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2019 DIGILAW 364 (GAU)

Sumit Kabra v. State of Assam

2019-03-19

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. This order will dispose of WP(C) Nos. 84/2019 and 764/2019. 2. Heard Mr. A.K. Maheswari, learned counsel for the petitioners in both the writ petitions and Mr. B. Gogoi, learned Standing Counsel, Health Department for the respondents. 3. Issue involved in both the two cases is identical. 4. Petitioners are aggrieved by non-release of their original documents by the respondents following resignation from their respective super specialty courses. 5. In WP(C) No. 84/2019, petitioner had taken admission in M Ch Super Specialty course in Neurosurgery in Gauhati Medical College and Hospital (GMCH), Guwahati whereas petitioner in WP(C) No. 764/2019 had taken admission in DM Super Specialty course in Cardiology in GMCH, Guwahati. For personal reasons not fully disclosed in the writ petitions, the two petitioners had resigned from their Super Specialty courses after admission. 6. Be it stated that in the NEET-SS Examinations, 2018 conducted by the National Board of Examinations, the two petitioners were selected on obtaining various positions whereafter petitioner Shri Sumit Kabra opted for M Ch in Neurosurgery in GMCH, Guwahati whereas petitioner Shri Pradip Sarkar opted for DM in Cardiology in the said college. While Shri Sumit Kabra got admission on 10.08.2018, Shri Pradip Sarkar got admission on 30.08.2018. 7. On 26.09.2018, Shri Sumit Kabra submitted application before the Principal, GMCH, Guwahati stating that he wanted to resign his allotted seat due to personal reasons. This was followed by another application dated 01.11.2018 requesting the Principal to return the original documents which the petitioner had handed over to the college authorities at the time of admission. Since documents were not handed over, a reminder was submitted on 21.11.2018. As there was no response, related writ petition WP(C) No. 84/2019 was filed wherein notice was issued on 18.01.2019. 8. In so far petitioner Shri Pradip Sarkar is concerned, after taking admission on 30.08.2018, he submitted an application before the Principal, GMCH, Guwahati on 14.11.2018 stating that because of sudden and unexpected crisis in his family, it was not possible for him to continue his studies. He, therefore, requested the Principal to accept his resignation and to release the original documents handed over by the petitioner to the college authorities at the time of admission. This was followed by reminder dated 18.12.2018. He, therefore, requested the Principal to accept his resignation and to release the original documents handed over by the petitioner to the college authorities at the time of admission. This was followed by reminder dated 18.12.2018. As there was no response, related writ petition WP(C) No. 764/2019 came to be filed wherein notice was issued on 15.02.2019. 9. Respondent No. 3, i.e., Principal, GMCH, Guwahati has filed affidavit in WP(C) No. 84/2019. Since the issue involved in both the writ petitions being identical, the said counter affidavit was taken as the stand of the respondents in both the cases which was agreed to by the learned Standing Counsel. 10. Stand taken in the affidavit is that when petitioner had submitted his application on 01.11.2018 requesting return of original certificates, he was asked to submit Rs. 5 lakhs by way of bank draft payable to the Director of Medical Education, Assam at State Bank of India, Dispur Branch. Since petitioner has not submitted the amount as above, original certificates have not been released. It is stated that petitioner was also verbally told to deposit Rs. 5 lakhs as he had resigned his seat. It is stated that necessary information was uploaded in All India Super Specialty Courses -Allotment Process - Counseling in Directorate General of Health Services, Ministry of Health and Family Welfare on 07.08.2018 and the terms and conditions of the admission process were uploaded on 07.08.2018. All these were available online. As per Condition No. 5, in case a candidate resigns after final round of counseling, penalty of Rs. 5 lakhs would be imposed. Since petitioner has not paid the aforesaid amount, original documents have not been released. 11. Petitioner Sumit Kabra has filed reply affidavit contending that there was no such stipulation at the time of admission for the NEET-SS, 2018 examinations conducted by the National Board of Examinations. There is no such condition that in the event of resignation from super specialty course, a candidate would have to pay penalty of Rs. 5 lakhs. Therefore, insistence of the respondents for payment of penalty of Rs. 5 lakhs as a condition precedent for release of original documents is not justified. 12. In the course of the hearing, Mr. There is no such condition that in the event of resignation from super specialty course, a candidate would have to pay penalty of Rs. 5 lakhs. Therefore, insistence of the respondents for payment of penalty of Rs. 5 lakhs as a condition precedent for release of original documents is not justified. 12. In the course of the hearing, Mr. Maheswari submits that there was neither any written undertaking submitted by the petitioner nor execution of any agreement binding the petitioners to pay penalty in the event of resignation from the course midstream. Guidelines framed by NEET or terms and conditions of examination of NEET do not provide for imposition of such penalty. In the absence of any legal stipulation binding the two parties, withholding of original documents of the petitioners by the respondents on the ground of non-payment of penalty is not justified. 13. Mr. Gogoi, learned Standing Counsel submits that because of the conduct of the petitioners, two precious super specialty seats in GMCH for the year 2018-2019 had gone waste. If the petitioners were not interested in pursuing their courses, they ought not to have taken admission. Meritorious students who were waiting in the queue and who are willing to pursue the above courses would have got an opportunity to pursue such super specialty courses. In the process State has also suffered loss. Therefore, petitioners are required to compensate the State for the loss sustained. It is in this background that demand has been made by the respondents which cannot be said to be arbitrary or unreasonable. In support of his contention, Mr. Gogoi has placed reliance on the information brochure published by the Directorate of Medical Education, Assam for admission into post doctoral (DM and M Ch) degree courses in Gauhati Medical College, Guwahati, more particularly, Clause 5 thereof which says that in the event a candidate resigns or relinquishes a course during the period of post doctoral degree course after admission for any reason whatsoever, he shall have to pay a penalty of Rs. 5 lakhs and only upon such payment, he would be eligible to get back his original documents submitted at the time of admission. 14. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 15. Basic facts are not in dispute. 5 lakhs and only upon such payment, he would be eligible to get back his original documents submitted at the time of admission. 14. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 15. Basic facts are not in dispute. The fact that petitioners were selected through NEETSS, 2018 conducted by the National Board of Examinations pursuant to which they had taken admission in the post doctoral courses of M Ch in Neurosurgery and DM in Cardiology in GMCH, Guwahati is not in dispute. It is also not disputed that after admission and after classes had started, petitioners had resigned from their respective courses and had informed the college authority about their decision. The dispute has arisen on the request of the petitioners to the respondents to release their original certificates submitted at the time of admission following their resignation. Respondents have not released or returned back the original certificates to the petitioners. 16. From the affidavit filed by respondent No. 3 in WP(C) No. 84/2019, it is seen that respondents have taken the stand that petitioners are liable to pay penalty of Rs. 5 lakhs for resigning from their respective courses midstream and which has been made a condition precedent for returning back the original documents. 17. Question for consideration is whether respondents are justified in law in asking the petitioners to deposit Rs. 5 lakhs as penalty for their resignation from their respective courses midstream and only upon such deposit being made, to release or return back the original certificates submitted at the time of admission? 18. Since Mr. Gogoi had placed reliance on the information brochure of the Directorate of Medical Education, Assam, the same may be adverted to at the outset. 18.1. This information brochure was published by the Directorate of Medical Education, Assam when the Directorate had conducted examination for admission into post doctoral degree course in GMCH. Now that the selection is made on all India basis and in so far petitioners are concerned through NEET-SS, 2018, this information brochure may not have any relevance. Otherwise also, an information brochure by its very nature is a booklet furnishing or providing information to persons who desire to have information in respect of a particular admission process. Now that the selection is made on all India basis and in so far petitioners are concerned through NEET-SS, 2018, this information brochure may not have any relevance. Otherwise also, an information brochure by its very nature is a booklet furnishing or providing information to persons who desire to have information in respect of a particular admission process. Such information brochure cannot be equated or elevated to the status of a rule or a legal instrument binding the parties to the admission process. Though Clause 5 provides that if a candidate resigns or relinquishes his seat after admission he shall have to pay penalty of Rs. 5 lakhs to the Director of Medical Education, Assam and if he was paid stipend to return the stipend and only thereafter he would be eligible to get back the original certificates deposited by him, this was the position when the admission exercise was undertaken by the Directorate of Medical Education, Assam and this information brochure relates to such admission process. As already indicated, now that admission process is conducted centrally on all India basis through NEET by the National Board of Examinations, such information brochure of the Directorate of Medical Education, Assam would no longer be applicable. 19. A perusal of the documents annexed to the writ petition as well as the counter affidavit of respondent No. 3 including the information bulletin for NEET-SS, 2018 conducted by National Board of Examinations do not provide for such a contingency. Though in case of admission into undergraduate courses, there is a provision for imposition of penalty of Rs. 3 lakhs in case a candidate resigns after the final round of counseling but in so far postgraduate course is concerned, no such penalty is prescribed. This is also the position in respect of post-doctoral degree courses. 20. From the reply affidavit of the petitioner, it is seen that a draft undertaking has been annexed thereto as Annexure-18 which is however unsigned and undated. 21. Imposition of penalty or realization of fine or appropriation of money from a candidate has to be on the basis of a legally enforceable instrument. There is nothing on record to show that any undertaking or bond was signed by the petitioners giving an undertaking or binding themselves to a certain course of action. Such imposition of penalty is also not provided in the information bulletin of NEET-SS, 2018. There is nothing on record to show that any undertaking or bond was signed by the petitioners giving an undertaking or binding themselves to a certain course of action. Such imposition of penalty is also not provided in the information bulletin of NEET-SS, 2018. In the absence thereof, requiring payment of Rs. 5 lakhs by the petitioners as penalty and making it a condition precedent for releasing or returning back their original certificates cannot be legally sustained. From the documents on record, Court is unable to find any legal requirement or legal stipulation binding the petitioners to pay the said amount. 22. That being the position, demand made by the respondents for payment of Rs. 5 lakhs by the petitioners as a condition precedent for releasing their original certificates cannot be sustained and is accordingly interfered with. 23. However, before parting with the record and without expressing any opinion on the individual decision of the petitioners, what is evident is that in the process, two valuable seats in super specialty course for the year 2018 have gone waste. The authority ought to have visualized such a situation and could have put in place necessary legal framework. The present case, therefore, should be an eye opener for the respondents so that they can take necessary steps like signing of undertaking or bond by a candidate at the time of taking admission. 24. Be that as it may, having regard to the discussions made above, respondents are directed to return the original documents to the petitioners without insisting on payment of any penalty within a period of 15 days from the date of receipt of a certified copy of this order. 25. Both the writ petitions are accordingly disposed of.