CWP No.8995 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 09.11.2010 (1) CWP No.8995 of 2009 Dr. Om Parkash ... Petitioner Versus State of Punjab and others ... Respondents (2) CWP No.9012 of 2009 Dr. Kamlesh Dhingra ... Petitioner Versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Sanjeev Kaushik and Mr.RS Ahluwalia, Advocates, for the petitioners. Mr.Chetan Mittal, Addl.AG, Punjab, with Ms.Kavita Arora, AAG, Punjab. PERMOD KOHLI, J. (Oral): Since questions of law and facts involved in both these writ petitions are identical, they are being disposed off by this common order. However, facts are being taken from CWP No.8995 of 2009. I have heard learned counsel for the parties at length. The petitioner joined the Department of Health Services as PCMS doctor on regular basis. The government of Punjab, Department of Medical Education and Research issued notification dated 09.03.2009 for admission to the Post Graduate Degree/Diploma Course for the year 2009 CWP No.8995 of 2009 2 onwards in the Health Sciences of Education Institutions in the State of Punjab. The petitioner claiming to be eligible applied for admission to the Post Graduate Course. Admission to Post Graduate Course was from two sources. i.e. from the open market and from in-service PCMS/PCMS (Dental)/PDES doctors. 50% of the total seats are meant to be filled in through an all India Competitive Entrance Test and the remaining seats through the Post Graduate Entrance Test. Out of the remaining seats, 60% seats were to be filled up from amongst the eligible PCMS/ PCMS (Dental)/ PDES in service doctors. The relevant instructions in this regard contained in the Brochure reads as under:- “ 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.” Further condition imposed for in service candidates is to produce the No Objection Certificate from the Director, Health and Family Welfare/Director, Research and Medical Education, Punjab. The relevant stipulation in the Brochure reads as under:- “ xi. All PCMS/PCMS (Dental)/PDES doctors who are selected for admission to Post Graduate courses under 60% quota shall have to produce a CWP No.8995 of 2009 3 “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 instructions issued by Punjab Government.” This condition was incorporated on the basis of the government instructions issued in this regard. In the Brochure reference is made to the Memo dated 13.05.1996. The respondents, however, declined to grant No Objection Certificate to the petitioners in view of the subsequent government instructions dated 30.07.2007 which were issued in the meantime amending the government instructions of 1996. In the amended instructions, following condition was incorporated which reads as under:- “2. In the matter mentioned in the subject partial amendment is made as under in para 4 of the instructions issued by above referred letter:- Those doctors who are selected for doing Diploma/PG/Super Specialty shall have to submit a bond for doing to Govt. service as mentioned below. Sr. No. Name of the course Bond money Period of bond 1. Diploma 2 lakhs 6 years 2. PG Courses 10 lakhs 10 years 3. Super Specialty 12 lakhs 10 years CWP No.8995 of 2009 4 It is this condition which has been challenged in the present writ petition. Vide interlocutory order dated 02.06.2009, respondents were directed to issue No Objection Certificate to the petitioner provisionally to enable him to join the Post Graduate Course. As a consequence of the aforesaid order, the petitioner sought admission in the course in question without complying with the instructions of the respondents. In the meantime, in similar matters, some interim directions were passed. The State of Punjab filed SLPs before the Hon'ble Supreme Court. These SLPs were allowed by the Hon'ble Supreme Court vide judgment dated 22.10.2010. The relevant portions of the judgment for the purpose of the the disposal of the present writ petition are reproduced hereunder:- “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 30.7.2007 increasing the period of minimum service under the bond from 5 years to 10 years (and bond amount from Rs.2 lakhs to Rs.10 lakhs) for PG courses is not mentioned or made applicable. The words “any other instructions issued by the CWP No.8995 of 2009 5 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 30.7.2007 applicable to the 2008 PG admission, 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 dated 13.5.1996 as amended by circular dated 30.7.2007. It should be noted that the amendment circular dated 30.7.2007 was issued after the 2007 admissions 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 be bonafide proceeded on the basis that eligibility for the NOC was in terms of the government circular CWP No.8995 of 2009 6 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 13.5.1996 without 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. He was 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 CWP No.8995 of 2009 7 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 the 40% quota with all consequences flowing therefrom, or to continue and complete the course without resigning, subject to his paying the bond amount of Rs.200,000/- 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 completing 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 CWP No.8995 of 2009 8 course under the 60% quota subject to payment of Rs.200,000/- 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 not express any opinion about its applicability with reference to the admissions for subsequent years.” As is evident from the above observations, the later circular dated 30.07.2007 has not been incorporated in the Brochure/Prospectus, the same cannot be enforced, particularly in respect to the admission made for the year 2008. In the present case, for the Post Graduate Course, 2009, the Brochure/Prospectus contains a reference to instructions dated 13.05.1996 only there is no reference of government amended instructions dated 30.07.2007. Thus, the instructions dated 30.07.2007 will have no application to the case of the present writ petitioner. However, the petitioner is bound by the instructions dated 13.05.1996 and will be required to furnish a bond for five years for serving in the State of Punjab after completion of the Post Graduate Course. CWP No.8995 of 2009 9 In view of the above, Civil Writ Petition No.8995 of 2009 is allowed with the following directions:- (i) The petitioner shall furnish a bond for Rs.2 lakhs giving undertaking to serve for a period of five years in the State of Punjab after completion of the Post Graduate Course in accordance with the instructions dated 13.07.1996 as also in terms of the directions contained in paragraph 12 (i) of the judgment of the Hon'ble Supreme Court, within a period of one month from today. (ii) On furnishing of the bond/undertaking mentioned above, the provisional admission granted to the petitioner shall be regularised. (iii) On failure of the petitioner to furnish the bond the petitioner shall be liable to be terminated from the course. In so far as the petitioner in Civil Writ Petition No.9012 of 2009 is concerned, admittedly she is to retire during the currency of the Post Graduate Course. Thus, the question of furnishing a bond for five years either in terms of instructions dated 13.05.1996 or for ten years under subsequent instructions dated 30.07.2007, does not arise. Her case is covered by the directions contained in paragraph 12 (ii) of the aforesaid judgment dated 22.10.2010 by the Hon'ble Supreme Court. The case of the petitioner be dealt with accordingly. A copy of this order be placed on record of connected file. 09.11.2010 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES CWP No.8995 of 2009 10