Madras HC grants Rs 15 lakh compensation to Doctor who was denied MS General Surgery admission at PIMS despite allotted seat by CENTAC
Chennai: The Madras High Court bench recently directed Pondicherry Institute of Medical Sciences (PIMS) to pay Rs 10 lakh compensation to a doctor, who was denied an MS General Surgery admission at the institute despite being allotted the seat by CENTAC. Further, the division bench of Justices R Subramanian and R Kalaimathi directed CENTAC to pay Rs 5 lakh as compensation to the doctor for failing to take appropriate action.
The bench also criticized the action by the Government authorities and noted, "We find that the Puducherry Health Department and the CENTAC have acted in a very irresponsible manner in not addressing the grievance of the petitioner immediately... We sincerely hope and pray that the Officials of these Centralized Admission Committees are a little more sensitive when such matters are brought to their attention, since they are dealing with lives of students."
The Court also expressed anguish at the manner in which education has been commercialized by unscrupulous private individuals or institutions, who claim themselves to be serving the cause of the society.
Expressing its hope that the National Medical Commission (NMC) takes appropriate action, the bench further noted, "It is rather unfortunate that the eyes have been made a commercial commodity, which can be acquired at a very high cost. We hope and expect that National Medical Commission takes appropriate action to prevent recurrence of such aberrations at the instance of private educational Institutions."
The plea was filed by a medical graduate who is serving as an Assistant Surgeon with the Government of Puducherry. After appearing in NEET exam in 2017, he appeared in the common counselling held by Centralized Admission Committee (CENTAC) and was allotted a seat in M.S. (General Surgery) in the Pondicherry Institute of Medical Sciences (PIMS).
The admission was not granted as the petitioner, who was a government sponsored candidate, denied to pay Rs 30 lakh as fees. Apart from informing CENTAC about this, he also approached the HC bench and consequently an interim order was granted by the Court, directing PIMS to keep one seat vacant in M.S. (General Surgery).
During the pendency of the matter, the Fee panel set up by the Puducherry Government fixed the fee for seats in Post Graduate courses under the 50% Government Quota at Rs 3 lakh per year. Soon, thereafter, the petitioner paid the concerned Rs 3 lakh by way of Demand Draft.
Later, the fee panel revised the dees to Rs 5.5 lakh as fee and the petitioner offered a Demand Draft for the balance of Rs 2,50,000 to the PIMS. However, the Institute refused to receive the said fee and therefore, the petitioner sent it to the CENTAC on 31.05.2017.
PIMS returned the Demand Draft for Rs 3 lakh and writing to the petitioner, the institute informed about rejection of the nomination on two grounds- the fees were not paid as decided by the Court, the petitioner had not executed one year service obligation bond. This letter was challenged before the High Court.
The institute also admitted another candidate on 31.05.2017 by collecting a sum of Rs 25 lakh as fees. The concerned candidate was allotted to another medical college and he paid the fees in two instalments.
Resisting the plea before the HC, PIMS contended that the petitioner lost his right to claim the seat. Further, referring to the Prospectus issued by the institute on 02.05.2017, the institute contended that the fee for MS (General Surgery) was fixed at Rs 30 lakh. Referring to this, the institute argued that the students seeking admission to the said course should have been aware of the fact that they were bound to pay Rs 30 lakh de hors the fact that they were sponsored by the CENTAC or not.
It was also contended that the Institute did not surrender any seats to the Government and therefore, the candidate cannot contend that he was a Government candidate and therefore, he would pay only the fee fixed by the Fee Fixation Committee. It was also pointed out that on the day when the petitioner was allotted to the said Institute, there was no order of the Fee Fixation Committee and the very order fixing the fee was only made on 14.05.2017. Referring to this, the institute argued that even if the seats were surrendered, the fee fixed by the Institute alone would be applicable.
Previously, while considering the issue, the Single Judge bench dismissed the petitions on the ground that the petitioner did not comply with the requirements of the admission process and having opted for PIMS, the petitioner was not entitled to seek admission without complying with the requirements set out in the prospectus of the institute. Aggrieved by this, the petitioner approached the Division bench of the High Court.
The counsel for the petitioner argued that the Single Judge bench overlooked the fact that the PG Medical Education Regulations, 2000 as they stood on 04.05.2017, when the petitioner attended the counselling, required 50% of the total seats to be filled up by the State Government or the Authority appointed by the State Government in non-governmental Medical Colleges and Institutes under Clause VI of Regulation-9.
Referring to the concerned regulations providing for a common counseling, the petitioner's counsel further argued that Clause-(iii) of the said regulation, candidates should be allotted to the Institutes only by way of a common counselling to all PG courses in medicine. Therefore, according to the petitioner's counsel, de hors the contents of the prospectus which was issued in February, 2017 mandate of the Regulations, which was made during March, 2017 would prevail and therefore, once the petitioner is allotted under the Government quota, he is entitled to admission on the payment of fee prescribed by the Committee.
After taking note of the submissions by all the parties, the HC bench noted that there is no provision in the regulations framed by the Medical Council of India regarding the right of a private medical Institutions to demand a bond from PG Medical student, who is assigned / allotted to it in the common counselling. "The absence of such regulation in the year 2017 is understandable in as much as common counselling for PG admission was introduced only in the year 2017 by insertion of Rule 9-A..." noted the HC bench.
"Unfortunately, either CENTAC or the Directorate of Health Services, Government of Puducherry took up the matter seriously and left it to the petitioner to defend himself against a mighty Medical College namely, the Pondicherry Institute of Medical Sciences," the bench further observed.
Observing that a nebulous or uncertain prevailed in 2017 regarding PG medical admissions, the bench opined that the college took advantage of the situation "to deny a seat to the petitioner and accommodate another student, who was allotted to another Medical College at a higher fee."
The Division bench observed that the Writ Court upheld the actions of PIMS on the ground of the prospectus, which provided for payment of fee fixed by it and for execution of a service bond. At this outset, the bench observed, "We are unable to subscribe to the views of the Hon'ble Judge, who decided the Writ Petitions. The prospectus was issued on 06.02.2017. Thereafter, there was a complete change in the admission process to PG Medical seats. Rule 9-A was introduced in March 2017, which made it mandatory for all State Governments to conduct counselling for all PG Medical seats, irrespective of the fact whether they are in private medical institutions or Government medical institutions. Rule 9(vi) provided for allotment of seats in Private or Government Medical Institutions by a Centralized Admission Committee. These regulations have been totally overlooked by the Writ Court resulting in the Writ Court applying the well settled law that the prospectus will be binding on the students."
Although the bench did not dispute the binding nature of the prospectus, it further opined that the institute needs to complement the regulations issued by the regulatory bodies.
"We are not for a moment disputing or doubting the correctness of the rule relating to the binding nature of the prospectus. At the same time, when regulatory bodies, which have the power to regulate admissions, frame certain regulations after the issuance of the prospectus and before the admission happens, those regulations will have to be implemented by the Institutions and if the regulations contain a different procedure, then the prospectus, which is a contract between the parties will have to definitely take the back seat," observed the bench.
"As we have already pointed out, the notification issued by the Government of India, requires a Government servant, who has obtained a seat on study leave to rejoin service after completion of the leave and work for the Government. Therefore, he is prevented by law from undertaking to serve any other authority in the interregnum. The other students, who are from Government service, who had been admitted by the 4th respondent itself, have been exempt from executing a bond allowing after their admissions. In fact, the petitioner himself has executed a bond to serve the Government of Puducherry after completing his study holidays. This by itself would show that the insistance of a bond to serve the Institution by the 4th respondent Institution is wholly impermissible and against the service regulation of the Government servant," the High Court further observed.
At this outset, the bench further referred to the submission by the institute that whenever the Government doctors have been allotted by CENTAC, they have been exempted from executing a bond subsequently.
"The same yardstick has not been, unfortunately, applied to the petitioner. The 4th respondent hurriedly, probably because there was a demand for the seat at a higher price, sent a letter dated 02.06.2017 denying admission to the petitioner. This, in our opinion, is wholly unjust and cannot at all to be approved by us," the bench opined.
Referring to the Supreme Court order in the case of Association of Medical Superspeciality Aspirants and Residents and Others Vs. Union of India and Others, where the Apex Court upheld the right of the Government to demand a bond for service, the HC bench noted, "The said decision of the Hon'ble Supreme Court was based on the fact that State run Institutions are offering Medical Course at a highly subsidised rates and therefore, they have the right to insist upon a bond for service. The same cannot be applied to a private Institution, which collects a higher fee when compared to a State run Institution."
"The fact that the serving Doctors take up higher education on study leave are not paid stipend since they are receiving salary from the State Government, is also a factor that should be taken into account in considering the question whether such Institutions would be entitled to demand a bond for service from the Doctors in Government employment. The fact that the right of the Government to insist a bond has been approved will not automatically extend the right to Private Institutions also," the bench observed.
"Today, when education has become a subject matter of commerce and all private educational Institutions demand a higher fee from the students, permitting them to insist upon a bond for service particularly, from persons, who are serving in Government employment would be a traversity of justice. The absence of any regulation regarding such requirement in the year 2017 can be accepted in as much as Centralized Admission Process itself was only commenced in the year 2017 but, continuance of such absence, even today, surprises us and we would only implore the National Medical Commission, which is a body invested with all the powers to regulate Medical Education in the country, which is today a pure commerce, to provide for regulations regarding the rights of medical Institutions conducting Post Graduate courses regarding service bonds," further noted the bench.
Therefore, the bench concluded that a demand for a service bond from a Doctor, who is serving the Government and undertakes PG education on study leave, cannot be accepted and opined that the institutes do not have a right to demand such a bond.
In respect of non-payment of fee, the bench noted that the petitioner paid the fee fixed by the Fee panel on 14.05.2017 by way of Demand Draft and further noted, "We find that the 4th respondent has received the fees of Rs.3,00,000/- from atleast two Government Doctors, who are admitted to PG courses in the year 2017, after 15.05.2017. It also received the balance of Rs.2,50,000/- as per the fixation done by the Fee Committee on 24.05.2017 and on 31.05.2017. Therefore, the communication issued by the 4th respondent on 02.06.2017 that the allotment of the petitioner stands cancelled due to non-payment of fees is wholly unsustainable."
Slamming the institute, the Court further noted,
"Even otherwise, this Court by its order dated 11.05.2017 made in W.P.No.12347 of 2017 had directed the Institute to keep one seat vacant. That order was in force on 02.06.2017 namely, the day on which, the order impugned in W.P.No.14393 of 2017 was made. There is not only an infraction of order of this Court but there is also an infraction of procedure by the 4th respondent. The refusal by the 4th respondent to admit the petitioner even in a seat that was available on 31.05.2017 is illegal. The admission granted to Doctor, Arun Sundaram on 31.05.2017, when the petitioner's admission remained inforce is another illegality committed by the 4th respondent."
"As far as non-submission of bond to pay the balance fees as may be directed by this Court, we do not find any demand by the 4th respondent to the petitioner, asking him to provide such undertaking before 02.06.2017. In fact, right to make such a demand did not arise on 02.06.2017. An undertaking to pay the fees as decided by the High Court in a Writ Petition filed by the different Institution cannot be demanded by the 4th respondent. De hors such undertaking, any candidate, who is admitted shall be liable to pay the fees prescribed by this Court, if at all there is an increase. We are therefore of the opinion that all the three reasons cited by the Institution in the letter dated 02.06.2017 are make believe reasons, which cannot be sustained at all," noted the bench.
Holding the institute liable for denying admission to the petitioner, the High Court bench observed,
"We are therefore, of the considered opinion that the action of the 4th respondent in denying a seat to the petitioner is illegal and the fact that the petitioner has been able to secure a seat in a different Institution in the next academic year will not absolve the 4th respondent by its liability to compensate him for the injustice that has been committed to him. It will not be out of place to point out that other Government Doctors, who were admitted for the Post Graduate courses in 2017 would steal a march over the petitioner in the seniority and the same will have its effect till the petitioner retires on attaining superannuation."
Opining the institute's action to be "reprehensible", the bench held PIMS and the officials of CENTAC, Puducherry responsible for the petitioner being denied admission during the academic year 2017-2018. Noting that the petitioner secured admission in another college in the next year and successfully completed his PG course, the bench further opined,
"That by itself will not cure the injury that has been inflicted on the petitioner by the 4th respondent."
Therefore, the HC bench directed PIMS to pay the petitioner a monetary compensation of Rs 15 lakh within four weeks and ordered, "Of the above said sum of Rs.15,00,000/-, the College namely, the 4th respondent will pay a sum of Rs.10,00,000/- as it is primarily responsible for rejecting a seat unjustly to the petitioner. The CENTAC will pay a sum of Rs.5,00,000/- as compensation for its inaction, despite having been informed about the plight of the petitioner. The above amounts shall be paid within a period of four weeks from today."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/madras-hc-pims-221735.pdf
