Full Text
HIGH COURT OF DELHI
Date of Decision: 26.08.2021
10302/2021 DR. ARJUN SAILI ..... Petitioner
Through: Ms. Kajal Chandra, Adv.
Through: Ms. Leena Tuteja, Sr. Panel Counsel for the respondents.
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (Oral)
The hearing has been conducted through video conferencing.
JUDGMENT
1. This petition has been filed by the petitioner seeking a direction to the respondent nos. 1 and 2 to return the original documents of the petitioner that were submitted with them by the petitioner at the time of his admission as a Post Graduate Trainee in MD (Anesthesia) at the Army Hospital (R&R).
2. The petitioner further prayed for an order directing the respondents to withdraw and cancel the Surety Bond dated 28.06.2014 executed by the petitioner. 2021:DHC:2639-DB
3. By a subsequent application, being CM No. 10302 of 2021, the petitioner sought to add yet another prayer to the petition by seeking quashing of the letter dated 17.05.2018 issued by the respondent no. 2 that directed the petitioner to pay the cost of training from the date of his joining as MD (Anesthesia) till the date the petitioner was declared medically unfit, that is, an amount of Rs. 25,93,890/- (Rupees twentyfive lakhs ninety-three thousand eight hundred ninety).
4. The learned counsel for the petitioner submits that she confines her prayer in the present petition only to the prayer seeking the return of the original documents that were submitted by the petitioner at the time of his admission.
5. The petitioner had appeared in the All India Post Graduate Medical Entrance Examination (AIPGMEE) and was selected for admission (Priority V candidate) as a Post Graduate Trainee in MD (Anesthesia) as a stipendiary candidate at AIPGMEE counselling (Extended), conducted by the respondent no. 1 on 20.06.2014.
6. The petitioner, on selection, was issued an admission offer dated 21.06.2014, which inter alia required the petitioner to execute a notarised bond agreement to serve as a Short Service Commission Officer (SSC service) for five years with the Armed Forces Medical Services or pay an amount of Rs. 25 lakhs to the Government of India, if unwilling to join upon the successful completion of the course. The petitioner was also to submit all original certificates, to be kept in the custody of the Academic Cell, Army Hospital (R&R), Delhi Cantt., till the completion of the course. The relevant terms of the offer letter are reproduced hereinbelow:
7. In due compliance with the above stipulation, the petitioner executed a Surety Bond dated 28.06.2014, the terms and conditions of which are reproduced hereinbelow:
8. The learned counsel for the petitioner submits that on completion of the course, the respondents cannot retain the original documents of the petitioner on any ground. She submits that this issue is no longer res integra as a learned Single Judge of this Court in her judgment dated 16.03.2018 passed in W.P.(C) 7230 of 2017, titled Dr. Devenderpal Singh Tomar & Anr. vs. Union of India & Ors., has held that even if there is a claim to be made by the respondents under the Surety Bond, they cannot retain the documents of the candidate and are free otherwise to initiate steps to recover the amount from the candidate in accordance with law. The action of the respondent nos. 1 and 2 to retain the documents in the absence of any condition in the Bond authorising such retention could be totally arbitrary and illegal.
9. On the other hand, the learned counsel for the respondents submits that the petitioner is guilty of playing fraud on the respondents at the time of seeking admission inasmuch as he had concealed his medical condition and was undergoing treatment of MDR Disseminated Koch at the Sir Ganga Ram Hospital, New Delhi. She submits that even during the course, the petitioner did not disclose his pre-existing disease in the Annual Medical Examination in the year 2015. It was only in the Annual Medical Examination for the year 2016 that the petitioner disclosed his illness.
10. She further submits that taking into account this concealment, the respondent no. 2 issued a letter dated 17.05.2018 calling upon the petitioner to pay an amount of Rs. 25,93,890/- as the cost of training from the date of his joining the MD (Anesthesia) course till the date he was finally declared medically unfit. As the petitioner has not paid the said amount, the respondents have retained the original documents with them.
11. She places reliance on the interim order dated 15.09.2017 passed by the High Court of Bombay in Writ Petition Stamp No. 22904 of 2017 titled Dr. Mohit Jain and Ors. v. Armed Forces Medical College and Ors., denying any interim relief of release of original documents to a candidate who refused to join the services in terms of the conditions stipulated. She submits that by the judgment dated 02.04.2019 passed in the said petition (re-numbered as Writ Petition No. 4123 of 2019), the High Court of Bombay dismissed the said petition.
12. She further submits that the Supreme Court, by its judgment dated 19.08.2019, passed in a batch of petitions including Writ Petition
(Civil) No. 376 of 2018, titled Association of Medical Super Specialty
Aspirants and Residents & Ors. v. Union of India & Ors., dismissed the Special Leave Petition against the judgment of the High Court of Bombay and while otherwise upholding the provisions by obtaining the Surety Bond from the candidates and its enforceability, directed the Armed Forces Medical College to consider imposing a condition of compulsory service for a period of two years, the default of which would result in the Doctors recompensing the Government by paying Rs. 20 Lakhs.
13. We have considered the submissions made by the learned counsels for the parties.
14. As noted herein above, the petitioner has not pressed before us his prayer against the Surety Bond and the letter dated 17.05.2018 issued by the respondent no. 2 demanding a sum of Rs. 25,93,890/- from him as the cost of training. These issues, therefore, need not detain us any further. We are also informed that the respondents have already initiated a legal action seeking recovery of the above amount from the petitioner. The Competent Court will therefore, decide these proceedings on their own merit.
15. The only issue, therefore, remaining before us is whether the respondents can lawfully retain the original documents of the petitioner till the petitioner pays the amount claimed by them. We have already reproduced herein above the terms of the offer letter as also the Surety Bond executed by the petitioner. There is no term in either of these documents authorising the respondents to retain the original documents of the petitioner as a security for payment of the amount demanded by them. In fact, to the contrary, the offer letter clearly stipulates that the custody of the original documents will remain with the respondents only till the completion of the course.
16. The learned Single Judge of this Court in Dr. Devenderpal Singh Tomar (supra), considering similar circumstances and terms, has held that the retention of the documents by the respondents would be illegal and their only remedy would be to enforce the surety bond and recover the amount claimed by them in accordance with the law. We are in full agreement with the judgment of the learned Single Judge.
17. The Order dated 15.09.2017 passed by the High Court of Bombay in Dr. Mohit Jain (supra) was merely an interim order and does not bind us.
18. As far as the judgment dated 02.04.2019 of the High Court of Bombay is concerned, the same dealt with the prayer of the petitioner therein seeking a declaration that the surety bond got executed from him was contrary to Rule 12 of the Information Brochure. As noted herein above, the petitioner before us has given up his challenge to the surety bond executed by him. The said judgment did not consider the validity of the retention of documents by the respondents till the Surety Bond is honoured/discharged and payment is made thereunder.
19. Similarly, the judgment of the Supreme Court in Association of Medical Super Specialty Aspirants and Residents & Ors. (supra) dealt with the legality of the demand of the State Governments and the Armed Forces Medical College from the students to execute the surety bond and to insist upon the candidates joining the service with the State Government/Armed Forces Medical Services on completion of their course. The said judgment again did not consider the entitlement of the respondents to retain the original documents of such candidates pending recovery of their demand on the failure of such candidates to join the service.
20. In view of the above, the present Writ Petition is partially allowed directing the respondents to return the original documents to the petitioner within a period of two weeks from today. This direction shall, however, not prejudice the respondents from seeking recovery of the amount demanded by them from the petitioner in accordance with the law. All defence of the petitioner would also remain open in such proceedings.
21. With the above directions, the present petition is disposed of. There shall be no order as to costs.
22. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.
NAVIN CHAWLA, J MANMOHAN, J AUGUST 26, 2021/rv/AB