IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 04TH DAY OF JANUARY 2021/14TH POUSHA, 1942
WP(C).No.18102 OF 2020(K)
PETITIONER:
DR. ARUN P.R.,
AGED 40 YEARS,
S/O. P.V RAJENDRA PRASAD, THINDAMKERIL,
THANNERMUKKAM, ALAPPUZHA 688 527
NOW WORKING AS SURGEON ESI HOSPITAL,
ERNAKULAM PIN 682 018
BY ADV. SRI.CHITTOOR RAJAMANNAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT (LABOUR AND SKILLS DEPARTMENT)
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA 695 001
2 THE DIRECTOR OF INSURANCE MEDICAL SERVICES,
THYCAUD, THIRUVANANTHAPURAM, KERALA 695 014
3 THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION,
THIRUVANANTHAPURAM, KERALA 695 004.
R3 BY P.C.SASIDHARAN, SC
R1 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-01-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.18102/2020
:2 :
[CR]
N. NAGARESH, J.
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W.P.(C) No.18102 of 2020
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Dated this the 4th day of January, 2021
JUDGMENT
~~~~~~~~~ The petitioner seeks issuance of a writ of Mandamus directing the 2nd respondent to issue a 'No Objection Certificate' on Ext.P4 application filed by the petitioner before the Insurance Medical Services Department. The petitioner further seeks to declare that in the absence of the Post Graduate Super Specialty with the Insurance Medical Services Department, stipulated in clause 13.1.2 of Ext.P1 Prospectus, the petitioner is entitled to apply for and join in posts of Post Graduate Super Specialty, available in the Medical Education Department, Health Service Department or any other Department or Institution of the Government. WP(C) No.18102/2020 :3 :
2. The petitioner states that he is an MBBS Doctor working in the Insurance Medical Services Department. The petitioner took a Post Graduate Specialty Degree M.S. General Surgery in the service quota during 2013-2016. The prospectus for admission to Medical PG Degree Courses 2013 provided that the selected candidates shall submit a declaration to the effect that they will serve Insurance Medical Services Department in the Specialist Post immediately or as and when required by the Government, on successfully completing the course and posting orders against the post given by the Director of Insurance Medical Services.
3. According to the petitioner, as per Clause 13.1.2 of Ext.P1 prospectus for admission to PG Super Specialty Courses Kerala, 2016, in the case of service quota candidates, they shall serve the Government for a period of 10 years or up to superannuation, whichever is earlier, after the completion of the course. They will carry out their compulsory Post PGSS service in the Department to which they have their lien. However, if adequate facilities are not available in that WP(C) No.18102/2020 :4 : service, the Government will have the right to shift them to any other Department/institution on the choice of the Government.
4. The petitioner states that the petitioner executed the requested bond and successfully completed the Super Specialty course and thereafter rejoined the Insurance Medical Services Department where he was offered the post of Assistant Insurance Medical Officer, which was the same post he was holding before taking the Super Specialty Degree. Though the designation of the said post was changed as Surgeon, there was no change in service conditions of the petitioner. The petitioner submitted representations before the respondents to appoint him against the post of Post Graduate Super Specialty. However, the petitioner has not been appointed against a post of Post Graduate Super Specialty.
5. According to the petitioner, in view of Ext.P1 Prospectus, the petitioner is entitled to hold the post of PG Super Specialty. But, the Insurance Medical Services Department does not have such a post or facility. Therefore, the petitioner should be allowed to apply for a post of Post WP(C) No.18102/2020 :5 : Graduate Super Specialty in Medical Education Services Department or Health Services Department or any other Department of the Government. The petitioner would contend that the bond obligations have been violated by the Insurance Medical Services Department. There is a fundamental breach of the condition in Clause 13.1.2 of Ext.P1 Prospectus by the Insurance Medical Services Department by not offering the post of Post Graduate Super Specialty to the petitioner after his taking the Super Specialty Degree.
6. The petitioner would argue that he has been denied the post of Post Graduate Super Specialty as assured in Clause 13.1.2 of Ext.P1 Prospectus. The Insurance Medical Service is not issuing No Objection Certificate to the petitioner to join other posts of Post Graduate Super Specialty and other Government Departments. In the circumstances, the petitioner seeks this Court to issue a writ of Mandamus directing the 2nd respondent to issue a No Objection Certificate on Ext.P4 application filed by the petitioner before the Insurance Medical Services Department. WP(C) No.18102/2020 :6 :
7. The 1st respondent filed a counter affidavit and resisted the writ petition. The 1 st respondent stated that considering the eligibility and seniority, the petitioner was permitted to avail the in-service quota allotted to Insurance Medical Service by the 2nd respondent. The petitioner was given deputation benefits also on executing a bond in terms of the prospectus. The petitioner successfully completed the course and joined the Insurance Medical Services Department on 01.08.2016. Thereafter, the petitioner again secured P.G. admission in Insurance Medical Services quota for Super Specialty courses in M.Ch. Genito-Urinary Surgery and he was relieved from the Department on 06.08.2016. After the said the Super Specialty course, the petitioner was posted as Surgeon which is a Specialist post in the ESI Hospital, Ernakulam.
8. According to the 1st respondent, the petitioner is misinterpreting Clause No.13.1.2 of Ext.P1 Prospectus. If facilities are not available in the parent department, the Government will have the right to shift candidates to any WP(C) No.18102/2020 :7 : department/institution of the choice of the Government, which implies that it is the discretion of the Government to depute candidates as and when required. Clause No.13.1.2 does not in any manner suggest that the candidate has a right to leave the department if the facility is not available in the parent department.
9. The 1st respondent pointed out that the petitioner had filed O.A. No.2231/2018 before the Kerala Administrative Tribunal. The Tribunal noted that the matter has already been decided by this Court in the judgment in O.P.(KAT) No.400/2018 and consequently dismissed the O.A. In Ext.R1(d) judgment in O.P.(KAT) No.400/2018, a Division Bench of this Court considered the issue involved in this writ petition and found against the candidates like the petitioner herein.
10. Heard learned counsel for the petitioner and learned Government Pleader appearing for the respondents.
11. The claim of the petitioner is based on Clause No.13.1.2 of Ext.P1 Prospectus for admission to Post WP(C) No.18102/2020 :8 : Graduate Super Specialty course 2016. Clause No.13.1.2 reads as follows:-
"In the case of Service Quota Candidates, He/She shall serve the Government for a period of 10 years or up to superannuation, whichever is earlier, after the completion of the course. They will carry out their compulsory post PGSS service in the department to which they have their lien. However, if adequate facilities are not available in that service, Government will have the right to shift them to any department/institution on the choice of Government. During that period, they will be considered as on deputation. If any service candidate violates this clause, it will be construed as professional misconduct and the fact reported to the T.C. Medical Council for suitable action including cancellation or registration by the council. His/Her service will be terminated and a penalty of Rs.2 Crore (Rs.Two Crores only) will also be levied in addition to termination of service. Service Quota candidates from Insurance Medical Service will be posted on deputation in any service or wherever needed, till adequate facilities are provided in their parent department. These candidates will also have to participate in Sabarimala and VIP duties as and when solicited."
(Emphasis is supplied) A reading of Clause 13.1.2 would show that the petitioner and other similarly situated candidates are obligated to serve the Government for a period of 10 years or up to superannuation, whichever is earlier, after the completion of the PG Super Specialty Course.
WP(C) No.18102/2020 :9 :
12. However, what is provided under Clause 13.1.2 of Ext.P1 Prospectus is an obligation on the part of the candidates who have undergone Super Specialty courses under specified in-service quota, to serve Government for a period of 10 years. The obligation of the candidates as contained in Clause No.13.1.2 would not create a corresponding duty or liability on the part of the respondents to appoint the petitioner in a post of Post Graduate Super Specialty. This is for the simple reason that obligation cast on in-service candidates who have obtained admission to Post Graduate Super Specialty courses under in-service quota, cannot give rise to a corresponding legal right.
13. Furthermore, it is to be noted that appointments to the post of Post Graduate Super Specialty in various Departments under the Government of Kerala are governed by specific recruitment rules. No appointments can be made to those posts, without following the recruitment rules. Ext.P1 Prospectus does not give a superior legal right to the petitioner to get appointment to a cadre, without regard to WP(C) No.18102/2020 : 10 : Statutory Recruitment Rules.
In the circumstances of the case, I find that the petitioner has no legal right to get appointment as Post Graduate Super Specialty in any other department, based on Ext.P1 Prospectus. The writ petition is therefore without any merit and it is liable to be dismissed. Accordingly, the writ petition is dismissed.
Sd/-
N. NAGARESH, JUDGE aks/21.12.2020 WP(C) No.18102/2020 : 11 : APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROSPECTS FOR ADMISSION TO POST GRADUATE SUPER SPECIALTY COURSES KERALA 2016.
EXHIBIT P2 A TRUE COPY OF THE ANNEXURE II BOND DATED 12-08-2016 OBTAINED BY THE GOVERNMENT FROM THE PETITIONER.
EXHIBIT P3 TRUE COPY OF EARLIER LETTER OF THE DIRECTOR OF INSURANCE MEDICAL SERVICES DECLINING TO ISSUE 'NO OBJECTION CERTIFICATE' TO THE PETITIONER VIDE LETTER NO. E6-2343/2017 D.I.M.S DATED 3-3-2017 STATING THAT THE PETITIONER HAD TAKEN THE SPECIALTY DEGREES UNDER SERVICE QUOTA. EXHIBIT P4 TRUE COPY OF THE APPLICATION OF THE PETITIONER FOR THE ISSUANCE OF NO OBJECTION CERTIFICATE FROM THE INSURANCE MEDICAL SERVICES DEPARTMENT FOR APPLYING FOR THE POST OF ASSISTANT PROFESSOR IN UROLOGY IN MEDICAL EDUCATION SERVICE UNDER THE GOVERNMENT OF KERALA, KPSC CATEGORY 90/2019 EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 19.10.2020 ISSUED BY THE RESPONDENT NO-3 TO THE PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE PROSPECTUS FOR
ADMISSION TO MEDICAL POST-GRADUATE
DEGREE/DIPLOMA COURSES 2013
EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED
22.08.2019 BEFORE THE ADDITIONAL
SECRETARY, DEPARTMENT OF LABOUR AND SKILL, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 07.09.2020 OF THE RESPONDENT NO.2 REJECTING THE EXT.P4 APPLICATION OF THE PETITIONER WP(C) No.18102/2020 : 12 : EXHIBIT P9 TRUE COPY OF THE G.O.(P) NO.7/2016/FINANCE DATED 20/1/2016 (WITHOUT ANNEXURES) EXHIBIT P10 TRUE COPY OF THE PAGE NOS.242 TO 245 OF THE AFOREMENTIONED G.O.(P) NO.7/2016/FINANCE DATED 20/1/2016 EXHIBIT P11 TRUE COPY OF THE PAGE NOS.208 TO 209 OF THE AFOREMENTIONED G.O.(P) NO.7/2016/FINANCE DATED 20/1/2016 EXHIBIT P12 TRUE COPY OF THE PAGE NOS.263 TO 264 OF THE AFOREMENTIONED G.O.(P) NO.7/2016/FINANCE DATED 20/1/2016 EXHIBIT P13 A TRUE COPY OF THE AFORESAID G.O.(MS) NO.200/2018/(102)/FINANCE DATED 11/6/2018 EXHIBIT P14 A TRUE COPY OF THE SALARY SLIP OF THE PETITIONER DATED 5/11/2020 RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 16.06.2016 EXHIBIT R1(B) TRUE COPY OF THE G.O.(RT) NO.1928/2013 LBR DATED 26.11.2013 EXHIBIT R1(C) TRUE COPY OF THE GO(RT) NO.1290/2018 LBR DATED 09.11.2018 EXHIBIT R1(D) TRUE COPY OF THE JUDGMENT DATED 14.12.2018 EXHIBIT R1(E) TRUE COPY OF THE ORDER DATED 04.10.2019 IN OA NO.2231/2018 EXHIBIT R1(F) TRUE COPY OF THE ORDER G.O.(MS) NO.
140/99/LBR DATED 17.11.1999 EXHIBIT R1(G) TRUE COPY OF THE ORDER G.O(MS) NO.96/08/LBR DATED 10.07.2008 EXHIBIT R1(H) A TRUE COPY OF THE ORDER IN R.P.
No.857/2020 DATED 19.11.2020