STATE OF PUNJAB & ANR. ETC.versusVINEY KUMAR KHULLAR & ORS. ETC.

               (201 OJ 13 (ADDL.) S.C.R. 733


            . STATE OF PUNJAB & ANR. ETC.                      A
                             V.
         VINEY KUMAR KHULLAR & ORS. ETC.
          (Civil Appeal Nos. 9221-9223 of 2010)
                   OCTOBER 22, 2010
                                                               B
     [R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]

     Education - Admission - To post graduate medical
courses for the year 2008 - Prospectus Notification requiring
the in-service candidate to produce NOC in accordance with C
Circular dated 13. 5. 1996 - According to the Circular the
candidates were required to furnish a bond of Rs. 2 lacs for
Government service for a period of 5 years - The Circular
amended by another Circular dated 30. 7.2007 enhancing the
requirement of the bond to Rs. 10 lacs for a period of 10 years D
service - Three candidates given admission in the courses
- But their NOC declared invalid as they would not be able
to render the required 10 years service after the completion
of the post-graduate course due to their superannuation within
5-12 years - Writ Petition - Direction to verify the NOC and E
to permit the candidates to continue the course - On appeal,
held: The amendment Circular dated 30. 7. 2007 not applicable
to the admission for the year 2008 - Therefore, the two
candidates who fulfilled the requirement under the Circular
dated 13.5.1996, permitted to continue the course - The third F
candidate, since did not fulfil the requirement even under
Circular dated 13. 5. 1996, not eligible to continue the course
- However, in view of the fact th.at the candidate has completed
three-fourth of the course, he is given chance to complete the
course subject to the condition that either he would not be G
considered as an in-service candidate, or to continue the
course as an in-service candidate, by paying the bond amount
of Rs. 2 lacs - The order passed by High Court was
unsatisfactory.

                            733                                H
    734    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A      The prospectus Notification dated 17 .3.2008 was
  issued for admission to post graduate degree/diploma
  medical courses for the year 2008. The Notification
  required the in-service doctors to produce NOC in
  accordance with the instructions contained in the
B Circular dated 13.5.1996 which required the candidates
  to fill the bond of Rs. 2 lacs for Government service for
  five years. The Circular dated 13.5.1996 was amended by
  the Circular dated 30.7.2007 whereby the requirement of
  bond of Rs. 2 lacs for five years was increased to bond
c of Rs. 10 lacs for ten years.
       The three respondents in the instant appeals applied
  for admission to 2008-2011 post graduate courses. They
  produced provisional NOC. They were admitted to
  different post-graduate courses in general category as in-
D service candidates. Their provisional NOCs were
  declared invalid by the Department, as all of them were
  due to retire within 5 to 12 years and could not have been
  able to render the required minimum compulsory service
  for ten years after completing the post-graduate course
E as required by amendment Circular dated 30.7.2007.

       The respondents filed writ petitions. The High Court
  disposed of the petitions directing the appellants to verify
  the provisional NOCs with a further direction to permit the
F respondents to continue their studies. Therefore, the
  instant appeals were filed.

          Partly allowing the appeals, the Court

      HELD: 1. The orders of the High Court are
G unsatisfactory as they do not specify what should
  happen if on verification of the provisional NOCs, it was
  found that they are not valid. The direction to appellants
  to permit the three writ petitioners to continue their
  studies was unconditional and was not restricted to the
H
STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR           735
           KHULLAR & ORS. ETC.
period required for verification of the provisional NOCs.   A
[Para 8] [7 42-G-H]

     2. The Prospectus Notification dated 17.3.2008
requires the in-service doctors to produce NOCs in
accordance with the instructions contained in the Circular
                                                           8
dated 13.5.1996 and any other instructions issued by the
Punjab Government. The Circular dated 30.7.2007
increasing the period of minimum service under the bond
from 5 years to 10 years (and bond amount from Rs.2 lacs
to Rs.10 lacs) for PG courses is not mentioned or made
applicable. The words "any other instruction issued by C
the Punjab Government" in the context of the said clause
in the Prospectus cannot be interpreted as referring to
any instruction increasing the burden on the candidates
to secure the No Objection Certificate. A candidate should
be made known about the requirements to be fulfilled by D
him and cannot be exposed to unknown liabilities or
limitations. If the intention was to make the amendment
Notification dated 30.7.2007 applicable to the 2008 PG
admissions, the Prospectus should have referred to that
amendment Circular dated 30.7.2007, while mentioning E
the Circular dated 13.5.1996. The amendment Circular
dated 30.7.2007 was issued after the 2007 admissions
and was sought to be made applicable for the first time
in respect of the 2008 admissions. Therefore, the
candidates for 2008 admissions would not know about F
the said amendment Circular dated 30.7.2007 unless it
was mentioned in the Prospectus. The· candidates would
have bonafide proceeded on the basis that eligibility for
the NOC was in terms of the Government Circular dated
13.5.1996. The fact that provisional NOCs had been G
issued to them also would have led them to believe that
prima facie they were eligible to get the NOCs. In these
peculiar circumstances, the admissions of the
respondents 'K' and 'G' should not be interfered with and
they should be permitted to continue the course, subject H
    736    SUPREME COURT REPORTS. [2010] 13 (ADDL.) S.C.R.


A to giving a bond undertaking to serve for a period of five
  years after completion of the course, and in default pay
  Rs.200,000/-, in terms of the Circular dated 13.5.1996
  without reference to the amendment dated 30.7.2007. It
  is clarified that the non-applicability of the amendment
B memo dated 30.7.2007 is only with reference to 2008
  admissions. The Court has not expressed any opinion
  about its applicability with reference to the admissions for
  subsequent years. [Paras 9, 10 and 12) [7 43-C-H; 744-A-
  B; 745-8-F]
c        3. So far as respondent 'V' is concerned, he was
    ineligible to obtain the NOC even as per the Circular dated
    13.5.1996. As he is due to retire on 31.8.2012, he could
    not serve even for five years, which is the requirement
    under the Circular dated 13.5.1996. As the Prospectus
D   clearly refers to the Circular dated 13.5.1996, he is
    deemed to know that he was ineligible to get an NOC.
    However, as he has also completed more than three-
    fourth of a valuable post-graduate course, it will not be
    proper to remove him from the said course at this belated
E   stage. Therefore, he should be given a chance to
    complete the course, but subject to conditions that he
    shall have the option either to resign from service so that
    he could be considered as having been admitted under
    the 40% quota with all consequences flowing therefrom,
F   or to continue and complete the course without
    resigning, subject to his paying the bond amount of
    Rs.2,00,000/- as liquidated damages for non-fulfillment of
    the essential term of eligibility in terms of the bond that
    will have to be executed by him. [Paras 11 and 12) [7 44-
G   E-G; 745-D]
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    9221-9223 of 2010.

          From the Judgment & Order dated 12.8.2008 of the High
H
 STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR 737
            KHULLAR & ORS. ETC.
Court of Punjab & Haryana at Chandigarh in Writ Petition Nos. · A
8564, 8565 & 9817 of 2008.
    Aajy Pal for the Appellant.

    K.K. Tyagi, lfekhar Ahmad, P. Narasimhan, Sanjay Bansal,
Deepak Bansal, Ajay Choudhary, G.K. Bansal for the                   B
Respondent.

    The Judgment of the Court was delivered by

     R.V.RAVEENDRAN, J. 1. Leave granted.
                                                                     c
      2. The Government of Punjab issued a prospectus
notification dated 11.3.2008 (for short the 'Prospectus')
regarding admission to post graduate degree/diploma in
Medical/ Dental Courses for the year 2008. Clause 14 relates
to allocation of seats and relevant portions thereof are extracted   D
below:

     "14. In the Government institutions, 50% of the total seats
    in every such institution shall be filled by the Government
    of India on all India basis through an all India Competitive
    Entrance test. The remaining seats shall be filled through       E
    the Post Graduate Entrance Test - (PGET). Out of the
    remaining seats, 60% seats shall be filled up from
    amongst the eligible PCMS/fCMS (Dental)/PDES in
    service doctors and 40% shall be open to all eligible
    medical/dental graduates.                                        F

     (a) For 60% seats (In service PCMS/PCMS (Dental)/
     PDES)

    (i) The test shall be open to the candidates who have
    completed a minimum of three years rural service in              G
    PCMS/PCMS (Dental) or a minimum of three years
    Education Service.xx x

    (xi) All PCMS/PCMS (Dental) PDES doctors who are
    selected for admission to Post Graduate courses under            H
    738    SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.

A         60% quota shall have to produce a No Objection Certificate
          from the Director, Health and Family Welfare/Director,
          Research & Medical Edcuation, Punjab, as the case may
          be before joining the course in accordance with
          instructions issued by the department of Health & Family
B         Welfare vide memo No.26!12!94-5HB219990 dated 131
          5196 and any other instruction issued by Punjab
          Government.

          (b) For 40% Seats:-

c         (i) Medical/Dental graduates who are residents of the State
          of Punjab as per instructions of Department of Personnel
          (PP-II Branch) conveyed vide letter no.1/3/95-3PPll/9619
          dated 6/6/1996 and No.1/2/95-3PPll/81 dated 1/1/1999.

          (ii) Any candidate in State Government employment shall
D
          produce a 'No Objection Certificate' from his/her
          employer."

       3. The Government Circular Memo dated 13.5.1996
  referred to in clause 14(xi) of the Prospectus contains the policy
E regarding issue of 'No Objection Certificate' ('NOC' for short).
  The relevant portions thereof are extracted below :

          "1.1) The regular PCMS doctors having 3 years rural
          service/including Adhoc service would be eligible for
          admission in diploma/PG courses in State Medical
F
          College against 60% quota.

          xx xx
          (2) As per the notification issued by the Medical Education
          and Research Department, the candidates who are
G
          selected against 60% quota would be considered to be
          on deputation during the course, but not be paid any
          deputation allowance. On completion of the course, the
          doctor would be reverted to PCMS cadre ....... .

H         (3) Those doctors who do not fulfill the condition as
 STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR                 739
  KHULLAR & ORS. ETC. [R.V. RAVEENDRAN, J.]
    mentioned in para No.1 in case they are selected for           A
    diploma/PC courses would be given admission against the
    40% quota. These doctors would have to resign from the
    job in order to join the diploma/PG courses in Medical
    Colleges of the state.
                                                                   8
    (4) Those doctors who were selected for post
    graduation/Super speciality would have to fill the bond for
    government service for five years as follows :

    (1)   For PG course                           : Rs. 2 lacs
                                                                   c
    (2)   For super speciality course             : Rs. 3 lacs

    If the doctors do not serve the government for the above
    mentioned period, he would have to return the above
    mentioned amount to the government.
                                                                   D
    xx xx
    (7) The PCMS doctors who are selected against 40%
    quota would not be issued any No Objection Certificate by
    Director health and family welfare."
                                                                   E
                                          (emphasis supplied)

The said circular dated 13.5.1996 was amended by government
Circular dated 30.7.2007. Clause (2) of the amendment Circular
required the in-service doctors who are selected for doing post    F
graduate courses to give a bond for Rs.10 lacs undertaking to
render government service for 10 years (instead of a bond for
Rs.2 lacs for five years service earlier prescribed) and that if
the candidate does not serve the government for the full period,
he will have to give double of the amount of bond money to the     G
government.

     4. The first respondent in each of these appeals is an in-
service PDES doctor. They applied for admission to the 2008-
2011 post graduate courses. They obtained and produced
                                                                   H
    740    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A provisional No Objection Certificates, along with their
  applications. The results of Entrance Examination 2008 were
  declared on 27.4.2008 and in the ensuing counselling at the
  Baba Farid University on 12th and 21st May, 2008, they were
  selected and admitted to different Post Graduate Courses in
8 General Category in the 60% quota for in-service candidates.
  Dr. V.K. Khullar was selected for MD (Social and Preventive-,
  Medicine), Dr. G.S. Dhaliwal was selected for MD (Skin & V.D.)
  and Dr. Kamal Kishore for MD (Anesthesiology). When they
  sought No Objection Certificates which had to be produced, the
C department found that all of them were due to retire within 5 to
  12 years and could not render the required minimum
  compulsory service for ten years after completing the three year
  Post Graduate Course. Therefore, the No Objection Certificates
  were not issued.

D      5. The said three candidates filed writ petitions in the
  Punjab & Haryana High Court, praying for issuance of direction
  to the appellants herein, to issue NOCs to them to enable them
  to join the post graduate Medical course and also sought a
  direction to the Government Medical College, Amritsar to
E permit them to join their respective courses. The High Court by
  three short identical orders disposed of the writ petitions with
  a direction to the Appellants (the Principal Secretary,
  Department of Medical Education & Research, Punjab and
  Director, Health & Family Welfare, Punjab) to verify the
F provisional NOCs issued to the writ petitioners within two weeks
  with a further direction to permit the writ petitioners to continue
  their studies. The said orders are challenged in these appeals
  by special leave.

       6. The appellants contend that as the three writ petitioners
G were not issued NOCs, the High Court ought to have
  considered the reason for non-issue of NOC instead of
  permitting the three writ petitioners to join their courses or
  continue their studies. It is contended that only those in-service
  candidates who had sufficient service and who were in a
H
 STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR 741
  KHULLAR & ORS. ETC. [R.V. RAVEENDRAN, J.]
position to furnish a bond undertaking to serve for a period of      A
10 years could be selected for the PG courses; and that the
three writ petitioners were not eligible for getting the NOCs as
they did not have ten years service after completion of the
course. The appellants submitted that the provisional NOCs
issued to the three writ petitioners were declared invalid after     B
verification as they did not comply with the requirement of the
circular dated 13.5.1996 as amended by circular dated
30.7.2007. The appellants submitted the following service
particulars of the three candidates :
                                                                     c
SI. Name of Doctor       Duration Date of       Service left after
No                       of PG    retirement    completion of
                         course                 course

 1.   Dr. V.K. Khullar   2008-11 31.08.2012 1 year 2 months
                                                                     D
2.    Dr. Kamal Kishore 2008-11 30.6.201~       8 years
                                        ,
3.    Dr. G.S. Dhaliwal 2008-11 31.8.2020       9 years 2 months

    7. The three writ petitioners (first respondent in each of the
appeals) contended as follows :                                      E

       (a)   Dr. Kamal Kishore and Dr. G.S.Dhaliwal were
             eligible for admission to the course in terms of the
             prospectus notification dated 17 .3.2008 and that
             they were also eligible to get NOC in terms of the      F
             circular dated 13.5.1996 which required the
             candidates admitted to the course to serve for five
             years after completion of the course.

       (b)   The amendment circular dated 30.7.2007 (which
             introduced the requirement of 10 years service after    G
             completion of the course) was inapplicable to them
             as the prospectus notification dated 17 .3.2008
             stated that they should only obtain an NOC in terms
             of the circular dated 13.5.1996 issued by the
                                                                     H
    742   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A               Punjab Government, and did not refer to the
                amendment memo dated 30.7.2007.

          (c)   Dr. \/. K. Khullar was ready to serve for five years
                after completion of the course in 2011; and his
                retirement would not be a bar to his service as he
B
                could work on retirement on contract basis. In the
                event of Dr. V. K. Khullar being found to be ineligible
                for being selected under the 60% quota, he should
                be considered as having been admitted under the
                40% quota.
c
  They also submitted that the .circular dated 30.7.2007 had been
  challenged other similarly situated candidates (in CWP
  No.8340/2009 - Dr. Gobind Tandon and 37 other vs. State of
  Punjab and others) wherein the Punjab & Haryana High Court
D has made an interim order dated 28.5.2009 permitting the writ
  petitioners therein to join the course by furnishing bonds for the
  remainder of their service instead of furnishing bond for 10
  years service. They also submitted that they have virtually
  completed more than three-fourth of the MD Courses and if any
E action is taken against them at this belated stage by cancelling
  the admissions, the society would lose the services of three
  specialized doctors on whose education, considerable money
  has been spent by the government. They therefore requested
  that they should be permitted to complete the decree and serve
F for the balance period of their service.

        8. The question for consideration is whether the High Court
  could have disposed of the writ petitions by virtual non-
  speaking orders, without considering the various issues, only
  with a direction to verify the provisional NOCs within two weeks
G and permitting the writ petitioners to continue with their studies.
  We find that the orders of the High Court are unsatisfactory as
  they do not specify what should happen if on verification of the
  provisional NOCs, it was found that they are not valid. We also
  find that the direction to appellants to permit the three writ
H petitioners to continue their studies was unconditional and was
STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR                    743
 KHULLAR & ORS. ETC. [R.V. RAVEENDRAN, J.]
not restricted to the period required for verification of the         A
provisional NOCs. Normally, we would have set aside the said
orders of the High Court and remanded the matters with a
direction to the High Court to consider the contentions raised
and pass appropriate orders. But having regard to the fact that
the three writ petitioners (first respondent in each of the three     B
appeals) have already completed 2 years and 3 months out of
the 3 year MD course, any remand would result in further delay,
thereby adversely affecting their interests and also deny the
benefit of their specialised service to the society. Therefore, we
propose to dispose of the matters without remand.
                                                                      c
     9. The prospectus notification dated 17.3.2008 requires
the in-service doctors to produce NOCs. from the Director,
Health & Family Welfare or the Director, Medical Education &
Research as the case may be before joining the course, in
accordance with the instructions contained in the circular            D
dated 13.5.1996 and any other instructions issued by the
Punjab Government. What is significant is that the circular
dated 30.7.2007 increasing the period of minimum service
under the bond from 5 years to 10 years (and bond amount from
Rs.2 lakhs to Rs.10 lakhs) for PG courses is not mentioned or         E
made applicable. The words "any other instruction issued by
the Punjab Government" in the context of the said clause in the
Prospectus cannot be interpreted as referring to any instruction
increasing the burden on the candidates to secure the No
Objection Certificate. A candidate should be made known               F
about the requirements to be fulfilled by him and cannot be
exposed to unknown liabilities or limitations. If the intention was
to make the amendment notification dated 30.7.2007
applicable to the 2008 PG admissions, the Prospectus should
have referred to that amendment circular dated 30.7.2007,             G
while mentioning the circular dated 13.5.1996. Nothing
prevented the Government from stating that the NOC should be
subject to the conditions mentioned in the circular dated
13.5.1996 as amended by circular dated 30.7.2007. It should
be noted that the amendment circular dated 30.7.2007 was
                                                                      H
    744    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   issued after the 2007 admissions and was sought to be made
    applicable for the first time in respect of the 2008 admissions.
    Therefore, the candidates for 2008 admissions would not know
    about the said amendment circular dated 30.7.2007 unless it
    was mentioned in the Prospe!;tus. The candidates would have
    bonafide proceeded on the basis that eligibility for the NOC was
8
    in terms of the government circular dated 13.5.1996. The fact
    that provisional NOCs had been issued to them also would
    have led them to believe that prima facie they were eligible to
    get the NOCs.

C      10. In these peculiar circumstances we are of the view that
  the admissions of Dr. Kamal Kishore and Dr. Gurjeet Dhaliwal
  should not be interfered and they should be permitted to continue
  the course subject to giving a bond undertaking to serve for a
  period of five years after completion of the course, and in
D default pay Rs.200,000/-, in terms of the circular dated
  13.5.1996 without reference to the amendment dated
  30.7.2007. We hasten to add that this would be the position in
  respect of the 2008 PG admissions.

E       11. The position is however different in regard to Dr. V.
  K. Khullar. He was ineligible to obtain the NOC even as per
  the circular dated 13.5.1996. As he is due to retire on
  31.8.2012, he could not serve even for five years, which is the
  requirement under the circular dated 13.5.1996. As the
  Prospectus clearly refers to the circular dated 13.5.1996, he
F is deemed to know that he was ineligible to get a NOC. Hence
  he will not be entitled to the relief extended to the other two
  candidates. However as he has also completed more than
  three-fourth of a valuable post-graduate course, it will not be
  proper to remove him from the said course at this belated
G stage. Therefore, he should be given a chance to complete the
  course, but subject to co11ditions. Dr. V. K. Khullar shall have
  the option either to resign from service so that he could be
  considered as having been admitted under the 40% quota with
  all consequences flowing therefrom, or to continue and complete
H
STATE OF PUNJAB & ANR. ETC. v. VINEY KUMAR                     745
 KHULLAR & ORS. ETC. [R.V. RAVEENDRAN, J.)
the course without resigning, subject to his paying the bond          A
amount of Rs.2,00,000/- for not being able to serve for five
years after completing the course.

     12. In view of the above these appeals are allowed in part
as follows:                                                           B
     (i) Dr. Kamal Kishore and Dr. G.S. Dhaliwal shaii be issued
NOCs on furnishing a bond for Rs. 2 lakhs undertaking to serve
for a period of five years after compleing the MD degree
course. Their admission and continuation in the MD course
shall not be disturbed.                                               c
     (ii) Dr. V. K. Khullar shall be permitted to complete the MD
course, but subject to either resigning from service and
continuing in the course with the terms applicable to candidates
admitted under the 40% quota, or alternatively continue as in-        D
service candidate and complete the course under the 60%
quota subject to payment of Rs.2,00,000/- as liquidated
damages for non-fulfillment of the essential term of eligibility in
terms of the bond that will have to be executed by him.

     (iii) On the facts and circumstances, there is no need to        E
consider the validity of the correctness of the circular dated
30. 7.2007 in these appeals, as the same is held to be
inapplicable to 2008 admissions. We make it clear that the non-
applicability of the amendment memo dated 30.7.2007 is only
with reference to 2008 admissions. We do no express any               F
opinion about its applicability with reference to the admissions
for subsequent years.

K.K.T.                                   Appeals partly allowed.