Director of Public Health and Preventive Medicine side."

A close reading of the above clauses would go to show that the G.O. contemplates two categories of seniority concerning the Director of Medical Education Unit ie., (i) General seniority for those Medical Officers with MBBS and Diploma Degree and (ii) Specialist Seniority-Speciality-wise Seniority for those with master degree and or super speciality degree. In that context, the blunt submission of the learned Senior Counsel to the effect that the petitioners, who have acquired speciality specific seniority should be considered on the basis of such seniority for further promotional post of Associate Professor without taking into consideration the original seniority allotted by way of CML ranking, would fall to ground in the light of the G.O. itself which provides necessary guidelines as extracted above. A conjoint reading of clause Nos.(iv) and (vii) would make the position vividly clear that both the general seniority and speciality seniority would be based on their seniority in the CML and further, after getting the seniority in the respective speciality, the future promotions of the persons falling under the latter category would be based on the speciality specific seniority and they would not have further lien for the purpose of promotion. It is further made clear that, at any rate, seniority in the CML would be relevant only for the limited purpose of fixing inter-se seniority relating to those who joined the speciality in the Directorate of Medical Education Side. Moreover, Clause-vii is very specific that once a person joins any speciality under the Directorate of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the CML, which would continue to be the criteria to decide the speciality specific seniority till the Associate Professor level.

10. From the above, it could be well discerned that the G.O. is very straight on the point that upto the grade of Associate Professor, while considering the aspect of promotion from Assistant Professor to Associate Professor level, the seniority gained by way of CML Ranking by the candidates, who later acquired speciality specific seniority and serving under the Director of Medical Education, would be definitely taken as the criteria. In other words, when clause Nos.(iv) and (vii) of the Government Order in question are reconciled, the only probable conclusion is that for all purposes of promotion to the post of Associate Professor to which the petitioners are vying, inter-se seniority in the Speciality would undoubtedly depend on the seniority in the CML ranking. That being so, this Court does not find any substance in the claim of the petitioners that the Draft Seniority List drawn, based on CML ranking, is contrary to the norms.

11. As regards the order, dated 09.06.2010, passed in W.P. No.2775 of 2008, taking note of the facts involved therein that promotion was sought for to the post of Professor of Paediatrics and that CML can be looked into only upto the cadre of Civil Surgeon, this Court held that, in such a case, promotion is determined not on the basis of CML ranking but on the seniority in the feeder category. Whereas, in the present case, 'Associate Professor' being a cadre below the top cadre i.e., Professor, the CML ranking cannot be simply brushed aside since the G.O. is very clear on the issue.

12. Coming to the case law of the Hon'ble Apex Court in Challa Jaya Bhaskar's case (cited supra), it was a case on a different issue relating to the methodology adopted by the Andhra Pradesh Government in determining the seniority between teaching and non-teaching posts which previously formed one cadre and the ratio laid down therein is, those belonging to the non-teaching line could not be appointed in the teaching line till they had acquired the PG Course. Moreover, in the said case law, no Government Order providing guidelines to govern the issue, was cited or challenged and considering the facts peculiar to the case, the Hon'ble Court made the observations relevant to that particular case. But, in the present case, the narrow issue that the persons, who have acquired speciality specific seniority, should be exclusively considered under such special ranking by completely ignoring the CML ranking assigned at the time of entry into the service, is something different from the one decided in the above said case law of the Supreme Court; thus, the learned Senior Counsel is not right in endeavouring to apply the ratio laid down therein to the present case which is wholly governed by G.O. Ms. No.349.

13. Moreover, clause (vi) of the Annexure to the letter, dated 31.01.2011, of the second respondent categorically states that all the Medical Officers with minimum of 5 years of teaching experience for MD/MS/MDS or 2 years as Assistant Professor (DM/MCh) in the concerned speciality should attend the counselling and based on vacancy in the concerned speciality, they should take up the vacant Associate Professor Post. It is further provided in clause (x) that the crucial date for calculating the teaching experience will be 15.03.2011. Thus, there may not be any grievance for the petitioners if they possess sufficient teaching experience.

14. To sum up, the core issue raised by the learned Senior Counsel to the effect that the petitioners having acquired speciality specific seniority, such aspect alone should be considered for the purpose of promotion to the higher post of Associate Professor irrespective of the CML ranking gained at the entry level, cannot be legally countenanced since such claim would run contra to the scheme of G.O. No.354. Secondly, the order passed in W.P. No.2775 of 2008 pertains to promotion to the highest post viz., Director and Superintendent equivalent to Professor cadre, for which, the CML ranking cannot be applied, whereas, in the present case, it has to be applied in terms of the G.O. Further, the relevant Government Order was not the subject matter of consideration in the said Writ Petition. Similarly, alike G.O. was not questioned before the Apex Court in Challa Jaya Bahaskar's case and the decision rendered therein is clearly distinguishable on facts as well as on Rules. Further, the apprehension of the petitioners that the norms and guidelines provided in G.O. No.354 may be reviewed, no longer exists in the light of the letter of the 2nd respondent, dated 31.01.2011, in particular clause (vi) and (x) thereof, as adverted to above in the course of this order.

15. For the foregoing reasons, Writ Petition Nos.26180, 26576, 26585 and 27056 of 2010 are dismissed as devoid of any merit. In view of dismissal of those Writ Petitions, there is no need to pass any order or issue direction in W.P. 27217 of 2010 and hence, the same is closed in the light of the observations made above. No costs. Connected Miscellaneous Petitions are closed.











JI.

To

1. The Secretary, Medical Council of India,
Pocket-14, Sector-8, Dwarka Phase-I, New Delhi 110 077.

2. The Principal Secretary to the Government,
Health and Family Welfare Department,
Fort St. George, Chennai 600 009.

3. Director of Medical Education,
Periyar EVR Road,
Kilpauk, Chennai-10.

4. The its Principal Secretary to the Government,
Finance Department, Fort St. George,
Chennai 600 009

No PG Degree/Diploma Holder shall be denied of their certificates in original on their completion of their course

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 12-12-2008

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.






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