Dr. Arun P.R vs State Of Kerala
2021 Latest Caselaw 31 Ker

         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

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

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

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

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

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

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

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

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

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

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