Trivedi Maharshi Dineshbhai vs State Of Kerala
2021 Latest Caselaw 1602 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

             THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

           FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                              WA.No.122 OF 2021

  AGAINST THE JUDGMENT DATED 06.11.2020 IN WP(C) 24628/2019(C) OF HIGH
                          COURT OF KERALA

APPELLANTS/PETITIONERS 1 TO 9, 11 TO 14 AND 16 IN THE W.P.(C):
       1      TRIVEDI MAHARSHI DINESHBHAI
              AGED 29 YEARS
              S/O.DINESHBHAI TRIVEDI, 3RD YEAR, D.M.PEDIATRIC ONCOLOGY,
              RCC, THIRUVANANTHAPURAM.

       2        DR. FAHAD BIN ABDUL MAJEED,
                AGED 32 YEARS,
                S/O.T.K.ABDUL MAJEED, 3RD YEAR MCH.SURGICAL ONCOLOGY,
                R.C.C., THIRUVANANTHAPURAM.

       3        DR. UNNIKRISHNAN P.
                AGED 31 YEARS
                S/O.SANKARAN EMBRANTHIRI P.K., 3RD YEAR, D.M.MEDICAL
                ONCOLOGY, R.C.C., THIRUVANANTHAPURAM.

       4        DR. SRINIDHI M
                AGED 32 YEARS
                3RD YEAR, M.CH TRAINEE, R.C.C., THIRUVANANTHAPURAM,
                RESIDING AT #3, BLOCK 5, HEALTH DEPARTMENT LAYOUT,
                DETTAGALI 2ND STAGE, RAMAKRISHNA NAGAR U BLOCK, MYSORE,
                KARNATAKA DISTRICT - 22.

       5        DR. SANDEEP KUMAR BEHERA
                AGED 31 YEARS
                S/O.MANNAS KUMAR BEHERA, 2ND YEAR, MCH SURGICAL
                ONCOLOGY, R.C.C., THIRUVANANTHAPURAM, RESIDING AT A1/PU-
                AMARDA ROAD, DIST - BALASORE, STATE ODISHA - 756 030.

       6        DR. HARISH KUMAR L
                AGED 30 YEARS
                2ND YEAR, M.CH SO TRAINEE, R.C.C., THIRUVANANTHAPURAM,
                RESIDING AT 146A, VELAYUDHA NAGAR, AMBASAMUDRAM,
                TIRUNELVELI DISTRICT, PIN - 627 401.
 W.A. No. 122/2021                     :2:


       7       DR. PARBHAKARAN U
               AGED 30 YEARS
               2ND YEAR, MCH SO TRAINEE, R.C.C., THIRUVANANTHAPURAM,
               RESIDING AT 226, NAANITHAM NAGAR, PERIYAR NAGAR
               (NORTH),VRIDHACHALAM - 606 001, CUDDALORE DISTRICT,
               TAMIL NADU.
       8       DR. RAGHWESH RANJAN
               AGED 29 YEARS
               2ND YEAR, DM PEDIATRIC ONCOLOGY,
               R.C.C.THIRUVANANTHAPURAM, RESIDING AT B26/24-7, DEFNDYAL
               NAGAR, DURGAKUND, VARANASI - 221 010.
       9       DR. MOPURI CHAITANYA KUMAR REDDY
               AGED 31 YEARS
               2ND YEAR MCH PS, R.C.C., THIRUVANANTHAPURAM, RESIDING AT
               3/107A, GURIJALA (VPP), SESHADRIPURAM (E), KADAPA DISTRICT,
               ANDHRA PRADESH - 516 454.
       10      DR. GARIMA NIRMAL
               AGED 30 YEARS
               2ND DM PAEDIATRIC ONCOLOGY, R.C.C., THIRUVANANTHAPURAM,
               RESIDING AT 1258, BLOCK - D, SECTOR -7, FARIDABAD,
               HARAYANA - 121 006.
       11      DR. TANDRA HARISH VARMA
               AGED 30 YEARS
               2ND YEAR DM PAEDIATRIC ONCOLOGY, R.C.C
               THIRUVANANTHAPURAM, RESIDING AT FLAT NO. 328, B BLOCK, BK
               SHAH TOWER, SAPTPAGIRI NAGAR, KURNOOL, A.P - 518 003.

       12      DR. ANJU ANNA ABRAHAM
               AGED 32 YEARS
               D/O. ABRAHAM GEORGE, 2ND YEAR DM TRAINEE, R.C.C
               THIRUVANANTHAPURAM, RESIDING AT ANUGRAHA COTTAGE,
               PUNNAPRA P.O, ALAPPUZHA - 688 004.

       13      DR. ABDULLA K.P
               AGED 32 YEARS
               S/O. AKBAR P.K, 2ND YEAR MCH, R.C.C, THIRUVANANTHAPURAM,
               RESIDING AT MARWA MANZIL, MOUVERY P.O, KOTTAYAM MALABAR,
               KANNUR DISTRICT - 670 643.

       14      DR. VENKATA NAGAR SRINIVAS M,
               AGED 32 YEARS
               S/O. VENKARA RATNAM MALLINENI, 2ND YEAR, MCH SO TRAINEE,
               R.C.C., THIRUVANANTHAPURAM, RESIDING AT 31-12-3/1, DBK
               STREET, MACHAVARAM, VIJAYAWADA - 520 004.

               BY ADVS.
               SRI.ELVIN PETER P.J.
               SRI.K.R.GANESH
 W.A. No. 122/2021                   :3:


RESPONDENTS/RESPONDENTS & PETITIONERS 10, 15 AND 17 IN THE W.P.(C):

       1       STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND
               FAMILY WELFARE, KERALA GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

       2       THE DIRECTOR OF MEDICAL EDUCATION
               THIRUVANANTHAPURAM - 695 001.

       3       THE DIRECTOR,
               REGIONAL CANCER CENTRE (RCC),
               THIRUVANANTHAPURAM - 695 001.

       4       THE MEDICAL COUNCIL OF INDIA
               POCKET 14, SECTOR -8, DWARAKA PHASE -I, NEW DELHI - 110 077.

       5       NATIONAL BOARD OF EXAMINATIONS,
               MEDICAL ENCLAVE, ANSARI NAGAR, MAHATMA GANDHI MARG, NEW
               DELHI - 110 029.

       6       DR. GAYATRI GOPAN,
               AGED 33 YEARS
               2ND YEAR DM MEDICAL ONCOLOGY, R.C.C. THIRUVANANTHAPURAM,
               RESIDING AT DWARAKA, NEXT TO SBI, SASTHAMANGALAM,
               THIRUVANANTHAPURAM - 695 010.

       7       DR. ARUN V
               AGED 32 YEARS
               S/O. K.C. VARUDEVAN, 2ND YEAR DM MEDICAL ONCOLOGY, R.C.C,
               THIRUVANANTHAPURAM, RESIDING AT KUMARASSERIL HOUSE,
               MULAKULAM NORTH P.O, PIRAVOM - 686 664.

       8       DR. STEFFI CHACKO,
               AGED 29 YEARS,
               3RD YEAR MEDICAL ONCOLOGY, R.C.C THIRUVANANTHAPURAM,
               RESIDING AT NJALIATH HOUSE, MOOKKANNOOR P.O, ANGAMALY,
               ERNAKULAM - 683 577.

               R4 BY SHRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA


               R1 & R2 BY SRI. ARAVIND KUMAR BABU, SR. GOVERNMENT PLEADER
               R3 BY SRI.ATHUL SHAJI
               R4 BY SRI. TITUS MANI

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2021, THE
      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 122/2021                     :4:




                Dated this the 15th day of January, 2021.

                               JUDGMENT

S. MANIKUMAR,CJ.

Instant appeal is filed challenging the judgment dated 06.11.2020

in W.P.(C) No.24628 of 2019. The appellants have filed the writ petition

seeking the following reliefs:

1. Issue a writ of certiorari or other appropriate writ or order quashing clause 10.1.2 of Exts.P1 and P2 relating to compulsory service of one year.

2. Issue a writ of certiorari or other appropriate writ or order quashing Clause V (b) of Exhibit P3 and Clause VI (b) of Ext.P4 relating to compulsory Service and penalty for violation of bond.

3. Issue appropriate writ or order declaring that petitioners are not liable to compulsorily serve or work under respondents 1 to 3 for any period based on any conditions in Exhibits Pl to P4.

4. Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents to exclude the petitioners from doing compulsory duty on bond for one year in RCC, Thiruvananthapuram or in other Medical Colleges as stipulated in Exhibits Pl and P2.

5. Issue a writ of mandamus or other appropriate writ, order or direction commanding the 3rd respondent to consider and take appropriate action on Ext.P5 within a time limit to be specified by this Hon'ble Court.

2. The issues raised in the appeal relating to compulsory bonded

service as per the prospectus published by the State Government for the

postgraduate medical course for the academic year 2017-2018, have

already been decided by us in the judgment dated 03.11.2020 in W.A.

No. 1666 of 2020 and connected case. The relevant paragraphs of the

said judgment are extracted hereunder:

30. After a threadbare analysis of the issues and taking into account the contractual clauses and the provisions of the Indian Contract Act, 1872, the findings were rendered therein that the doctrine of public policy is highly subjective, shifting, and even changing, and statutorily examined, the compulsion of the students fulfilling the bond-obligation does not seem to fall foul of any public policy. It was further held that the Central Government, through the prospectus, permitted the College, University, or the State Government, to impose its own conditions for admission, and therefore, the students consciously consented to the conditions, executed the bonds, and never challenged them, until they completed their course;that the students have a weak bargaining power in a contract entered into with the College or the establishment. It was also held that education occupies the pride of place, and the students deserve sympathy. But, the State has acted in its permissible limits and imposed an eligibility criterion; the student agreed and got admitted, whereby the State compelled the student to serve one year in the State, where the student had honed his/her medical skills and acquired a higher qualification. It was also held that after all the State invests and subsidizes medical education and In the scenario of limited resources,

spending somewhere amounts to not spending somewhere else and so those who get benefited must repay debt-of gratitude.

31. Having gone through Exhibit-P1 Government order dated 15.05.2017, in particular, clause (9), the bond executed by the appellants along with other essential facts and materials, we are of the view that the learned single Judge was right in holding that the issues are appropriately guided by the decision of this court in Ayisha Beegam's case (cited supra). However, the 1st appellant in W.A. No.1666 of 2020 has not executed a bond admittedly. Therefore, the contention advanced by the learned Senior Counsel appearing for the appellants was that having not executed a bond, the institution is bound to return the certificates submitted by the 1st appellant.

32. In order to analyse the situation, we have again gone through the prospectus approved by the State Government on 2.3.2017, wherein clause 12-2.5 guides the said issue, which we have extracted above. It clearly specifies that no admission shall be valid without getting the bond executed at the time of joining or within 7 days from the date of admission, at the discretion of the Principal; that any lapse in that regard will be treated as liability of the Principal concerned, and after 7 days, the admission is liable to be cancelled.

33. From the above, it is clear that if we have to consider the said provision and rule upon the same, we will have to say that the continuance of the admission of the 1st appellant after 7 days was not in accordance with the prospects issued, which was the rule of the game so far as the academic year 2017-18 is concerned. Needless to say, since the prospectus clearly specifies that execution of bond is a mandatory requirement, a legal fiction comes into play as soon as an admission is secured by a candidate and it will have to be treated that

the 1st appellant has executed the bond statutorily required by the Government and no exception can be given to the said appellant from others who have executed the bond. Above all having undertaken to carry out a mandatory executive Fiat at the threshold, appellants are not entitled to turn around and attack the provisions as arbitrary and illegal, more so in view of the settled legal position as above.

34. After all, the bonded service is for one year. Whether it is a self financing institution or Government institution, the insistence is forserving humanity, which cannot be said to be bad or illegal in any manner. The liquidated damages and other compensation arise only when an executant of the bond fails to execute the bonded service, and therefore, the predominant intention of executing the bond and retention of the certificates is for ensuring service to the humanity and not for securing any liquidated damages, and in our view, that by itself is a part of the training of a postgraduate to commitment in his professional career."

In view of the dismissal of the aforesaid writ appeals, this writ

appeal is also dismissed and all the findings made thereunder would

squarely apply to this case also.

S. MANIKUMAR, CHIEF JUSTICE.

SHAJI P. CHALY, JUDGE.

Rv