Madras High Court
Dr.R.Keerthana vs The Principal Secretary To ... on 11 January, 2022
W.P.No.43464 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.43464 of 2016
Dr.R.Keerthana ...Petitioner
Vs.
1.The Principal Secretary to Government
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.
2.The Director of Medical Education
Directorate of Medical Education,
Kilpauk, Chennai – 600 010.
3.The Secretary
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai – 600 010.
4.The Dean
Madras Medical College,
EVR Periyar Salai,
Park Town,
Chennai – 600 003.
...Respondents
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W.P.No.43464 of 2016
Prayer: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Mandamus, directing the 3rd
respondent to refund the amount of Rs.15,00,000/- (Rupees Fifteen
Lakhs Only) to the petitioner which was paid by the petitioner on
08.06.2016 towards the discontinuation fees of the All India Merit
Quota Seat of MD Anaesthesia (Non-Service) Course within a
reasonable time.
For Petitioner : Mr.S.Sivakumar
For Respondents : Mr.D.Ravichander
Special Government Pleader
For [Higher Education]
ORDER
The Writ of Mandamus has been filed to direct the 3rd
respondent to refund the amount of Rs.15,00,000/- (Rupees Fifteen
Lakhs Only) to the petitioner which was paid by the petitioner on
08.06.2016 towards the discontinuation fees of the All India Merit
Quota Seat of MD Anaesthesia (Non-Service) Course within a
reasonable time.
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W.P.No.43464 of 2016
2. The petitioner passed undergraduate Degree in M.B.B.S
in the year 2015 and registered as a Medical Practitioner before the
Medical Council of Tamil Nadu. The petitioner applied for All India
Post Graduate Medical Examinations (AIPGMEE-2016) conducted
by the National Board of Examinations and All India Institute of
Medical Sciences test (AIIMS-2016). The petitioner wrote both the
Post Graduate Examinations. AIPGMEE results were announced at
the earliest, the petitioner was qualified and allotted to MD
Anaesthesia course at Madras Medical College, Chennai.
3. On 01.05.2016, the petitioner had joined Post Graduate
course in MD Anaesthesia (Non Service) in Madras Medical
College, Chennai, as per the allotment of All India Merit Quota by
the Medical Counseling Committee, National Board of
Examinations, Government of India based upon the merit rank
secured by her in the All India Post Graduate Medical Entrance
Examination, January 2016.
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W.P.No.43464 of 2016
4. Subsequently, the petitioner came out successfully in
AIIMS test and she attended for AIIMS Centralized Merit
Counseling on 06.06.2016 along with the Bonafide Certificate dated
30.05.2016 issued by the Dean, Madras Medical College, Chennai.
The petitioner was alloted (Obstetrics and Gynecology) (MD OG)
seat on All India Merit Quota basis. The AIIMS authorities directed
the petitioner to produce the original certificates for verification on
or before 10.06.2016. The petitioner rushed to Chennai and
submitted a requisition on 08.06.2016 to the 4th respondent to return
the original certificates / documents.
5. However, the 4th respondent directed the petitioner to pay
the discontinuation fees of Rs.15,00,000/- (Rupees Fifteen Lakhs
Only) for the purpose of return of certificates. In view of the
urgency, the petitioner had deposited the said amount and received
her certificates and joined the Post Graduate Course at AIIMS. After
depositing the discontinuation fees, the petitioner had chosen to file
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W.P.No.43464 of 2016
the present writ petition.
6. The learned counsel for the petitioner mainly contended
that the discontinuation fees contemplated is not applicable to the
petitioner and even in the Bonafide Certificate issued by the 4th
respondent on 30.05.2016, no condition was imposed. The bonafide
certificate was issued based on the fact that the petitioner was
alloted with the seat to pursue Post Graduate Medical course.
Therefore, the discontinuation fees paid by the petitioner must be
returned.
7. The learned counsel for the petitioner relied on the order
of this Court dated 12.10.2015 in W.P.No.23931 of 2015, wherein,
it is observed that “there is no question of penalty involved as the
petitioner did not discontinue the earlier course but opted for a
better one and as such no penalty need be paid by the petitioner.”
8. Relying on the said judgment, the learned counsel for the
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W.P.No.43464 of 2016
petitioner reiterated that the said case is also relating to the payment
of discontinuation fees and the Court allowed the claim of the
petitioner. Further, the judgment of the Hon'ble Division Bench
dated 01.11.2019 in W.A.No.985 of 2017 was also relied upon,
wherein, the Hon'ble Division Bench on a similar case held that, “in
the absence of any prohibition in the bonafide certificate issued by
the 4th appellant and when the 1st respondent was allowed to attend
the counseling, the appellants could not charge any discontinuation
fees of Rs.15,00,000/-. At the time of issuance of bonafide certificate
itself, if the 4th appellant had made a condition that she had to pay a
sum of Rs.15,00,000/- towards discontinuation fees, the 1st
respondent would have had a second thought about discontinuing
the course or would not have discontinued from the course. No such
condition had been imposed in the bonafide certificate.”
9. The learned counsel for the petitioner relying on the said
judgment reiterated that in the present case also the bonafide
certificate was issued without any condition and therefore
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W.P.No.43464 of 2016
discontinuation fees needs to be refunded.
10. The learned counsel appearing on behalf of the
respondent objected the said contentions raised by the petitioner by
stating that bonafide certificate is absolutely irrelevant and only the
prospectus is relevant. The bonafide certificate was issued for the
purpose of participating in the counseling by the petitioner for All
India Institute of Medical Sciences. The said bonafide certificate
states that the petitioner is under going 1st year Post Graduate
Degree course in MD Anaesthesiology and further, it states that the
4th respondent is possessing the original certificates. Therefore, the
bonafide certificate is no way connected with the counselling
attended by the petitioner before the AIIMS.
11. The very purpose of issuing bonafide certificate is to
inform that the petitioner is pursuing MD course at Madras Medical
College and the college is in possession of the original certificates
and not for any other purpose. Thus, the reliance placed on by the
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W.P.No.43464 of 2016
petitioner on the bonafide certificate is insignificant and cannot
support her case.
12. The learned counsel for the respondents relying on the
counter affidavit has categorically stated that “as per clause 45 of
the policy / prospectus approved by the Government Tamil Nadu,
the Candidates who discontinue the course after the last date of
allotment of seats in final phase of All India Quota counseling shall
pay the Discontinuation Fees to the Deans of the respondent
colleges the sum as specified below in total by way of Demand Draft
drawn in favour of the Secretary, Selection Committee, Kilpauk,
Chennai 10 payable at Chennai.”
13. The respondents have further stated that the last date for
PG admission is 31.05.2016 as per the MCI regulations. The
Government have offered PG courses at a very affordable cost to the
benefit of the poor public. If the petitioner had discontinued the
degree course prior to the cut-off date, there would have been a fair
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W.P.No.43464 of 2016
chance to fill up the vacant seat within the cut-off date. As the
petitioner had submitted her representation to discontinue the
Degree Course only on 07.06.2016. i.e. after the cut off date for
admission, the PG seat in MD Anesthesiology became vacant and
could not be filled up either by All India Quota or by State Quota. As
the MD Anesthesiology seat become vacant after 31.05.2016, the
MD Anaesthesia seat could not be filled up by meritorious
candidate.
14. If the candidate surrendered the seat within the
stipulated time, that seat would have been filled by a meritorious
candidates and their services can be utilized for the welfare of the
needy poor patients. The MCI have recognized 18 No. of seats in
Madras Medical College, Chennai for the year 2016-2017 session.
Teaching faculty sanctioned by the Government for Anaesthesia
department for conducting classes for 18 Nos. of P.G. seats
sanctioned in M.D. Anesthesiology is one Professor and 10 Associate
Professors along with the infra structure facilites. 11 Professors are
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W.P.No.43464 of 2016
conducting the classes for 18 students as per MCI norms. The salary
and other allowances are sanctioned to the Teaching Faculties by the
Government for teaching the 18 candidates. Due to discontinuation
by the petitioner, the faculties are taking classes only for the
available 17 students, which results in non utilization of the facilities
provided by the Government in full.
15. The learned counsel for the respondent relied on the
judgment of the Hon'ble Division Bench of this Court in a similar
case, more specifically, in the case of the Director of Medical
Education and Another Vs. M.Aarthy reported in 2019 SCC
Online Mad 28115, wherein, the Hon'ble Division Bench with
reference to the very same clause i.e., clause 45 of the prospectus
dealt with the issues as follows:
“ 5.The settled legal position is that the
prospectus for any course is a rule of appointment. This
has been settled in several decisions of the Hon'ble
Supreme Court and this Court and there can be no
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W.P.No.43464 of 2016
quarrel on the said legal proposition. In such
circumstances, we hold that the learned writ Court has
erred in holding that Clause 45 of the prospectus is not
binding on the candidate and it is not an agreement or a
contract. What is important to note is that the
prospectus is not contract or agreement and it is a Rule
of Selection and the candidate, who submits an
application pursuant to the prospectus is deemed to have
agreed of the conditions contained in the prospectus.
Therefore, we have no hesitation to set aside the order
and direction issued by the learned writ Court. If we do
so, we have to necessarily interfere with the directions
issued by the learned Single Bench directing to return
the original certificates to the writ petitioner.
6. The petitioner has been clearly informed that
she has secured the PG Degree Course in MS Anatomy
at Madurai Medical College, Madurai as an Non
Service Candidate by all India Quota for the academic
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W.P.No.43464 of 2016
year 2016-2017 and if for any reason, the candidate
does not wish to pursue the course, then in terms of the
prospectus, discontinuation fee has to be paid to the
Dean of the respective College.
7. It is necessary to note the object behind such
condition. We find that the condition is within
reasonable remarks. Admittedly, admission, which the
petitioner sought for is PG Degree Course in Tamil
Nadu Government Medical Colleges / Self Finance
Institution. The prospectus is drawn by the Government
of India and the selection is done by the selection
committee of the Directorate of Medical Education.
8. The candidate, if for any reason, does not
wish to pursue the course, to which she was admitted as
in the instant case in all India quota seat, the seat
allotted to the candidate will remain vacant and no
other candidate can be accommodated in the seat.
Therefore, a lot of thought process has gone into the
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W.P.No.43464 of 2016
aspect, as to why such condition has to be imposed.
Further more, it cannot be denied by the petitioner that
medical education in the Government Medical Colleges
is highly subsidised and asking the petitioner to pay the
discontinuation fee is as compensation for the seat,
which will go waste. As rightly pointed out by the
learned Additional Advocate General that the MD
Anatomy course is very rare course and there is a dearth
of teaching faculty, who is competent to teach anatomy.
9. In the memorandum of the grounds of appeal
it has been mentioned by the respondents / appellants
that the Government is spending Rs.1 crore for each
candidate per year approximately from the public
exchequer and by virtue of the conduct of the petitioner
not only deprived the next eligible candidate but the seat
has gone waste and the public exchequer has been
wasted in the process.“
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W.P.No.43464 of 2016
16. The question arises before this Court is that whether the
discontinuation fees already paid by the petitioner has to be
refunded and the petitioner is entitled for the same or not?
17. It is not in dispute that the petitioner secured admission
to the MD. Anaesthesiology course at Madras Medical College,
Chennai. While she was pursuing the course, bonafide certificate
was issued by the Madras Medical College, Chennai. Thereafter,
she appeared in the counseling conducted by the AIIMS and there
also she secured admission. Thus, the petitioner has chosen to
discontinue the Post Graduate course with Madras Medical College,
Chennai and joined AIIMS at New Delhi. Thus, it is an admitted
fact that the petitioner has discontinued the Post Graduate course
and joined AIIMS at New Delhi.
18. Further, the fact remains that the last date of Post
Graduate admission was on 31.05.2016 as per the MCI regulations.
The petitioner had discontinued the course after the cutoff date for
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W.P.No.43464 of 2016
admission. The cutoff date was 31.05.2016 and the petitioner
submitted a representation to discontinue the Post Graduate degree
course only on 07.06.2016, after the cut off date for admission in the
Post Graduate seat in MD Anaesthesiology. Thus, the seat for Post
Graduate MD Anaesthesiology filled up either by All India Quota or
by state quota became vacant after 31.05.2016 and the seats could
not be filled by meritorious candidates.
19. In this back drop, let us now look into the prospectus and
its clause. Clause 45 of the prospectus issued for admission to Post
Graduate Degree/ Diploma /Yyear M.Ch.(Neuro-surgery) Courses
2015-2016 had states that “The candidates who discontinue the
course after the last date of allotment of seats in final phase of All
India Quota Counselling shall pay the Discontinuation Fees to the
Deans of the respective Colleges the sum as specified below in total
by way of Demand draft drawn in favour of the Secretary, Selection
Committee, Kilpauk, Chennai”.
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W.P.No.43464 of 2016
20. Agreeing the prospectus, the petitioner had secured
admission to the PG medical course in MD Anaesthesiology at
Madras Medical College, Chennai. Further, she discontinued the
course and secured admission at AIIMS, New Delhi. It is not in
dispute that clause 45 of the prospectus provides Discontinuation
Fees to be paid by the candidates who discontinue the course after
the last date of allotment of seats.
21. In the present case, the last date was 31.05.2016 and the
petitioner submitted a representation to discontinue the PG degree
course only on 07.06.2016.
22. The Hon'ble Apex Court of India held in many decisions
that the terms and conditions stipulated in the prospectus of the
course are binding on the parties. It is a rule of selection in respect
of the student for admission to various courses and once the
prospectus is issued the same cannot be modified with regard to the
disadvantage of the students as also by the Institution. Thus, the
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W.P.No.43464 of 2016
prospectus is binding on the parties and the rule of admission has to
be followed by the parties to the prospectus.
23. The Hon'ble Division Bench of this Court in the case of
Director of Medical Education and Another Vs. M.Aarthy cited
supra, extracted the principles that prospectus is a rule of selection
and the candidates who submitted an application pursuant to the
prospectus is deemed to have agreed the condition contained in the
prospectus. Therefore, the rule of selection has to be followed in the
event of any discontinuation of courses at the instance of the
students.
24. The very purpose and object of such conditions in the
prospectus is that, once a seat became vacant after the last date, the
same cannot be filled up by meritorious candidates. The Government
is spending huge amount for the PG Medical courses and in the
event of allowing PG Medical course to lapse, undoubtedly, huge
loss is created for the State. Further, the next meritorious candidate
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W.P.No.43464 of 2016
is also deprived from securing seat to the PG Medical course.
25. Considering these situations and to discourage students
from securing admission in other College and submitting
discontinuation letter, such conditions are stipulated. Once a
decision is taken agreeing the prospectus, they cannot turn around
and say that they will discontinue the course and will not pay
Discontinuation charges. Such a stand if taken by the students at no
circumstances be accepted. Every student is expected to take one
stand, either to pursue the course or in the event of securing better
course or better college, they must be ready to pay discontinuation
charges as the discontinuation is causing huge loss to the state.
26. Further, the discontinuation is resulting in denial of seat
to the next meritorious candidates who is longing to secure Post
Graduate course. It is not as if a student can secure PG Medical
Course in two or more colleges and discontinue the course from one
college and such discontinuation would cause loss to the State and
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W.P.No.43464 of 2016
deprive the other candidates from getting admission. Such an idea of
students can never be appreciated.
27. This being the facts and circumstances, the judgments
relied up on by the petitioner is of no avail to her. Contrarily, the
judgment of the Hon'ble Division Bench in the case of Director of
Medical Education and Another Vs. M.Aarthy cited supra held that
the prospectus is a rule of selection of candidates. Therefore, the
said preposition has to be followed and consequently, the writ
petitioner has not made out any acceptable grounds for considering
the relief as it sought for in the present writ petition.
28. Accordingly, the writ petition stands dismissed. No
costs.
11.01.2022
Jeni/Kan
Internet : Yes
Index : Yes
Speaking order : Yes / No
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W.P.No.43464 of 2016
To
1.The Principal Secretary to Government
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.
2.The Director of Medical Education
Directorate of Medical Education,
Kilpauk, Chennai – 600 010.
3.The Secretary
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai – 600 010.
4.The Dean
Madras Medical College,
EVR Periyar Salai,
Park Town,
Chennai – 600 003.
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W.P.No.43464 of 2016
S.M. SUBRAMANIAM, J.
Jeni/Kan
W.P.No.43464 of 2016
11.01.2022
https://www.mhc.tn.gov.in/judis
