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2017 DIGILAW 392 (UTT)

Manisha v. State of Uttarakhand

2017-07-18

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. 1. This is an appeal, preferred by nine petitioners, questioning the validity of the judgment rendered by the learned Single Judge on 12th August, 2014, passed in Writ Petition No. 1557 of 2014 (M/S). 2. The petitioners of Writ Petition No. 1557 of 2014 (M/S) has filed the writ petition for the following reliefs:- “(a) Issue a writ or order in the nature of certiorari quashing the impugned Office order dated 28.06.2014 (contained as annexure no. 7 to this writ petition). (b) Issue a writ order or direction in the nature of mandamus commanding respondent no. 3 not to harass the petitioners for non execution of bonds in the form of performa bond (contained as Annexure no. 4 to this writ petition). (c) Pass such order which this Hon’ble Court deem just and proper in the circumstances of the present case. (d) Award the cost of the petition.” 3. The petitioners have prayed for that the order dated 28th June, 2014, as passed by the Principal/Dean of respondent No. 3, to the writ petition, may be set aside. By virtue of the said order, a notice was issued to the petitioners to fill in their bonds by 5th July, 2014, with an undertaking contained in it that they will serve the State of Uttarakhand as Doctors after their completion of their respective MBBS course. 4. A writ of mandamus was also sought not to harass the appellants for non execution of the bonds in the form of performa bonds, contained in Annexure-4 to the writ petition. 5. Looking to the topography and the needs of the people living in the interior areas of the hilly region of the State, the State Government had issued Government Order dated 23rd July, 2008, annexure no. 5 to the writ petition to meet a social purpose. 6. The said Government Order No. 943/XXVIII(I)/2008-19/2005-TC-IV dated 23.07.2008 was issued by the Chief Secretary laying down the modalities for the fees and the bond which the students were required to be filled as an undertaking for serving the State. Since this Government Order was made as part of the record by the appellants themselves, as Annexure-5 to the writ petition, but they have not challenged its validity. 7. Since this Government Order was made as part of the record by the appellants themselves, as Annexure-5 to the writ petition, but they have not challenged its validity. 7. Under Chapter 9 of the C.P.C. in principle, the provision of the C.P.C. has been made applicable in the proceedings before the High Court. If this be so, since at the time when the writ petition was filed, the petitioners were conscious of the Government Order dated 23rd July, 2008 and they have not challenged its validity, if they felt it was affecting their rights. Their action now for drawing any argument, would be barred by the provisions contained under Order 2 Rule 2 C.P.C. For the reasons, they ought to have challenged the Government Order at the time when the writ petition itself was filed. Out of several reliefs available to them, they have chosen to seek the reliefs as referred in the writ. Hence, they have relinquished their part of the claim intentionally, and rather have taken a step further by submitted an affidavit while taking admission to the course. 8. They are now estopped to question the impact of the said Government Order on the conditions imposed on the students completing their MBBS service to serve the State for a specified period. Hence, now, at this stage, the appellants who were in the knowledge of the Government Order are estopped from challenging the same or its impact. The reason being, at the time when the writ petition itself was instituted on 16th July, 2014, the order impugned by the appellants was that on 28th June, 2014, which was an order as a consequence of the Government Order dated 23rd July, 2008, meaning thereby, in view of the principles of waiver and acquiescence the appellant themselves have waived off their rights for questioning the Government Order dated 23rd July, 2008, when they were conscious of the fact that the said Government Order was in existence. 9. The Government Order issued will fall to be within the definition of law as laid down under Article 13 of the Constitution of India, which includes within its ambit an order, by-laws, rules, notification regulations etc. 9. The Government Order issued will fall to be within the definition of law as laid down under Article 13 of the Constitution of India, which includes within its ambit an order, by-laws, rules, notification regulations etc. Since higher education and, in particular, the medical education is contemplated under Schedule 7 List-III Entry 25 of the Constitution of India, it would fall to be the Statutory function of the State to ensure the higher medical education to the people at large, and consequently, the services too to the people. 10. For the purpose of regulating it and ensuring a better service to the people, the Government Order dated 23rd July 2008, was in consonance to Article 13 as well as Article 38 read with Article 47 of the Constitution of India, has its primary duty to improve public health. 11. The nine appellants pursued their writ petition basically on the ground that they qualified their All India Pre Medical Test in 2011, under 15% All India Quota and they were eligible for selection in the MBBS course and after taking their counseling for the purposes of MBBS, they took their admission. 12. To support their contention that the condition of bond was not prevailing, they have placed reliance on Annexure No. 1 to the writ petition, which is a Schedule of Information as furnished to the candidates by the State Authorities, according to which, they contained that names of those institution of respondent No. 3, it appears in the said list at Serial No. 110, which according to the appellants in its column No. 6 provided that no bond is required. 13. But, according to the writ petition, itself, the admission as against 15% seats allocated to the Government Medical Colleges are to be filled up from the candidates selected in AIPMT. It is the case of the appellants that they have taken their admission as no bond was required for stipulating the period of service in the State after the completion of the course. But they simultaneously, admit that the appellants have executed bond, annexure No. 4 to the writ petition, by way of an affidavit, where they undertook that they will serve the State after completion of the course and under the said bond, they were supposed to work in the State, failing which, they were liable to refund back a sum of Rs. 30 lacs to the State. 14. It is admitted case of the appellants and as also apparent from the writ petition that the appellants did submit the affidavit to that effect. The appellants completed their MBBS course after their admission in 2011 in 2015. 15. The writ petition for the relief as quoted came up for consideration before the learned Single Judge and the writ petition was decided by the judgment dated 12th August, 2014, by the learned Single Judge. The learned Single Judge dismissed the writ petition on 12th August, 2014 and while doing so, the learned Single Judge has held out that the issue agitated pertaining to the bond is covered by the decision rendered by this Court in Writ Petition No. 1224 of 2014 (M/S) decided on 3rd June, 2014. Hence, the writ petition too was decided in terms of the said judgment. 16. At the time when the writ petition was decided on 12th August, 2014, the appellants were pursuing their MBBS course. They have not questioned the validity of the said judgment. 17. After the completion of their MBBS course, and after a lapse of 955 days, the appellants have questioned the validity of the judgment dated 12th August, 2014, rendered by the learned Single Judge with delay condonation application, being Application No. 4128 of 2017. Although, normally, this Court should refrain itself from making any observation on the merit of the matter, but, still hesitantly, the Court mention that no right has accrued to the appellants for agitating cause for writ petition for the reasons: “1. They had submitted the bond by way of an affidavit in pursuance to the Government Order dated 23rd July, 2008, hence, their action would be barred by estoppel. 2. If they have submitted an affidavit in pursuance to the Government Order dated 23rd July, 2008, and there was any illegality in it they ought to have knocked door of the Court much before rather than filing the writ petition in 2014. 3. At the time when the writ petition was decided, the appellants were party to the writ petition and they have chosen not to challenge the order for such a long period of 955 days which was rendered by the Court on 12th August, 2014.” 18. Admittedly, the Government Order dated 23rd August, 2008, was not challenged in the writ petition. At the time when the writ petition was decided, the appellants were party to the writ petition and they have chosen not to challenge the order for such a long period of 955 days which was rendered by the Court on 12th August, 2014.” 18. Admittedly, the Government Order dated 23rd August, 2008, was not challenged in the writ petition. It was only a consequential order by which the bonds were invited was put to challenge. 19. The entire action is barred by the principle of estoppel and acquiescence. This Court is not making any observation with regard to the legal impact on the aforesaid core issues which stands determined at the stage of when the Special Appeal has been filed now. 20. The appellants had filed an application for condonation of delay, being Application No. 4128 of 2017. On perusal of the application, seeking condonation of delay, it seems that a very casual attitude has been adopted by the appellants for seeking condonation of delay without assigning any plausible reason as to why and when they were participating in the proceeding of the writ and they have knowledge of the judgment dated 12th August, 2014, why they have filed such a belated application. 21. Although, the law of limitation postulates that the liberal attitude has to be adopted but the theory of liberation for considering the application under Section 5 cannot be unanimously applied in relation to even those litigants who were conscious of the proceedings, they were participating in it, and who had assailed the action maliciously one year after completing their course, taking advantage of pending writ petition, after taking whatsoever benefit accrued to them under the affidavit by way of bond submitted by them. 22. On perusal of the affidavit for delay condonation application, following grounds have been narrated:- “1. That the deponent is one of the appellant in the special appeal and doing pairvi on behalf of other appellants, as such is well acquainted with the facts of the case deposed to below. 2. That the appellants are preferring special appeal against the judgment dated 12.08.2014 passed in WPMS No. 1557 of 2014, Saumya Srivastava and Others vs. State of Uttarakhand and Others. 3. 2. That the appellants are preferring special appeal against the judgment dated 12.08.2014 passed in WPMS No. 1557 of 2014, Saumya Srivastava and Others vs. State of Uttarakhand and Others. 3. That in case the special appeal is not heard on merits and the interim relief is not given, then the appellants will have to forcibly go to serve the State as they have taken one affidavit against the direction of the Hon’ble Supreme Court and even against the direction of the Directorate General of Health Services, Central Government and are trying to do something in the garb of have taken one affidavit which they could not do legally. 4. That as per the appellants were undergoing the MBBS course studies and have very tough studies and very less time for any other activities as such could not approach the Hon’ble High Court for filing special appeal against the order dated 12.08.2014 and the delay has been caused unwillingly and is liable to be condoned in the interest of justice otherwise the appellants will suffer irreparably as the question of their future is involved in the present special appeal and the order dated 12.08.2014 is adversely effecting their rights which they have as being the MBBS students having got the admission after qualifying in All India Examination held for 15% of seats in every Medical Colleges in direction of the Hon’ble Supreme Court and which examination is conducted separately by CBSE and thus no bond or rural service can be forced upon the appellants. 5. That under the facts and circumstances of the case mentioned in details in the memo of special appeal and in the interim relief application and in the delay condonation application and in the interest of justice taking into consideration that the appellants were students when the petition was filed, the delay condonation application of the appellants be allowed and the special appeal be heard on merits in the interest of justice, otherwise the deponent will suffer irreparably and further the interim relief application be allowed during the pendency of the special appeal before this Hon’ble Court.” 23. Learned counsel for the appellants has placed reliance on the order passed by the Hon’ble Apex Court in the case of Anand S. Biji vs. Sate of Kerala and Others, 2002 (1) SLR 314, which dealt with regard to the impact of 15% MBBS All India Quota. Learned counsel for the appellants has placed reliance on the order passed by the Hon’ble Apex Court in the case of Anand S. Biji vs. Sate of Kerala and Others, 2002 (1) SLR 314, which dealt with regard to the impact of 15% MBBS All India Quota. The said order will not be applicable, the reasons being that, the order passed by Hon’ble Apex Court was an interlocutory application in the proceedings before the Apex Court. On posing the question to the appellant as what was the consequence of the aforesaid case before the Hon’ble Apex Court and what was effect of the interim order passed on the interlocutory application, as to whether the lis before the Apex Court has been decided finally or not, no plausible reply has been extended by the counsel rather he submitted that he has no knowledge of it. Hence, since the order as relied by the appellant, being an interlocutory order, will not be a precedent and, hence no reliance can be placed on the same. 24. The learned counsel for the appellants has placed reliance on the order rendered in Writ Petition No. 2557 (MS) of 2013, wherein, the learned Single Judge in the light of the interim order as reported in Anand S. Biji vs. State of Kerala, 2001 (6) SCALE 665 . Paragraph 3 of the said judgment is quoted hereunder:- “3. Indeed in this regard a Three Judge Bench of this Court in Harish Pratap Sisodia vs. Union of India and Others, 1999 (2) SCC 575 , has stated as follows:- It is not disputed that the criteria of eligibility of allotment of seat to MBBS against 15% all-India Quota has been fixed by the CBSE in consultation with the Medical Council of India under a modified scheme approved by this Court. Under that scheme the States and Colleges, cannot insist upon, satisfaction of the "State requirements" as a condition to grant admission to the allottees against 15% All India Quota. It is, therefore, not open to any State to fix any additional eligibility criteria in cases of candidates who fall under 15% All India Quota. The eligibility criteria having been approved by this Court it could not be ignored by the Dean, Medical College, Solapur. In view of this direction, no fresh direction in this regard is required.” 25. It is, therefore, not open to any State to fix any additional eligibility criteria in cases of candidates who fall under 15% All India Quota. The eligibility criteria having been approved by this Court it could not be ignored by the Dean, Medical College, Solapur. In view of this direction, no fresh direction in this regard is required.” 25. The learned Single Judge has directed by way of mandamus that the appellants shall not be compelled to serve the State Government compulsory for five years or to pay the damages to the tune of Rs. 30 lacs. The ratio as considered by the learned Single Judge was based upon the Apex Court judgment which was projected before the learned Single Judge as if it was a judgment. But, on perusal of the same, since the Apex Court was ceased with the interlocutory application and there was no final adjudication, the said judgment cannot be taken to be a ratio for deciding the writ. Hence the said judgment is of no avail to the appellants for grant of reliefs prayed for. 26. There is no reason assigned in the application and, thus, the delay cannot be condoned, merely for the sake of convenience of the appellants who had chosen not to file the Special Appeal earlier and that too when there is no accrual of right to them during the intervening period. On account of their action being barred by principle of estoppel and acquiescence, hence, the appeal fails and the same is dismissed.