State Of Punjab & Anr. Etc vs Viney Kumar Khullar & Ors. Etc

Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 9221-9223 OF 2010 [Arising out of SLP [C] Nos.29693-29695 of 2008]

State of Punjab & Anr. ... Appellants

Vs.

Dr. Viney Kumar Khullar & Ors. ... Respondents

JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted.

2. The Government of Punjab issued a prospectus notification dated

17.3.2008 (for short the `Prospectus') regarding admission to post graduate

degree/diploma in Medical/ Dental Courses for the year 2008. Clause 14

relates 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 2

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 Edcuation, 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.

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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 speciality 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.

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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 4

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 counselling 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 5

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 6

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 course

1. Dr. V.K. Khullar 2008-11 31.08.2012 1 year 2 months

2. Dr. Kamal Kishore 2008-11 30.6.2019 8 years

3. Dr. G.S. Dhaliwal 2008-11 31.8.2020 9 years 2 months

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.

7 (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.

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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 3

year MD course, any remand would result in further delay, thereby adversely

affecting their interests and also deny the benefit of their specialised service

to the society. Therefore, we propose to dispose of the matters without

remand.

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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 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 30.7.2007

applicable 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 dated

13.5.1996 as amended by circular dated 30.7.2007. It should be noted that 1

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 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 13.5.1996

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. 1

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 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.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.

1 (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)

New Delhi; ...........................J. October 22, 2010. (H L Gokhale)