Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 9221-9223 OF 2010 [Arising out of SLP [C] Nos.29693-29695 of 2008]

State of Punjab & Anr. … Appellants

Vs.

Dr. Viney Kumar Khullar & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. The  Government  of  Punjab  issued  a  prospectus  notification  dated  

17.3.2008 (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  

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 the Post Graduate Entrance Test – (PGET). Out of the  

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remaining seats, 60% seats shall be filled up from amongst the eligible  PCMS/PCMS (Dental)/PDES in service doctors and 40% shall be open to  all eligible medical/dental graduates.

(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  PCMS/PCMS  (Dental)  or  a  minimum of three years Education Service.  x x x  

(xi)  All  PCMS/PCMS  (Dental)  PDES  doctors  who  are  selected  for  admission  to  Post  Graduate  courses  under  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  Welfare  vide  memo  No.26/12/94- 5HB2/9990  dated  13/5/96  and any  other  instruction  issued  by  Punjab   Government.   (b) For 40% Seats:-

(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.1/3/95-3PPII/9619 dated 6/6/1996 and No.1/2/95-3PPII/81  dated 1/1/1999.

(ii) Any candidate in State Government employment shall 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 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 College against 60% quota.

x x x x

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2) As  per  the  notification  issued  by  the  Medical  Education  and  Research Department, the candidates who are 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……..  

3) Those doctors who do not fulfill the condition as mentioned in para  No.1 in case they are selected for 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.

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        (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.  

x x x x

7) The PCMS doctors who are selected against 40% quota would not  be  issued  any  No  Objection  Certificate  by  Director  health  and  family welfare.”

(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 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  

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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 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 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 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 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.  

5. The said three candidates filed writ petitions in the Punjab & Haryana  

High Court,  praying for issuance of direction to the appellants  herein,  to  

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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  

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 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 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 position to furnish a  

bond undertaking to serve for a period of 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 verification as they did not  

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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 :  

Sl.  No.

Name of Doctor Duration of PG  Course

Date of retirement Service left after  completion of course

1. Dr. V.K. Khullar 2008-11 31.08.2012 1 year 2 months

2. Dr. Kamal Kishore 2008-11 30.6.2019 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 :  

(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 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 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 Punjab Government, and did not refer  

to the amendment memo dated 30.7.2007.

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(c) Dr. V. 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 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.

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 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 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 for the balance period  

of their service.  

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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 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 petitioners to continue their studies was  

unconditional and was not restricted to the period required for verification of  

the 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 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.  

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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 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 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 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, 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  

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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 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 issued to them also would have led them to believe that prima facie  

they were eligible to get the NOCs.  

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 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.

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.  

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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 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  stage.  

Therefore, he should be given a chance to complete the course, but subject to  

conditions.  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  the  course  without  resigning,  subject  to  his  paying  the  bond  

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 :

(i) Dr. Kamal Kishore and Dr. G.S. Dhaliwal shall 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.

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(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-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  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 opinion about its  

applicability with reference to the admissions for subsequent years.   

………………………..J. (R V Raveendran)

New Delhi; ………………………J. October 22, 2010. (H L Gokhale)              

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