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 Dr.S. Rajesh ... Petitioner in WP.No.12923/2008 Dr.D.Senthil ... Petitioner in WP.No.12924/2008 Dr. K.R.Divya ... Petitioner in WP.No.12925/2008 Dr.M.Mohammed Ibrahim ... Petitioner in WP.No.12926/2008 Dr.R.Arivazhagan ... Petitioner in WP.No.12927/2008 Dr.Ajeesh N.B. ... Petitioner in WP.No.12928/2008 Dr.L.Sorna Kumar ... Petitioner in WP.No.12716/2008 Dr.K.K.Ravishankar ... Petitioner in WP.No.12717/2008 Dr.Soomen Devidutta ... Petitioner in WP.No.12718/2008 Dr.A.Anirudhan ... Petitioner in WP.No.12719/2008 Dr.S.Thilak ... Petitioner in WP.No.12720/2008 Dr.G.Muraleesharan ... Petitioner in WP.No.12721/2008 Dr.Srilakshmi M Rao ... Petitioner in WP.No.12722/2008 Dr.A.Sasivannan ... Petitioner in WP.No.12723/2008 Dr.M.Saritha ... Petitioner in WP.No.12724/2008 Dr.T.Mohana Priya ... Petitioner in WP.No.12725/2008 Dr.Vibhavari V Shirahatti... Petitioner in WP.No.13078/2008 Dr.Vinodh Selix ... Petitioner in WP.No.13449/2008 Dr.Ankid Agarawal ... Petitioner in WP.No.13450/2008 Dr.Gaurav Kumar ... Petitioner in WP.No.13451/2008 Dr.P.S.S.Ranugha ... Petitioner in WP.No.13452/2008 Dr.R.Rajam ... Petitioner in WP.No.13554/2008 Dr.V.Vidhya ... Petitioner in WP.No.13555/2008 Dr.Vyshakh H V ... Petitioner in WP.No.13556/2008 Dr.Aravind S Kapali ... Petitioner in WP.No.13837/2008 Dr.R.Sandeep ... Petitioner in WP.No.13832/2008 Dr.V.Sekar ... Petitioner in WP.No.13833/2008 Dr.G.Venkadamanickam ... Petitioner in WP.No.14194/2008 Dr.A.P.Krithika ... Petitioner in WP.No.14195/2008 Dr.P.Nirmal ... Petitioner in WP.No.14353/2008 Dr.T.P.Ajish ... Petitioner in WP.No.14354/2008 Dr.Saneej Kanhirat ... Petitioner in WP.No.14832/2008 Dr.L.Subha ... Petitioner in WP.No.15761/2008 Dr.R.R.Vijay Anand ... Petitioner in WP.No.16207/2008 https://hcservices.ecourts.gov.in/hcservices/ Dr.P.D.Balaji ... Petitioner in WP.No.16208/2008 Dr.R.Kumaran ... Petitioner in WP.No.17386/2008 D.Uma Devi ... Petitioner in WP.No.17387/2008 Dr.R.Saileela ... Petitioner in WP.No.18501/2008 V.Priyavarshini ... Petitioner in WP.No.18502/2008 Dr.M.Vijayalakshmi ... Petitioner in WP.No.19869/2008 Dr.S.Sureshkumar ... Petitioner in WP.No.22471/2008 Dr.M.Geetha ... Petitioner in WP.No.22513/2008 Dr.K.Shakthesh ... Petitioner in WP.No.22514/2008 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 in All WP's Prayer in All WP's: 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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, https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. ......." https://hcservices.ecourts.gov.in/hcservices/ 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