Madras High Court
Dr.S.Santhoshkumar vs The Principal Secretary To ... on 12 April, 2022
W.P.No.9245 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.04.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No. 9245 of 2022
WMP.Nos.9007 to 9009 of 2022
Dr.S.Santhoshkumar ...Petitioner
Vs.
1.The Principal Secretary to Government of Tamil Nadu
Health and Family Welfrae Deparment,
Secretariat,
Chennai-600010
2.The Director of Medical Education,
No.162, EVR Periyar Salai,
Kilpauk, Chennai-600010
3.The Dean,
Coimbatore Medical College and Hospital,
Coimbatore,641018
4.The Dean,
Trivandrum Medical College,
Medical College Post,
Thiruvananthapuram,
Kerala State-6950 11 ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records of the first
respondent in GO(Ms)No.185 Health and Family Welfare (MCA 1)
Department, dated 13.04.2020 and quash the same insofar as it directs the
furnishing the Bank Guarantee in the place of execution of bond and
1
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W.P.No.9245 of 2022
consequently direct the 3rd respondent to return all the original certificates
of the petitioner by accepting an extension surety bond.
For Petitioner : Mr.S.Kamadevan
For Respondents : Mr.D.Ravichander [R1 to R3]
Special Government Pleader
ORDER
Mr.D.Ravichander, learned Special Government Pleader accepts
notice for R1 to R3 and is armed with sufficient instructions to proceed with
matter finally. In light of the order, which is passed now and bearing in
mind the urgency, no notice is issued, at this juncture, to R4.
2. I have had occasion to consider the similar request made by this
petitioner in W.P.Nos.7596 of 2022 and batch vide order dated 12.04.2022.
Insofar as it relates to students who have secured admission in other States,
the aforesaid order is applicable to this petitioner as well.
3. For convenience, order dated 12.04.2022, in entirety, is extracted
below:
All petitioners were initially aspiring for seats for super speciality
courses. Pending Writ Petitions, 6 out of 7 have been successful in
securing admission. The petitioner in W.P.No.7588 of 2022 awaits
selection and his case has thus been de-linked and listed for hearing on
19.04.2022.
2. Of the remaining, the case of the petitioners in W.P.Nos.7599 of
2022 and 7600 of 2022, Dr.R.Deepika and Dr.T.Raajaneesh are liable to
be accepted in line with letter dated 10.02.2022 of the Principal Secretary
to Government, Health and Family Welfare Department that relaxes the
condition of bank guarantee in respect of doctors who have secured
admission in a Government Medical College within the State of Tamil
Nadu.
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W.P.No.9245 of 2022
3. The case of the petitioners in W.P.No.7596 of 2022 – Dr.S.Shayanthini,
W.P.No.7683 of 2022 – Dr.J.Sakthi venkatesh, W.P.No.7607 of 2022 –
Dr.S.Mohamed Nidhal, W.P.No.7589 of 2022 – Dr.N.Khamini are
distinguishable in that they have secured admission in Institutions in other
States as well as private colleges.
4. The details of admissions secured are tabulated below:
SL.NO WRIT PETITION PETITIONER’S NAME ALLOTED
INSTITUTIONS
1. 7596 OF 2022 DR.S.SHAYANTHINI Sri Jayadeva Institute
of Cardiovascular
Science & research,
Banglore, Govt. of
Karnataka
2. 7683 OF 2022 Dr.J.SAKTHI VENKATESH Osmania Medical
College, Hyderabad,
Govt. of Telangana
3. 7607 OF 2022 DR.S.MOHAMED NIDHAL DrNB
NeuroAnaesthesia,
Global Hospitals,
Chennai, under
National Board of
Education (NBE),
Govt. of India.
4. 7589 OF 2022 DR.N.KHAMINI DrNB Nephrology,
Apollo Hospitals,
Chennai, under
National Board of
Education (NBE),
Govt.of India.
5. 7599 OF 2022 DR.R.DEEPIKA Stanley Medical
College, Chennai,
Govt. of Tamil Nadu.
6. 7600 OF 2022 DR.T.RAJNEESH Madras Medical
College, Chennai,
Govt. of Tamil Nadu
7. 7588 OF 2022 DR.M.VIGNESH KUMAR Awaiting 2nd round.
5. All petitioners challenge G.O.Ms.No.185, Health and
Family Welfare (MCA1) Department dated 13.04.2020 and clarification
issued by the first respondent, i.e., the Principal Secretary to Government,
Health and Family Welfare Department dated 10.02.2022. The aforesaid
G.O. dealt with a condition imposed by the State upon the request of
students who had sought return of their certificates for continuance of
higher speciality/fellowship course.
6. In paragraph 2, the Secretary to Government states as follows:
2. The Director of Medical Education has stated that
the Non-Service Post Graduate Board Speciality
(Degree/Diploma)/Higher Speciality candidates who have stud-
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W.P.No.9245 of 2022
ied in State of Tamil Nadu and have selected to Higher Special-
ity/Fellowship courses in other States/Private Self
Financing/Deemed University before getting posting order for
starting their bond service and the Candidates who have joined
the service in State of Tamil Nadu (before completing their
bond period) are requesting to return their original certificates
to continue their Higher Speciality/Fellowship courses in other
states/ Private Self Financing/ Deemed University.
7. Based on the experience of the State that non-service post
graduate candidates more often than not, do not comply with the service
conditions imposed on them and breach the bond conditions, the State had
decided to obtain bank guarantees from candidates aspiring for higher
studies. This is the sum and substance of paragraph 3 of the G.O.,
extracted below:
3. In order to prevent the Non Service Post Graduate
Broad Speciality/Degree/Diploma/Higher Speciality candi-
dates from escaping the bond conditions, the Director of
Medical Education has decided to obtain Bank Guarantee
from those candidates before leaving to service and re-
quested the Government to issue necessary order in this re-
gard.
8. The proposals as aforesaid were examined by the State and the
following orders issued:
....
4. The Government have examined the proposal of the Director of Medi-
cal Education and decided to accept the same. Accordingly, the Govern-
ment do hereby issue orders to the Director of Medical Education as de-
tailed below:-
I). to permit the Non service Post Graduate candidates who have
completed their Broad Speciality (MD/MS/Diploma) Course in
State of Tamil Nadu (not completed their bond condition) and
have selected for Higher Speciality courses through entrance ex-
amination (either/neither NEET-SS) in other State/Private self-
financing/Deemed University to pursue the Higher Speciality
course after obtaining the Bank Guarantee equivalent to the
bond amount as prescribed in the respective year prospectus
during the admission to Broad speciality courses from the aca-
demic year 2016-2017.
II). to permit the Non service Post Graduate candidates who
have competed their Higher Speciality (DM/M.Ch) Course in
State of Tamil Nadu (not completed their bond condition) and
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W.P.No.9245 of 2022
have selected for Fellowship Course through entrance examina-
tion (either/neither NEET-SS) in other State/ Private self-financ-
ing/Deemed University to pursue the Fellowship course after
obtaining the Bank Guarantee equivalent to the bond amount as
prescribed in the respective year prospectus during the admis-
sion to Higher speciality courses from the academic years 2016-
9. After issuance of G.O.185 dated 13.04.2020, the State
considered the position of those students who continue to study in the
State of Tamil Nadu even for post graduate/super speciality courses and
since the State continues to retain control, as the students are continuing
their education in Government colleges within the State, the rigour of
G.O.185 was relaxed to this limited extent.
10. This was based upon several representations from post
graduate students who continued in the State who pointed out that their
certificates were being held by the Government Institutions within the
State control and thus some measure/degree of control is retained to
ensure that they do not breach the bond conditions. The logic of their
request found acceptance in letter dated 10.02.2022.
11. The relevant portion of letter dated 10.02.2022 is extracted below:
2. A number of Post Graduate students represented that
when they have to join Super Speciality or from Diploma to Post
Graduate Seats in Government medical institutions within the
State, citing G.O.Ms.No.185, Health and Family Welfare De-
partment, dated 13.04.2020, bank guarantee is being insisted up-
on.
3.The G.O.Ms.No.185, Health and Family Welfare De-
partment, dated 13.04.2020 referred to students joining other
State/Private Self financing and Deemed University without com-
pleting bond criteria whereas these students are joining Govern-
ment Colleges within the State and not other State/Private Self-
financing/Deemed University. Thus the bond criteria and the
bank guarantee is not applicable to them.
4.I am to state that the Director of Medical Education
need not insist upon bank guarantee and sent the certificate of
such candidates (who are going to join in Government Medical
Institutions within the State) to the institution to which the candi-
dates are going to join and to ensure that the students pursuing
Post Graduate and Super Speciality are not forced to obtain a
bank guarantee. Instead, a simple undertaking may be obtained
that on completion of the Super Speciality course/Post Graduate
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W.P.No.9245 of 2022
course, the respective conditions of agreeing to serve in the
State, as the case may be, depending on the availability of the
vacancies within the time frame may be obtained.
12. Pending Writ Petitions, all petitioners were permitted to
participate in counselling to ascertain the success of their candidature as
this would have a bearing on the decisions to be made. This is for the
reason that prima facie I had felt that a distinction ought to be made
between Government Colleges not just in the State of Tamil Nadu but in
any part of the Country, vis-a-vis private institutions within and without
the State.
13. The petitioners are thus participated in the counselling and
the result of the counselling is that Dr.R.Deepika and Dr.T.Raajnesh have
been successful in securing seats in Stanley Medical College, Chennai and
Madras Medical College, Chennai respectively. Being Government
Institutions, there is no necessity for them to pursue their challenge to
G.O. 185 as modified by letter dated 10.02.2022, as they fall within the
exempted category, and benefit from clarification dated 10.02.2022.
14. Hence, W.P.Nos.7599 and 7600 of 2022 are closed recording
the above position. There is no hurdle to their certificates being returned
forthwith upon their complying with the conditions as applicable to them
and I order so.
15. Adverting to the case of the other four petitioners, clearly, the
imposition of, or exemption from any condition, falls within the domain of
the State. This position has been settled by the Hon’ble Supreme Court in
the case of Association of Medical Super Speciality Aspirants and
Residents & Others V. Union of India and others (W.P.(C) No.376 of
2018) decided on 19.08.2019).
16. The challenge in that case related to compulsory bonds to be
executed for admission to post graduate medical courses and super
speciality courses. The petitioner association had sought a mandamus
quashing such compulsory bond conditions as imposed in the States of
Andhra Pradesh, Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala,
Maharashtra, Orissa, Rajasthan, Tamil Nadu, Telengana and West
Bengal.
17. A consequential direction had been sought by the members of
the petitioner association seeking return of their original mark sheets,
certificates and other documents that had been retained by the respective
States post completion of the speciality courses, insisting upon and
invoking the bond conditions.
18. The restrictions imposed by the different States are of various
hues and not all uniform in nature. The basis of the imposition was
however for the same reason, to retain some degree of control over the
candidates/doctors, to ensure that they serve the State for a given, stated
period.
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W.P.No.9245 of 2022
19. All the States invest substantially in setting up and maintaining
the medical colleges, and the uniform thinking was that having benefitted
from the resources of the State, the candidates must be prevailed upon the
give back to the State, some of the expertise gained by them.
20. The Hon’ble Court held that the conditions imposed fell within
the permitted authority that vested in the State, and was reasonable and
not in violation of any constitutional principle. Such policy, to permit the
States to engage in the exercise of imposing reasonable restrictions upon
those candidates who were the beneficiaries of State sponsored
infrastructure, was premised on the minimum need of deprived sections of
society to have access to proper health and tertiary care.
21. The laudable object is thus that health care must not be
restricted only to those who have the resources to visit speciality and
corporate hospitals, but must be available even to those living in the
remote areas of a State. In the upshot, the claim of the Association was
dismissed and all doctors who had executed the bonds were held to be
bound by the conditions contained therein.
22. A suggestion was made by the Hon’ble Bench in conclusion
that, bearing in mind the rigour imposed by the States and the need for
uniformity in the matter relating to compulsory bonds, suitable steps be
taken by the Union of India and the Medical Council of India to formulate
a uniform policy regarding the compulsory service to be rendered by
doctors trained in Government Institutions.
23. Though rendered on 19.08.2019, nothing is placed before me
by learned counsel for the respondents to show that the suggestion of the
Hon’ble Supreme Court has borne any fruit. As a result, the disparity in
bond conditions continues.
24. The common counter of the respondents, sets out at paragraph
5, the estimate of costs incurred by the State in running the medical
colleges, that is in excess of Rs.10 crores per year. This is quantified
approximately at a sum of Rs.27.00 lakhs per student per annum. On the
other hand, the fee structure is extremely subsidized and reasonable and
some of the petitioners were also paid stipend by the Government.
25. It is best to extract the defence of the State in its own words.
“It is further submitted that every Department in the
government Medical Colleges requires the following doctors,
besides other staff and infrastructural facilitites.
Sl. Name of the Post No.of Posts Approximate Total Annual
No. Pay
1. Professor 8 Rs. 18305760
2. Associate Professor 14 Rs. 24136728
3. Assistant Professor 28 Rs. 44462544
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4. Senior Resident 4 Rs. 6254208
Total Rs. 93159240
The salary of Staff and other infrastructural facilities provided
to every Department would cross about Rs.10,00,00,000/- (Rupees
Ten Crores) per year. Thus for each petitioner to undergo the
course, the Government incurs Rs.27,00,000/- (Rupees Twenty
Seven Lakhs) approximately per annum and similar amount for the
2nd and 3rd year also whether they continue their study or not.
Whereas the petitioners are required to pay the tuition fees of
Rs.30,000/- per year and special fee of Rs.500/- per year, in all a
total of Rs.30,500/- only for their one year course. Apart from that,
the petitioners were paid stipend by the Government to the tune of
Rs.11,71,500/- from May-2018 to May-2021.
The candidates trained at such low cost with stipend must
utilize their knowledge gained for the benefit of the poor patients
coming for treatment at Government Medical College Hospitals.
The Government is offering all such speciality courses at a very low
cost when compared to the private institutions with a fond hope that
he/she will serve the poor. The prime objective of the Government is
to provide specialized treatment to the poor people who are unable
to afford the high cost involved in treatments outside Government
Institutions, and to increase the availability of skilled manpower.
Hence, it is natural that the Government desires to ensure that
these doctors who have undergone Post Graduate training at a very
low cost by utilizing the poor people to serve the poor and the needy
of this country at large and this State in particular. The public have
the right to expect the Specialists to utilize the skills they acquired
during their training for the benefit of the sick, the poor and the
needy. To ensure that the services of trained Post Graduate Doctors
are made available to the poor and needy patients, a bond signed by
the candidate with 3 sureties is obtained from the candidates at the
time of their admission. The candidate is a well qualified registered
medical practitioner with adequate knowledge and only after
carefully reading the bond condition and understanding it and after
being fully aware of the terms and conditions of the bond he/she has
signed the bond and he/she has not been forced to sign the bond. It
is sincerely believed that if allowed this will encourage an attitude
of not paying attention to those poor people at whose expense they
have been educated which is not good and acceptable.”
26. The State also points out that some of the petitioners have
engaged in COVID duty on contract basis for some time. The legitimate
claim of the respondents is that in spite of executing a bond, as admittedly
enforcement of the bond is almost non-existent, many of the candidates do
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W.P.No.9245 of 2022
not come back to serve the State. Thus, the purpose of the bond is
defeated resulting in considerable shortage in the number of doctors
employed in Government Institutions in the State.
27. I am now faced with the situation where the State of Tamil
Nadu has made a distinction between those candidates who continue to
study in Government colleges within the State and those who had opted to
leave the State to continue their studies elsewhere. In the latter case, and
if the bond conditions have not been fulfilled thus far by the doctors, such
conditions will spill over and merely be deferred to after the completion of
the super speciality courses.
28. In such an event, it becomes imperative for the State to, as
rightly contended by them, retain some measure/degree of control upon
the students, as in the alternative, there is every possibility that the
doctors would continue to greener pastures without feeling the need to
return to the State to serve.
29. Admittedly, the machinery for enforcement of the bond
conditions is not just poor but non-existent. It is, in such a situation that
the State has created an exemption from G.O.185 dated 13.04.2020 in
permitting continuance of original bond conditions in the cases of those
students who continue their studies in the State of Tamil Nadu.
30. However, the rigour of the Government Order continues in the
cases of those students who have secured admission outside the State or in
private institutions within the State. In such cases, the requirement of a
bank guarantee for a sum of Rs.40,00,000/- (Rupees forty lakhs only) is
insisted upon. Learned single Judges of this Court have considered the
pleas of candidates that the condition of bank guarantee is onerous. Such
consideration was prior to issuance of clarification dated 10.02.2022.
31. Ultimately, those petitioners were directed to furnish
guarantees for amounts less than the original liabilities which, as per
G.O.185 requires the bank guarantee to be equivalent to the bond amount
as prescribed in the prospectus in the respective year. (See orders dated
16.10.2020, 30.11.2020 and 03.12.2020 in W.P.Nos.14906 of 2020, 16849
of 2020 and 16842 of 2020 respectively). I am also told that the aforesaid
orders have been accepted by the State and bank guarantees accepted for
the negotiated amounts stated therein.
32. Having heard learned counsel, I am of the view that the
primary demarcation made under impugned Government Orders read
with clarification dated 10.02.2022 has some basis. I am also supported
in this view by the decision of the first Bench of this Court in Writ Appeal
No.799 of 2019 and a batch of Writ Petitions delivered on 06.10.2020.
The conclusion of the Bench at paragraph 103 (v) specifically takes note
of the judgment of the Apex Court in the Association case reiterating that
that judgment laid down the law in regard to the binding nature of
bond/contract obligations.
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W.P.No.9245 of 2022
33. The candidates in W.P.Nos.7607 and 7589 of 2022 have
secured admission in private institutions and hence are bound by
G.O.Ms.No.185 dated 13.04.2020 and clarification dated 10.02.2022.
Their writ petitions are dismissed, subject to relief as under.
34. The State has revealed its inclination to engage in negotiation
of the appropriate amount of bank guarantee to be executed by the
candidate opting for study in private institutions, both within and without
the State.
35. I thus direct Respondent 2, the Director of Medical Education,
to engage in a deliberation of the amount of bank guarantee to be
furnished by these petitioners, bearing in mind orders passed in
W.P.Nos.14906 of 2020, 16849 of 2020 and 16842 of 2020 as aforesaid
and decide the same within 24 hours from now.
36. The process of admission in the seats secured by these
candidates will be subject to this deliberation. It is made clear that the
candidates in question are bound by all conditions under G.O.185 dated
13.04.2020, including the furnishing of the bank guarantee, except for the
quantification of the bank guarantee to be furnished.
37. As regards those candidates who have secured admission in
Government Institutions in other parts of the Country, I am of the
considered and categoric view that the benefit of waiver of bank
guarantee extended by the State of Tamil Nadu to students studying in
Tamil Nadu, must be extended to those candidates as well. Learned
counsel for the respondents expresses some reservations on this score,
pointing out the absence of control that they hold in such matters.
38. Let us bear in mind that we are one unified Country and the
common aim of all State Governments is to improve the access of
underprivileged in their States to health care. A balance has to achieved
as between the aforesaid object and the interests of the Doctors upon
whom the condition of bank guarantee is imposed.
39. Moreover, the direction of the Hon’ble Court in the case of the
Association (supra) is that a uniform set of conditions must be customised
that would operate across all the States. To my mind, there is a cue to be
taken from this suggestion which is that some reciprocity must be devised
by States to enable quality medical education pan India while at the same
time, availing the benefit of the doctors who have been the beneficiaries of
such training.
40. There is no such mechanism available as of now to provide for
such reciprocity. However, bearing mind the compulsions of the States, on
the one hand, and students, on the other, a harmonious balance must be
struck and the States governments must reciprocally assist each other in
this respect.
41. The NEET prospectus contains a categoric condition to the
effect that students admitted must produce the certificates in hard copy,
and a declaration or certificate to the effect that they possess the required
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W.P.No.9245 of 2022
qualification issued by other Institutions would not suffice. This condition
is evidently to get over the difficulties caused by breach of bond
conditions.
42. This condition has not however, conceived of the certificates
being held securely by the States themselves, albeit other States, by
putting in place an inter-State mechanism that would enable candidates to
avail opportunities in other States while still being bound to return to the
Home State to serve. That is, and to clarify, the Home State must retain
lien over the certificates of the candidates in question.
43. In addition, what is required is a mechanism whereby the
certificates of a Student from Tamil Nadu who has obtained admission to
a Government college in Karnataka, for example, may be securely held,
so as to satisfy the prospectus conditions, the requirements of the
admitting college (in Karnataka) and the Home State (TamilNadu).
44. Had such a mechanism been in place, which I believe will be in
the best interests of all stakeholders in the system, candidates who have
secured admission in Government Institutions though in other States will
also be entitled to the benefit of dispensation of the bank guarantee too.
Let such a mechanism be put in place forthwith to enable such reciprocity.
45. The Director General of Health Services (DGHS), Ministry of Health
and Family Welfare, Government of India, Nirman Bhawan, Maulana
Azad Road, New Delhi – 110 011 is suo moto impleaded as 5 th respondent
in the above Writ Petitions. Mr.V.Chandrasekaran, learned Senior Panel
Counsel accepts notice for DGHS and undertakes to convey this order to
the DGHS forthwith. The DGHS will appoint a Nodal officer who will
facilitate the process as indicated in the paragraphs as above for the
present academic year. Let this process be completed latest by
14.04.2022.
46. The admission secured by the petitioners in W.P.No.7596 of
2022 and W.P.No.7683 of 2022, will await completion of this process and
further action in terms thereof. G.O.185 dated 13.04.2020 will be read
down to the extent as indicated in this order, and the aforesaid Writ
Petitions are ordered in the aforesaid terms.
4. G.O.(Ms) No. 185, Health and Family Welfare (MCA 1) dated
13.04.2020 will be read down to the extent in order dated 12.04.2022.
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W.P.No.9245 of 2022
5. This writ petition is ordered in the aforesaid terms. Connected
miscellaneous petitions are closed. No costs.
12.04.2022
Index : Yes/No
Speaking Order/Non speaking Order
ska
Note: Issue order copy on 12.04.2022.
To
1.The Principal Secretary to Government of Tamil Nadu
Health and Family Welfrae Deparment,
Secretariat,
Chennai-600010
2.The Director of Medical Education,
No.162, EVR Periyar Salai,
Kilpauk, Chennai-600010
3.The Dean,
Coimbatore Medical College and Hospital,
Coimbatore,641018
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W.P.No.9245 of 2022
DR.ANITA SUMANTH,J.
ska
W.P.No. 9245 of 2022
WMP.Nos.9007 to 9009 of 2022
12.04.2022
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