State of Punjab &
ANR. Vs. Dr. Viney Kumar Khullar & Ors.
JUDGMENT
R.V.RAVEENDRAN, J.
1.
Leave
granted.
2.
The
Government of Punjab issued a prospectus notification dated17.3.2008 (for short
the `Prospectus') regarding admission to post graduate degree/diploma in
Medical/ Dental Courses for the year 2008. Clause 14relates to allocation of
seats and relevant portions thereof are extracted below : "14. In the
Government institutions, 50% of the total seats in every such institution shall
be filled by the Government of India on all India basis through an all India
Competitive Entrance test. The remaining seats shall be filled through the Post
Graduate Entrance Test - (PGET). Out of the remaining seats, 60% seats shall be
filled up from amongst the eligible PCMS/PCMS (Dental)/PDES in service doctors
and 40% shall be open to all eligible medical/dental graduates. (a) For 60%
seats (In service PCMS/PCMS (Dental)/PDES) (i) The test shall be open to the
candidates who have completed a minimum of three years rural service in
PCMS/PCMS (Dental) or a minimum of three years Education Service. x x x (xi)
All PCMS/PCMS (Dental) PDES doctors who are selected for admission to Post
Graduate courses under 60% quota shall have to produce a No Objection
Certificate from the Director, Health and Family Welfare/Director, Research
& Medical Education, Punjab, as the case may be before joining the course
in accordance with instructions issued by the department of Health & Family
Welfare vide memo No.26/12/94- 5HB2/9990 dated 13/5/96 and any other
instruction issued by Punjab Government. (b) For 40% Seats:- (i) Medical/Dental
graduates who are residents of the State of Punjab as per instructions of
Department of Personnel (PP-II Branch) conveyed vide letter
no.1/3/95-3PPII/9619 dated 6/6/1996 and No.1/2/95-3PPII/81 dated 1/1/1999. (ii)
Any candidate in State Government employment shall produce a `No Objection
Certificate' from his/her employer."
3.
The
Government Circular Memo dated 13.5.1996 referred to in clause 14(xi) of the
Prospectus contains the policy regarding issue of `No Objection Certificate'
(`NOC' for short). The relevant portions thereof are extracted below :
"1.1) The
regular PCMS doctors having 3 years rural service/including Adhoc service would
be eligible for admission in diploma/PG courses in State Medical College
against 60% quota. xxxx
3 2) As per the
notification issued by the Medical Education and Research Department, the
candidates who are selected against 60% quota would be considered to be on
deputation during the course, but not be paid any deputation allowance. On
completion of the course, the doctor would be reverted to PCMS cadre........ 3)
Those doctors who do not fulfill the condition as mentioned in para No.1 in
case they are selected for diploma/PC courses would be given admission against
the 40% quota. These doctors would have to resign from the job in order to join
the diploma/PG courses in Medical Colleges of the state. 4) Those doctors who
were selected for post graduation/Super specialty would have to fill the bond
for government service for five years as follows : (1) For PG course : Rs. 2
lacs
(2) For super
speciality course : Rs. 3 lacs If the doctors do not serve the government for
the above mentioned period, he would have to return the above mentioned amount
to the government. xxxx 7) The PCMS doctors who are selected against 40% quota
would not be issued any No Objection Certificate by Director health and family
welfare." (emphasis supplied)
The said circular
dated 13.5.1996 was amended by government Circular dated 30.7.2007. Clause (2)
of the amendment Circular required the in-service doctors who are selected for
doing post graduate courses to give a bond for Rs.10 lacs undertaking to render
government service for 10 years(instead of a bond for Rs.2 lacs for five years
service earlier prescribed) and that if the candidate does not serve the
government for the full period, he will have to give double of the amount of
bond money to the government.
4.
The
first respondent in each of these appeals is an in-service PDES doctor. They
applied for admission to the 2008-2011 post graduate courses. They obtained and
produced provisional No Objection Certificates, along with their applications.
The results of Entrance Examination 2008 were declared on 27.4.2008 and in the
ensuing counseling at the Baba Farid University on 12th and 21st May, 2008,
they were selected and admitted to different Post Graduate Courses in General
Category in the 60% quota for in-service candidates. Dr. V.K. Khullar was
selected for MD (Social and Preventive Medicine), Dr. G.S. Dhaliwal was
selected for MD (Skin &V.D.) and Dr. Kamal Kishore for MD (Anesthesiology).
When they sought No Objection Certificates which had to be produced, the
department found that all of them were due to retire within 5 to 12 years and
could not render the required minimum compulsory service for ten years after
completing the three year Post Graduate Course. Therefore, the No Objection Certificates
were not issued.
5.
The
said three candidates filed writ petitions in the Punjab & Haryana High
Court, praying for issuance of direction to the appellants herein, to issue
NOCs to them to enable them to join the post graduate Medical course and also
sought a direction to the Government Medical College, Amritsar to permit them
to join their respective courses. The High Court by three short identical
orders disposed of the writ petitions with a direction to the Appellants (the
Principal Secretary, Department of Medical Education &Research, Punjab and
Director, Health & Family Welfare, Punjab) to verify the provisional NOCs
issued to the writ petitioners within two weeks with a further direction to
permit the writ petitioners to continue their studies. The said orders are
challenged in these appeals by special leave.
6.
The
appellants contend that as the three writ petitioners were not issued NOCs, the
High Court ought to have considered the reason for non-issue of NOC instead of
permitting the three writ petitioners to join their courses or continue their
studies. It is contended that only those in-service candidates who had sufficient
service and who were in a position to furnish a bond undertaking to serve for a
period of 10 years could be selected for the PG courses; and that the three
writ petitioners were not eligible for getting the NOCs as they did not have
ten years service after completion of the course. The appellants submitted that
the provisional NOCs issued to the three writ petitioners were declared invalid
after verification as they did not comply with the requirement of the circular
dated 13.5.1996 as amended by circular dated 30.7.2007. The appellants
submitted the following service particulars of the three candidates : Sl. Name
of Doctor Duration of PG Date of retirement Service left after No. Course completion
of course1. Dr. V.K. Khullar 2008-11 31.08.2012 1 year 2 months2. Dr.
Kamal Kishore 2008-11 30.6.2019 8 years3. Dr. G.S. Dhaliwal 2008-11 31.8.2020
9 years 2 months
7.
7.
The three writ petitioners (first respondent in each of the appeals)contended
as follows : (a) Dr. Kamal Kishore and Dr. G.S.Dhaliwal were eligible for
admission to the course in terms of the prospectus notification dated 17.3.2008
and that they were also eligible to get NOC in terms of the circular dated
13.5.1996 which required the candidates admitted to the course to serve for
five years after completion of the course.(b) The amendment circular dated
30.7.2007 (which introduced the requirement of 10 years service after
completion of the course) was inapplicable to them as the prospectus notification
dated 17.3.2008 stated that they should only obtain an NOC in terms of the
circular dated 13.5.1996 issued by the Punjab Government, and did not refer to
the amendment memo dated 30.7.2007.(c) Dr. V. K. Khullar was ready to serve for
five years after completion of the course in 2011; and his retirement would not
be a bar to his service as he could work on retirement on contract basis. In
the event of Dr. V. K. Khullar being found to be ineligible for being selected
under the 60% quota, he should be considered as having been admitted under the
40% quota. They also submitted that the circular dated 30.7.2007 had been challenged
other similarly situated candidates (in CWP No.8340/2009 - Dr. Gobind Tandon
and 37 other vs. State of Punjab and others) wherein the Punjab &Haryana
High Court has made an interim order dated 28.5.2009 permitting the writ
petitioners therein to join the course by furnishing bonds for the remainder of
their service instead of furnishing bond for 10 years service. They also
submitted that they have virtually completed more than three-fourth of the MD
Courses and if any action is taken against them at this belated stage by
cancelling the admissions, the society would lose the services of three
specialized doctors on whose education, considerable money has been spent by
the government. They therefore requested that they should be permitted to
complete the decree and serve for the balance period of their service.
8.
The
question for consideration is whether the High Court could have disposed of the
writ petitions by virtual non-speaking orders, without considering the various
issues, only with a direction to verify the provisional NOCs within two weeks
and permitting the writ petitioners to continue with their studies. We find
that the orders of the High Court are unsatisfactory as they do not specify
what should happen if on verification of the provisional NOCs, it was found
that they are not valid. We also find that the direction to appellants to
permit the three writ petitioners to continue their studies was unconditional
and was not restricted to the period required for verification of the
provisional NOCs. Normally, we would have set aside the said orders of the High
Court and remanded the matters with a direction to the High Court to consider
the contentions raised and pass appropriate orders. But having regard to the
fact that the three writ petitioners (first respondent in each of the three
appeals) have already completed 2 years and 3 months out of the 3year MD
course, any remand would result in further delay, thereby adversely affecting
their interests and also deny the benefit of their specialized service to the
society. Therefore, we propose to dispose of the matters without remand.
9.
The
prospectus notification dated 17.3.2008 requires the in-service doctors to
produce NOCs. from the Director, Health & Family Welfare or the Director,
Medical Education & Research as the case may be before joining the course,
in accordance with the instructions contained in the circular dated 13.5.1996
and any other instructions issued by the Punjab Government. What is significant
is that the circular dated 30.7.2007increasing the period of minimum service
under the bond from 5 years to 10years (and bond amount from Rs.2 lakhs to
Rs.10 lakhs) for PG courses is not mentioned or made applicable. The words
"any other instruction issued by the Punjab Government" in the
context of the said clause in the Prospectus cannot be interpreted as referring
to any instruction increasing the burden on the candidates to secure the No
Objection Certificate. A candidate should be made known about the requirements
to be fulfilled by him and cannot be exposed to unknown liabilities or
limitations. If the intention was to make the amendment notification dated
30.7.2007applicable to the 2008 PG admissions, the Prospectus should have referred
to that amendment circular dated 30.7.2007, while mentioning the circular dated
13.5.1996. Nothing prevented the Government from stating that the NOC should be
subject to the conditions mentioned in the circular dated13.5.1996 as amended
by circular dated 30.7.2007. It should be noted that the amendment circular
dated 30.7.2007 was issued after the 2007admissions and was sought to be made
applicable for the first time in respect of the 2008 admissions. Therefore, the
candidates for 2008 admissions would not know about the said amendment circular
dated 30.7.2007 unless it was mentioned in the Prospectus. The candidates would
have bonafide proceeded on the basis that eligibility for the NOC was in terms
of the government circular dated 13.5.1996. The fact that provisional NOCs had
been issued to them also would have led them to believe that prima facie they
were eligible to get the NOCs.
10.
In
these peculiar circumstances we are of the view that the admissions of Dr.
Kamal Kishore and Dr. Gurjeet Dhaliwal should not be interfered and they should
be permitted to continue the course subject to giving a bond undertaking to
serve for a period of five years after completion of the course, and in default
pay Rs.200,000/-, in terms of the circular dated 13.5.1996without reference to
the amendment dated 30.7.2007. We hasten to add that this would be the position
in respect of the 2008 PG admissions.
11.
The
position is however different in regard to Dr. V. K. Khullar. Hewas ineligible
to obtain the NOC even as per the circular dated 13.5.1996. As he is due to
retire on 31.8.2012, he could not serve even for five years, which is the
requirement under the circular dated 13.5.1996. As the Prospectus clearly
refers to the circular dated 13.5.1996, he is deemed to know that he was
ineligible to get a NOC. Hence he will not be entitled to the relief extended
to the other two candidates. However as he has also completed more than
three-fourth of a valuable post-graduate course, it will not be proper to
remove him from the said course at this belated stage. Therefore, he should be
given a chance to complete the course, but subject to conditions. Dr. V. K.
Khullar shall have the option either to resign from service so that he could be
considered as having been admitted under the40% quota with all consequences
flowing there from, or to continue and complete the course without resigning,
subject to his paying the bond amount of Rs.2,00,000/- for not being able to
serve for five years after completing the course.
12.
In
view of the above these appeals are allowed in part as follows :
i.
Dr.
Kamal Kishore and Dr. G.S. Dhaliwal shall be issued NOCs on furnishing a bond
for Rs. 2 lakhs undertaking to serve for a period of five years after compleing
the MD degree course. Their admission and continuation in the MD course shall
not be disturbed.
ii.
Dr.
V. K. Khullar shall be permitted to complete the MD course, but subject to
either resigning from service and continuing in the course with the terms
applicable to candidates admitted under the 40% quota, or alternatively
continue as in-service candidate and complete the course under the 60% quota
subject to payment of Rs.2,00,000/- as liquidated damages for non-fulfillment
of the essential term of eligibility in terms of the bond that will have to be
executed by him .
iii.
On
the facts and circumstances, there is no need to consider the validity of the
correctness of the circular dated 30.7.2007 in these appeals, as the same is
held to be inapplicable to 2008 admissions. We make it clear that the
non-applicability of the amendment memo dated 30.7.2007 is only with reference
to 2008 admissions. We do no express any opinion about its applicability with
reference to the admissions for subsequent years.
.............................J. (R V Raveendran)
...........................J.
(H L Gokhale)
New
Delhi;
October
22, 2010.
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