etc (Dr.S.Kiran Kumar Others v. The State of Tamil Nadu Others) has been enclosed in the typed set of
Case Details
Acts & Sections
W.P.No.13959 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.05.2024CORAM :THE HON'BLE MR.JUSTICE G.R.SWAMINATHANW.P.No.13959 of 2024Dr.S.Mohamed Nidhal ... Petitionervs1.The State of Tamil Nadu, represented by its the Principal Secretary, Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Directorate of Medical Education, represented by the Director of Medical Education, Kilpauk, Chennai – 600 010.3.The Directorate of Medical andRural Health Services, represented by the Director of Medical Health andRural Health Services, 359, Anna Salai, Chennai – 600 006.__________Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20244.The Directorate of Public Health andPreventive Medicine, represented by the Director of Public Health andPreventive Medicine, 359, Anna Salai, Chennai – 600 006.5.Government Madras Medical College represented by its Dean, Chennai – 600 003.... RespondentsPrayer : Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of mandamus directing the respondents 2 to 4 to treat the petitioner's bond service of six months as completed and to consequently terminate his bonded service in the Government Hospital, Musiri, Trichy District and further to direct the 5th respondent to return his original certificates and documents collected during his post-graduate admission along with his Post-Graduate degree certificate, transfer certificate and conduct certificate within a time limit.For the Petitioner:Mr.M.Vijaya RaghavanFor the Respondents:Mr.E.SundaramGovernment Advocate__________Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024ORDERHeard both sides.2.The petitioner herein successfully completed his Post Graduate Course in the fifth respondent college since 2021. When the petitioner joined the course, he was a non service candidate. The petitioner had executed a bond undertaking to serve the Government of Tamil Nadu for a period of two years after completing the course. This bond period had subsequently been reduced to one year.3. The petitioner claims to have done the Covid Duty for one year. The question is whether the petitioner should be called upon to undergo the balance bond period of service.4.The learned counsel appearing for the petitioner points out that as a student, the petitioner had rendered what is called as "Covid duty". The contention of the learned counsel appearing for the petitioner is that this should be treated as bond service. Since the petitioner's request was not considered, the present writ petition came __________Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024to be filed.5.The issue raised in this writ petition is no longer res integra. Copy of the order dated 07.12.2023 made in W.P.No.33228 of 2023 etc (Dr.S.Kiran Kumar & Others Vs The State of Tamil Nadu & Others) has been enclosed in the typed set of papers. Yet another order dated 02.02.2023 in W.P.No.26556 of 2022 (Dr.Jayakrishnan M.P & Others Vs The State of Tamil Nadu & Others) has also been enclosed. Para 12 to 19 of the said order read as follows:“12. The only aspect is that the petitioners were unfortunately studying Super Specialty Courses at thatparticular point of time. The core issue is thus the voluntary offering of medical service to treat covid-19patients. Voluntarily offering themselves to treat covid-19 patients could be by Post Graduates and incidentally also by those who are studying Super Specialty Courses after completing their Post Graduates course. The petitioners were studying Super Specialty Courses and I hold that the said fact should not be held against them. If they had avoided giving treatment to Covid 19 patients on the ground that they are studying Super Specialty Courses then, __________Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024the petitioners could be found fault with. But they had also undergone the same risk and had treated the patients. The concept of adjustment of that service rendered during covid-19 is to also appreciated. The risk which the medical professionals had put themselves while treating the patients during the first phase of covid-19 when vaccinations had not been discovered put every front line worker at risk. Many of suffered that risk.13. Viewed from the angle of rendering of medical service either as students of Super Specialty courses as professionals, who had completed Post Graduation and not studying doing Super Specialty Courses, I hold that the risk which the petitioners had undergone has to be equated with the risk of every other medical professional.14. The core element is purely offering services. If it had been so offered, then that fact should be appreciated. The only manner in which that could be appreciated is to adjust that particular service with the two years bond period is the argument.15. I hold that the petitioners herein would be reasonably justified if they were to opine that they __________Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024stood discriminated when compared with those Post Graduate, medical professionals, who were not studying Super Specialty Courses merely because they were students doing Super Specialty Courses.16. Every medical professional would appreciate the service at that critical period. Appreciation should be extended not only to those, who had completed the course but also to those who were studying in Super Specialty Courses. A student, who is studying in Super Specialty Courses had also exposed, would himself or herself to the infection. Taken into consideration the specialised courses which they were undergoing and the stage of their career, they could have easily avoided that duty and sought protection on the ground that they were students. The petitioners did not avoid the call for duty.17. I hold that the Government has to extend arm to them and adjust that particular service rendered towards the two years of bond service which they had to undergo. There is no refusal on their part to undergo the two years period but they only expect to seek adjustment of the period already spent while treating covid-19 patients.__________Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 202418. I hold that the refusal by the respondents cannot withstand judicial scrutiny. It would also be discretionary as against the petitioners herein when they are compared with other medical professionals, who had actually completed their Post Graduate study study as the petitioners.19. I would therefore give a direction to the respondents to accommodate adjusting the period already completed with the bond period and return their educational certificates within a period of three weeks from the date of receipt of a copy of this order.”When I was about to allow the writ petition by citing these two orders, the learned Government Advocate informed me that a learned Judge of this Court vide order dated 22.04.2024 in W.P.No.10799 of 2024 which also involved identical set of facts declined to grant relief.6.In fact, the petitioner's counsel was fair enough to submit even at the very outset that except this solitary order, all the other orders which would run to scores are on the same lines as that of the order dated 02.02.2023 in W.P.No.26556 of 2022.__________Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20247.The learned counsel appearing for the petitioner would submit that the Hon'ble First Bench of this Court vide order dated 16.11.2023 in W.P.No.25827 of 2023 (Dr.D.Hariharan & Others Vs The Union of India & Others) had taken the view that Covid duty should be considered as bond service. Paragraph 7.3 of the said order reads as follows:“7.3. We are also considering one more aspect in granting such an interpretation i.e., the number of patients treated by these Post-Graduate medical students and the amount of duty they have put in all these Government wards is no less when compared to the temporary Medical Officers who have been recruited. As a matter of fact, the Post-Graduate medical students did not even have an option. As rightly contended by Mr.Suhrith Parthasarathy, the learned Counsel, the duties rendered by them have been held to be equivalent to that of the regular Medical Officers in the earlier ruling of this Court in W.P.No.26556 of 2022 etc. Thus, when the term “Medical Officer” is not expressly defined in the __________Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024special rules and when both the rules and the Government Order use the said phrase in a common manner across cadres to mean 'Doctors', we hold that the same would also mean the Post-Gradurate students in Government Hospitals in the content of grant of incentive marks for the selfless service rendered by them in COVID – 19 wards putting themselves and their lives to risk.”The overwhelming weight of authority in the light of the order passed by the Hon'ble First Bench impels me to answer the issue raised in the writ petition in favour of the petitioner. It is declared that the Covid duty performed by the petitioner shall be treated as bond service. It is stated that the petitioner's original certificates are with the fifth respondent.8.I have been consistently holding that one's educational certificates cannot be retained for any reason as no lien can be claimed thereon. Educational certificates are not marketable commodities within the meaning of Section 171 of the Indian Contract Act, 1872.__________Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20249.The fifth respondent is directed to return the petitioner's original certificates forthwith and without delay. The second respondent is directed to formally relieve the petitioner from the bonded service. This shall be done within a period of four weeks from the date of receipt of a copy of this order.10.This writ petition is allowed accordingly. There shall be no order as to costs. 24.05.2024 Index :Yes/NoNeutral Citation:Yes/Nobbr/ssaTo1.The Principal Secretary, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai – 600 010.3.The Director of Medical Health and Rural Health Services, Directorate of Medical and Rural Health Services, 359, Anna Salai, Chennai – 600 006.4.The Director of Public Health andPreventive Medicine, Directorate of Public Health andPreventive Medicine,__________Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024 359, Anna Salai, Chennai – 600 006.5.The Dean, Government Madras Medical College, Chennai – 600 003.__________Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024G.R.SWAMINATHAN, J.bbr/ssa W.P.No.13959 of 202424.05.2024__________Page 12 of 12
W.P.No.13959 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.05.2024CORAM :THE HON'BLE MR.JUSTICE G.R.SWAMINATHANW.P.No.13959 of 2024Dr.S.Mohamed Nidhal ... Petitionervs1.The State of Tamil Nadu, represented by its the Principal Secretary, Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Directorate of Medical Education, represented by the Director of Medical Education, Kilpauk, Chennai – 600 010.3.The Directorate of Medical andRural Health Services, represented by the Director of Medical Health andRural Health Services, 359, Anna Salai, Chennai – 600 006.__________Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20244.The Directorate of Public Health andPreventive Medicine, represented by the Director of Public Health andPreventive Medicine, 359, Anna Salai, Chennai – 600 006.5.Government Madras Medical College represented by its Dean, Chennai – 600 003.... RespondentsPrayer : Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of mandamus directing the respondents 2 to 4 to treat the petitioner's bond service of six months as completed and to consequently terminate his bonded service in the Government Hospital, Musiri, Trichy District and further to direct the 5th respondent to return his original certificates and documents collected during his post-graduate admission along with his Post-Graduate degree certificate, transfer certificate and conduct certificate within a time limit.For the Petitioner:Mr.M.Vijaya RaghavanFor the Respondents:Mr.E.SundaramGovernment Advocate__________Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024ORDERHeard both sides.2.The petitioner herein successfully completed his Post Graduate Course in the fifth respondent college since 2021. When the petitioner joined the course, he was a non service candidate. The petitioner had executed a bond undertaking to serve the Government of Tamil Nadu for a period of two years after completing the course. This bond period had subsequently been reduced to one year.3. The petitioner claims to have done the Covid Duty for one year. The question is whether the petitioner should be called upon to undergo the balance bond period of service.4.The learned counsel appearing for the petitioner points out that as a student, the petitioner had rendered what is called as "Covid duty". The contention of the learned counsel appearing for the petitioner is that this should be treated as bond service. Since the petitioner's request was not considered, the present writ petition came __________Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024to be filed.5.The issue raised in this writ petition is no longer res integra. Copy of the order dated 07.12.2023 made in W.P.No.33228 of 2023 etc (Dr.S.Kiran Kumar & Others Vs The State of Tamil Nadu & Others) has been enclosed in the typed set of papers. Yet another order dated 02.02.2023 in W.P.No.26556 of 2022 (Dr.Jayakrishnan M.P & Others Vs The State of Tamil Nadu & Others) has also been enclosed. Para 12 to 19 of the said order read as follows:“12. The only aspect is that the petitioners were unfortunately studying Super Specialty Courses at thatparticular point of time. The core issue is thus the voluntary offering of medical service to treat covid-19patients. Voluntarily offering themselves to treat covid-19 patients could be by Post Graduates and incidentally also by those who are studying Super Specialty Courses after completing their Post Graduates course. The petitioners were studying Super Specialty Courses and I hold that the said fact should not be held against them. If they had avoided giving treatment to Covid 19 patients on the ground that they are studying Super Specialty Courses then, __________Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024the petitioners could be found fault with. But they had also undergone the same risk and had treated the patients. The concept of adjustment of that service rendered during covid-19 is to also appreciated. The risk which the medical professionals had put themselves while treating the patients during the first phase of covid-19 when vaccinations had not been discovered put every front line worker at risk. Many of suffered that risk.13. Viewed from the angle of rendering of medical service either as students of Super Specialty courses as professionals, who had completed Post Graduation and not studying doing Super Specialty Courses, I hold that the risk which the petitioners had undergone has to be equated with the risk of every other medical professional.14. The core element is purely offering services. If it had been so offered, then that fact should be appreciated. The only manner in which that could be appreciated is to adjust that particular service with the two years bond period is the argument.15. I hold that the petitioners herein would be reasonably justified if they were to opine that they __________Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024stood discriminated when compared with those Post Graduate, medical professionals, who were not studying Super Specialty Courses merely because they were students doing Super Specialty Courses.16. Every medical professional would appreciate the service at that critical period. Appreciation should be extended not only to those, who had completed the course but also to those who were studying in Super Specialty Courses. A student, who is studying in Super Specialty Courses had also exposed, would himself or herself to the infection. Taken into consideration the specialised courses which they were undergoing and the stage of their career, they could have easily avoided that duty and sought protection on the ground that they were students. The petitioners did not avoid the call for duty.17. I hold that the Government has to extend arm to them and adjust that particular service rendered towards the two years of bond service which they had to undergo. There is no refusal on their part to undergo the two years period but they only expect to seek adjustment of the period already spent while treating covid-19 patients.__________Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 202418. I hold that the refusal by the respondents cannot withstand judicial scrutiny. It would also be discretionary as against the petitioners herein when they are compared with other medical professionals, who had actually completed their Post Graduate study study as the petitioners.19. I would therefore give a direction to the respondents to accommodate adjusting the period already completed with the bond period and return their educational certificates within a period of three weeks from the date of receipt of a copy of this order.”When I was about to allow the writ petition by citing these two orders, the learned Government Advocate informed me that a learned Judge of this Court vide order dated 22.04.2024 in W.P.No.10799 of 2024 which also involved identical set of facts declined to grant relief.6.In fact, the petitioner's counsel was fair enough to submit even at the very outset that except this solitary order, all the other orders which would run to scores are on the same lines as that of the order dated 02.02.2023 in W.P.No.26556 of 2022.__________Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20247.The learned counsel appearing for the petitioner would submit that the Hon'ble First Bench of this Court vide order dated 16.11.2023 in W.P.No.25827 of 2023 (Dr.D.Hariharan & Others Vs The Union of India & Others) had taken the view that Covid duty should be considered as bond service. Paragraph 7.3 of the said order reads as follows:“7.3. We are also considering one more aspect in granting such an interpretation i.e., the number of patients treated by these Post-Graduate medical students and the amount of duty they have put in all these Government wards is no less when compared to the temporary Medical Officers who have been recruited. As a matter of fact, the Post-Graduate medical students did not even have an option. As rightly contended by Mr.Suhrith Parthasarathy, the learned Counsel, the duties rendered by them have been held to be equivalent to that of the regular Medical Officers in the earlier ruling of this Court in W.P.No.26556 of 2022 etc. Thus, when the term “Medical Officer” is not expressly defined in the __________Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024special rules and when both the rules and the Government Order use the said phrase in a common manner across cadres to mean 'Doctors', we hold that the same would also mean the Post-Gradurate students in Government Hospitals in the content of grant of incentive marks for the selfless service rendered by them in COVID – 19 wards putting themselves and their lives to risk.”The overwhelming weight of authority in the light of the order passed by the Hon'ble First Bench impels me to answer the issue raised in the writ petition in favour of the petitioner. It is declared that the Covid duty performed by the petitioner shall be treated as bond service. It is stated that the petitioner's original certificates are with the fifth respondent.8.I have been consistently holding that one's educational certificates cannot be retained for any reason as no lien can be claimed thereon. Educational certificates are not marketable commodities within the meaning of Section 171 of the Indian Contract Act, 1872.__________Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 20249.The fifth respondent is directed to return the petitioner's original certificates forthwith and without delay. The second respondent is directed to formally relieve the petitioner from the bonded service. This shall be done within a period of four weeks from the date of receipt of a copy of this order.10.This writ petition is allowed accordingly. There shall be no order as to costs. 24.05.2024 Index :Yes/NoNeutral Citation:Yes/Nobbr/ssaTo1.The Principal Secretary, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai – 600 010.3.The Director of Medical Health and Rural Health Services, Directorate of Medical and Rural Health Services, 359, Anna Salai, Chennai – 600 006.4.The Director of Public Health andPreventive Medicine, Directorate of Public Health andPreventive Medicine,__________Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024 359, Anna Salai, Chennai – 600 006.5.The Dean, Government Madras Medical College, Chennai – 600 003.__________Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13959 of 2024G.R.SWAMINATHAN, J.bbr/ssa W.P.No.13959 of 202424.05.2024__________Page 12 of 12