ORDER
N. Paul Vasanthakumar, J.
1. The prayer in the writ petition is to issue a writ of Mandamus directing the respondents to entertain the application No. 1446 for admission to Post Graduate degree/Diploma/5 year M.C.(Neuro Surgery) courses in Government/Self Financing Medical Colleges in the State of Tamil Nadu for the Academic Session 2010-11 sent on 27.01.2010 by the petitioner, acknowledged by the first respondent vide AR. No. 5489.
2. The petitioner also prayed for an interim direction directing the respondents to permit the petitioner to take part in the competitive examination to be held on 21.02.2010 (Sunday) for selection to Post Graduate course.
3. This Court, by interim order dated 19.02.2010, granted permission to the petitioner to write the competitive examination, subject to the result of the writ petition by specifically stating that the petitioner shall not claim any equity later only on the basis of permission granted by this Court to write the examination and the respondent shall not publish the result of the petitioner, until further orders from this Court.
4. The case of the petitioner is that after passing M.B.B.S degree he joined as Assistant Surgeon on contract basis on 18.3.2005 and he was treated as Assistant Surgeon appointed under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules. Thereafter, in the year 2007, a special examination was conducted by TNPSC for regular selection and the petitioner was selected and now he is working as Medical Officer in Panagudi Primary Health Centre, Tirunelveli District.
5. During the academic year 2009-2010, the respondents called for applications from candidates aspiring admission for Post Graduate Courses. The petitioner applied for admission as a service candidate. The petitioner has come out successfully and the counseling was held for admission/allotment of seats on 18.06.2009 and he was allotted a P.G. Diploma Seat called D.P.M. in Madras Medical College. According to the petitioner, due to personal and family problem which the petitioner faced at that time, he could not join the course at Madras Medical College. Petitioner claims that within two hours from the time of intimation given to the petitioner, he informed his willingness to surrender the seat and informed the selection committee and therefore he did not join the course and returned to Tirunelveli.
6. On 21.6.2009, the petitioner's name was found in the select list, which was seen through Internet and also about the allotment of seat. According to the petitioner, after knowing the same, on 22.06.2009, he sent a letter by Fax to the first respondent followed with another letter on 03.07.2009 by Registered Post. However, the petitioner received a memo on 26.11.2009 calling for explanation for not joining the P.G. Diploma Course, D.P.M. (Diploma in Psychological Medicine) which was allotted on 18.6.2009 II phase of counselling. The petitioner was also informed that under Clause-6 of the Prospectus issued for the year 2010-11 for admission to the Post Graduate Degree/Diploma Courses, the candidates who have taken allotment for Post Graduate Degree/Diploma/5 year M.Ch(Neuro Surgery)/M.D.S. Courses in any branch and not joined the course, are not eligible to apply for two years from the date of appearance for the Entrance Examination (i.e. debarred for two years for appearance in the subsequent Entrance Examination). The petitioner was directed to submit his explanation and the petitioner submitted his explanation on 3.12.2009 enclosing the fax messages dated 22.6.2009 and registered letter dated 3.7.2009 through proper channel i.e. through the Deputy Director of Health Services, Tirunelveli and no reply is received from the respondents till date.
7. The second respondent called for applications for admission to post Graduate degree/diploma/5 year M.Ch (Neuro Surgery) and M.D.S. Courses for the year 2010-2011 and the last date for submission of the application was fixed as 01.02.2010. The petitioner also applied through proper channel and received the acknowledgment card bearing AR.No.5489. The hall tickets have been sent to other candidates and the petitioner having not received the hall ticket for appearing in the examination scheduled to be held on 21.02.2010, he filed the present writ petition with the above said prayer.
8. The respondents have opposed the writ petition by filing a counter affidavit by stating that only on 22.6.2009, the petitioner sent fax messages to the selection committee and forwarded the copy of the Fax message to the Selection Committee through Registered Post on 3.7.2009. It is further stated that as per the schedule of admission for 2009-10, as fixed by the order of the Supreme Court, the last date for joining the respective courses to the allotted students was fixed on 20.6.2009 and thereafter no candidate can join in any of the PG course for that year in all the States including the State of Tamil Nadu and no intimation having been received from the petitioner regarding non-joining on 18.6.2009 or 19.6.2009 as well as on 20.6.2009 no other candidate was allotted in the said seat and the seat was not filled up and therefore as per Clause 6 of the prospectus the petitioner cannot appear for the PG degree/diploma course Entrance Examination for two years i.e for 2010-2011 and 2011-2012. By stating the said reasons, the respondents have prayed for dismissal of the writ petition.
9. Heard the learned Counsel for the petitioner and the learned Government Advocate for the respondents.
10. Learned Counsel for the petitioner submitted that it was orally informed to the first respondent on 18.6.2009 about the inability of the petitioner to join in the Diploma course. When the same is disputed by the first respondent in the counter affidavit, a copy of the allotment order was also directed to be produced before me. In the said order, it is stated that the petitioner has to report before the Institution where he has to join viz, Madras Medical College on 18.6.2009 before 5 p.m. The Learned Counsel for the petitioner conceded that no other material is available to establish the petitioner's contention that he has intimated about his non-joining before the last date of closing the admission i.e. 20th June, 2009. The material produced before this Court about his non-joining on 20.6.2009 is dated 22.6.2009 i.e. two days after the last date was over. Hence, the contention of the petitioner cannot be accepted and the seat remain vacant for 2009-2010, for which the petitioner alone is responsible. The reply given on 3.12.2009 by the petitioner for the notice dated 26.11.2009 reads as follows:
By Register Post with Acknowledgment due
Dr. N. Sivakumar,
Medical officer,
Panagudi PHC,
Tirunelveli District.
To
The Additional Director of Medical Education/Secretary,
Selection Committee,
Directorate of Medical Education,
Chennai-10.
Sub: Reference Letter No. 1829/SC SII (1)/2008, dated 26.11.2009 - Explanation for not joined the P.G. Seat and Reminder of Fax Message on22.06.2009 and letter send on 03.07.2009.
Through: Proper Channel
Respected Sir/Madam,
On 02.11.2009, I received a letter from Selection Committee, regarding explanation for not joined the P.G. Seat taken on 18.06.09 II Phase of counselling. Due to my family problem and my health problem, I was not able to join the course and I send the fax message, twice on22.06.2009 and I send the fax message copy to the Selection Committee through Register Post on 03.07.2009. But, I didn't get any reply. Herewith I enclosed all the letters which already send previously Kindly accept my explanation letters which already send previously. Kindly accept my explanation letter and please give the permission to write the coming 2010 P.G. Examination.
Sorry for the Inconvenience.
Thanking you,
Yours faithfully,
Place: Panagudi
Date: 03.12.2009
Sd/-
(Dr. N. Sivakumar)
11. In the prospectus issued to the candidates as stated supra, Clause 6 for the year 2009-2010 clearly stated that if the candidate failed to join after the selection, he will be debarred from appearing for selection for the subsequent two years. Clause 6 reads as follows:
The candidates who have joined Post Graduate Degree/Diploma/5 year M.Ch.Neuro Surgery/MDS courses in any branch and discontinued the courses on any grounds after cut off date fixed by the Medical Council of India and the candidates who have taken allotment for PG Degree/Diploma/5 year M.Ch. Neuro-Surgery/MDS courses in any branch after 25.05.2010 and not joined the course on or before the cut off date are not eligible to apply for 2 years from the date of appearance for the Entrance Examination.
The petitioner, having applied for admission as per the said prospectus, is bound by the said prospectus issued for the year 2009-2010. The said position is no longer a dispute as the same is settled by the various decisions of this Court as well as of the Supreme Court. In my Judgment reported in : (2009) 1 MLJ 1103 (Dr. S. Rajesh v. State of T.N.) the said position is made clear. Paragraphs 15 to 20 and 23 of the said judgment reads as follows:
15. The binding nature of the instructions to the candidates is well settled. The notification/instructions to candidates issued by the TNPSC for the year 2003-3004, came up for consideration before a Division Bench of this Court in the decision reported in 2006 WLR 574 (Dr. M. Vennila v. Tamil Nadu Public Service Commission). In paragraph 16, the question as to whether the requirement as stated in the Notification/Information Brochure are to be strictly complied with or not and whether they are mandatory was considered. In paragraphs 19 and 25, the Division Bench held thus,
19. The principle that the prospectus is binding on all persons concerned has been laid by the Supreme Court in Punjab Engineering College, Chandigarh v. Sanjay Gulati : AIR 1983 Supreme Court 580 : 1983 (96) LW 172 S.N. Following the same, a Division Bench of this Court has also observed in Rathnaswamy, Dr. A. v. Director of Medical Education 1986 WLR 207 that the rules and norms of the prospectus are to be strictly and solemnly adhered to. The same view is also taken by another Division Bench of this Court in Nithiyan P. and S.P. Prasanna v. State of Tamil Nadu 1994 WLR 624. The same principle is reiterated in the case of Dr. M. Ashiq Nihmathullah v. The Government of Tamil Nadu and Ors. reported in 2005 WLR 697. It is clear that the prospectus is a piece of information and it is binding on the candidates as well as on the State including the machinery appointed by it for identifying the candidates for selection and admission.
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25. In the earlier part of our order we have extracted relevant provision, viz., Instructions, etc. to Candidates as well as the Information Brochure of the Tamil Nadu Public Service Commission, we hold that the terms and conditions of Instructions, etc. to Candidates and Information Brochure have the force of law and have to be strictly complied with. We are also of the view that no modification/relaxation can be made by the Court in exercise of powers under Article 226 of the Constitution of India and application filed in violation of the Instructions, etc. to Candidates and the terms of the Information Brochure is liable to be rejected. We are also of the view that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed unless such power is specifically provided to a named authority by the use of clear language. As said at the beginning of our order, since similar violations are happening in the cases relating to admission of students to various courses, we have dealt with the issue exhaustively. We make it clear that the above principles are applicable not only to applications calling for employment, but also to the cases relating to the admission of students to various courses. We are constrained to make this observation to prevent avoidable prejudice to other applicants at large.
16. In the impugned order, the respondent only reiterates the clause contained in the instructions to candidates, which the petitioners also undertook to abide by while filling their application forms. They have participated in the examination, attended counselling and also subjected themselves for selection after accepting all the terms and conditions, joined their course of study and completed their course of study.
17. Whether a person accepting the conditions contained in the norms for selection can challenge the said conditions after participating in selection, came up for consideration before the Supreme Court in the decision reported in AIR 1998 SC 795 (Union of India and Anr. v. N. Chandrasekharan and Ors.), wherein in paragraph 13 it is held thus,
13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report....
18. The principle of estoppel is considered by the Honourable Supreme Court in various decisions.
(i) In the decision reported in AIR 1978 SC 28 (I.L. Honnegouda v. State of Karnataka and Ors.) the Honourable Supreme Court held thus,
In view of our judgment in Appeals Nos. 883 and 898 to 905 of 1975 : (Reported in : AIR 1977 SC 876) which has just been delivered and the fact that the appellant acquiesced to the 1970 Rules by applying for the post of the Village Accountant, appearing before the Recruitment Committee for interview in 1972 and 1974 and taking a chance of being selected, the present appeal which questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be allowed. It is accordingly dismissed but without any order as to costs.
(ii) In : 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla) in paragraph 24, the Honourable Supreme Court held thus,
24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.
(iii) In : AIR 1995 SC 1088 : (1995) 3 SCC 486 (Madan Lal v. State of Jammu & Kashmir), (SCC p.9) it is held thus,
9. ...The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla : AIR 1986 SC 1043 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
(iv) The above said decisions of the Supreme Court were followed by the Full Bench of this Court in the decision reported in AIR 2000 Mad 174 (R. Murali v. R. Kamalakkannan) (FB) and in paragraph 55, question No. 2 was answered thus,
Question No. 2: We hold that writ petitioners are not entitled to challenge the selection after having participated in the written examination on the principle of estoppel.
19. The above referred judgments are followed in a recent decision of a Division Bench of this Court in (2007) 5 MLJ 648 (Indian Airlines Ltd. v. K. Narayanan), wherein the contention of the management therein that person participated in selection in terms of the notification are estopped from challenging the mode of selection or the conditions contained in the instructions/rules was upheld.
20. I have also considered similar issue in W.P.(MD) Nos. 9694 and 9695 of 2007 and dismissed the writ petitions by order dated 22.11.2007, holding that the rules of selection are binding on the candidates, who participate in the selection without demur. The writ appeals preferred against the said order in W.A.(MD) Nos. 90 and 91 of 2008 were also dismissed by Division Bench by judgment dated 5.2.2008.
23. Thus it is beyond doubt that the prospectus is the rule of selection, which is binding on the parties....
12. Applying the above principles to the facts of this case, I hold that the petitioner is not eligible to write PG Degree/Diploma entrance examination for selection to the course during 2010-2011 and 2011-2012. Hence, the writ petition is dismissed. No costs. Consequently, M.P. No. 1 of 2010 is also dismissed.