Dr.T.Muthukumar, Vs. the Secretary to Government, Health and Family Welfare (B1) Department, and anr. - Court Judgment

Excerpt:
this writ petition is filed under article 226 of the constitution of india, praying this court to issue a writ of certiorarified mandamus calling for the records of the first respondent relating to the communication dated 10.10.2005 in letter no.57907/b1/2004-05 and quash the same and consequently direct the respondents to refund to the petitioner as sought in the representation dated 17.11.2004 the amounts collected towards service bonds from the petitioner pursuant to demand notices, which are contrary to law. 1. the prayer in the writ petition is to quash the order dated 10.10.2005 passed by the first respondent and direct the respondents to refund the total amount of rs.7,07,525/- collected from the petitioner towards service bonds, based on his representation dated 17.11.2004.2. the brief facts necessary for disposal of the writ petition are as follows:(i) the petitioner is a qualified medical practitioner, passed mbbs degree from the madras medical college in the year 1990. he joined as assistant surgeon in the tamil nadu medical services on 20.1.1992. (ii) the petitioner appeared for all india entrance examination, conducted by the all india institute of medical science, new delhi, for post graduate course and he was selected and admitted to m.d.(general medicine) in stanley medical college, chennai and he underwent the course from 29.5.1992 to 31.3.1994. the petitioner after passing m.d.(general medicine) course, was selected for the super speciality course in d.m.(nephrology) in the post graduate institute of research, chandigarh. the petitioner met the costs for undergoing the p.g. courses from his own funds. (iii) the petitioner was granted extraordinary leave without pay and allowance to undergo d.m.(nephrology) course from 1.7.1996 to 13.7.1998 and he also executed a bond on 28.6.1996 to the effect that he would pay a sum of rs.1,69,080/- or a proportionate sum in case he fails to serve the government of tamil nadu for a period of five years on completion of super speciality course, on account of resignation, retirement or in the event of removal or dismissal from service. the petitioner, after completing the d.m.(nephrology) course, rejoined duty in madras medical college on 14.7.1998 and served for about three years. (iv) the petitioner was further selected to undergo fellowship training in transplantation immunology from 10.2.2001 to 8.2.2003 at presbyterian hospital, new york, attached to the cornell university. he was directed to execute a service bond on 15.11.2000 similar to the first bond with an undertaking to serve the government for a period of three years or pay the sum specified. by g.o.ms.no.330 health and family welfare department dated 1.3.2002, the government extended the extraordinary leave without pay and allowance for one more year. (v) according to the petitioner, the tamil nadu study leave rules, 1965 and fundamental rules, particularly f.r.11a and rule 17(3) of the tamil nadu study leave rules, 1965 stipulate that a person is bound to execute a bond to serve the government only for availing study leave, other than extraordinary leave, without pay and allowance. in g.o.ms.no.8 p&ar; department dated 8.1.1997 the government permitted the government servants to go abroad to participate in seminars, conferences, workshops, refresher courses in service training and specialised training at their own costs by availing extraordinary leave without pay and allowances and such of those persons need not execute any bond. the said government order further states that the said concession would be applicable to past cases also. g.o.ms.no.61 dated 6.4.1999 was issued to extend the benefits to higher studies. (vi) petitioner contends that he having availed the leaves without pay and allowances on both the occasions when he pursued higher studies, d.m. and fellowship training, he is entitled to get the benefits of the above said government orders. therefore the bond executed by the petitioner dated 28.6.1996 and 15.11.2000 are unenforceable. (vii) the petitioner after completion of the training at the medical college, new york, returned to india and rejoined duty on 8.3.2003 as assistant professor in the department of nephrology, madras medical college, pursuant to the order issued by the director of medical education dated 7.3.2003. (viii) petitioner sent a representation on 31.3.2003 and pointed out the unenforceability of the bonds and requested to cancel the bonds. he was subsequently transferred to the stanley medical college as assistant professor, department of nephrology, on 3.7.2003. according to the petitioner, he submitted further representation on 30.7.2003 and requested to extend the benefits of g.o.ms.nos.8 and 61 to the first bond dated 28.6.1996. (ix) as the petitioner had to be away from the country, he tendered his resignation on 3.9.2003 with a request to relieve him with effect from 11.8.2003. on 25.11.2003 a communication was received from the department stating that he had worked only for 1046 days instead of 1826 days and therefore he would have to pay the proportionate bond amount of rs.1,69,080/- for the balance period of 780 days and he was directed to remit a sum of rs.72,245/- along with interest at the rate of 10% per annum from 11.8.2003. (x) on 5.12.2003 an intimation was given to the third respondent stating that the petitioner's resignation had not been accepted and he had to return to duty by 10.12.2003 or to face disciplinary proceedings and also proceedings under the revenue recovery act for recovery of the said amount. (xi) on 15.12.2003 petitioner received another order directing him to remit the sum of rs.3,99,744/- amounting to 24 months pay and allowance with 10% interest from 11.8.2003 to 14.12.2003 on the ground that the bond condition mentioned in service bond dated 15.11.2000 was not complied with. another demand notice for a sum of rs.1,925/- was issued on 17.2.2004 by stating that he had purportedly failed to serve the government for the balance period of 780 days out of 1865 days after completion of m.d.(general medicine) course. the 4th demand notice was issued on 19.2.2004 directing the petitioner to pay a sum of rs.49,288/- along with interest at 10% from 11.8.2003 to 19.2.2004 on the ground that he had drawn a stipend from 29.5.1992 to 31.3.1994 while undergoing course of m.d.(general medicine) at stanley medical college. the 5th demand notice dated 14.4.2004 was issued demanding a sum of rs.2,19,233/- towards expenses incurred by the government for giving training to the petitioner in m.d.(general medicine) course during the period from 1992 to 1994. (xii) the petitioner further contended that the respondents having imposed a pre-condition to pay the said amounts to accept the letter of resignation, the petitioner was forced to pay a total amount of rs.7,58,738/- claimed through the said five demand notices. according to the petitioner as he is not bound to pay the said amount and he submitted representations to refund the said amount. no action having been taken on the said representations, petitioner filed w.p.no.19725 of 2005 and this court by order dated 18.6.2005 directed the first respondent to dispose of petitioner's representation dated 17.11.2004 within 12 weeks. thereafter the impugned order dated 10.10.2005 was passed rejecting the request of the petitioner. (xiii) the reasons stated in the impugned order are that from the date of joining in the tamil nadu medical service till the date of tendering resignation, petitioner spent maximum period only to undergo higher studies/specialised studies than rendering service to the people. while the petitioner requested to relieve him to undergo isn fellowship, he has given an assurance that he will not take any job in u.s.a. and will return back to the institution and accepting the said assurance, extraordinary leave was sanctioned without pay and allowances in relaxation of f.r.18(4) to undergo higher training as a special case. however, in breach of the said assurance the petitioner tendered resignation and left the institution, even without waiting for the expiry of three months notice period. hence the representation seeking return of the bond amounts was rejected. (xiv) the impugned order is challenged in this writ petition on the grounds that the said amount having been demanded and paid by mistake, the same cannot be retained by the government; that the petitioner had not been paid any salary and allowances during the periods of undergoing d.m. course and fellowship training; that the government orders having granted exemption from executing bond, the demand and acceptance of the bond as well as amounts from the petitioner is illegal; and that, before rejecting the representation petitioner was not given the opportunity of hearing and therefore the said order is passed in violation of the principles of natural justice.3. the respondents have filed counter affidavit and denied the averments made in the affidavit. it is stated in the counter affidavit that deputation of the petitioner for training was granted on his executing bonds twice to serve the government for the period of study leave or to pay the amount equivalent to two years pay and allowances together with interest. after completing the training he joined duty on 8.3.2003 and he submitted his resignation on 10.8.2003 with a request to accept his resignation from 11.8.2003. before accepting the resignation one has to remit all contractual obligation amounts to the government and three months notice is also mandatory before tendering the resignation. it is further stated in the counter affidavit that the petitioner was paid stipend i.e., pay and allowances and other benefits while he was permitted to undergo m.d.(general medicine) course. the petitioner, though studied d.m.(nephrology) at chandigarh at his own cost, the said period was treated as study period and it could be counted for pension if he continued in service. he also executed a bond and it is not cancelled till date and therefore he has to fulfil the conditions contained in the bond. similarly the isn fellowship at new york undergone by the petitioner, though with his own cost, the said period has also been treated as study period and it could also be counted for pension if he continued in service. petitioner having executed the bond and the same having not been cancelled, he has to fulfil the conditions contained in the bond. the amount has been collected from the petitioner as per fr.11a and rule 17 of the tamil nadu study leave rules, 1965. the request made by the petitioner to refund the bond amounts was rejected considering the fact that he has agreed at the time of permitting him to undergo the studies, more particularly taking note of the conduct of the petitioner in not serving the patients of the state. the request made by the petitioner to cancel the bonds were also rejected. it is also stated in the counter affidavit that having remitted the amounts for accepting the resignation without any protest, he is not entitled to seek refund of the amounts paid so long as the acceptance of the resignation stands.4. mr.t.r.rajagopalan, learned senior counsel appearing for the petitioner submitted that when the bonds themselves need not have been executed by the petitioner, merely because the same were executed, the same cannot be put against the petitioner to claim the amounts. the action of the respondents in demanding the amounts and the petitioner having been forced to remit the same, not refunding the amount paid is in violation of the government orders and therefore the petitioner is entitled to get refund of the amount as prayed in this writ petition.5. mr.p.wilson, learned additional advocate general on the other hand submitted that the petitioner having executed the bonds while joining in m.d.(general medicine) course and d.m. (nephrology) course after availing study leave, and having availed the benefits of not only undergoing p.g. degree and super speciality courses, but also updating his knowledge, he is bound to serve the people of tamil nadu and if he is leaving the job for better prospects, that is to settle in foreign country, he has to necessarily pay the bond amounts, which he agreed to pay and the same is to be treated as contractual obligation between the petitioner and the department. the learned additional advocate general also submitted that the petitioner was not even willing to give three months notice before sending resignation and the demanded amount was also paid by the petitioner without any reservation or objection and therefore he is estoped from claiming refund of the amount.6. i have considered the rival submissions of the learned senior counsel appearing for the petitioner as well as the learned additional advocate general appearing for the respondents.7. the point for consideration arising in this case is whether the petitioner is entitled to get refund of the amount already remitted while accepting the resignation submitted by the petitioner.8. while joining in d.m.(nephrology) course, the petitioner was given leave for two years on condition to serve for five years after completing the course. a bond was also executed by the petitioner. the relevant clause in the bond executed on 28.6.1996 reads as follows: "whereas the government have placed the obliger on deputation to attend the dm, nephrology course in the p.g.institute of medical education & research, chandigarh commencing from 1.7.96. and whereas for the better protection of the govt. the obliger has agreed to execute this bond with the sureties with such condition as hereunder written. and whereas the said sureties have agreed to execute this bond as sureties on behalf of the obliger. now the condition is that in the event of the obliger resigning or retiring from service without returning to duty after the expiry of termination of the period of training of fails to serve the government till 5 (five) years after completing course, after his return to duty or in the event of his removal or dismissal from service for any misconduct, conduct during the prescribed period, the obliger or the sureties or their heirs, executors and administrators shall forthwith pay to government on demand the said sum of rs.1,69,080 (rupees one lakh sixty nine thousand and eighty only) together with interest thereon from the date of demand at government rates for the time being in force on government loans. now upon the obliger or the sureties aforesaid making such payment, the above written obligation shall be void and be of no effect, otherwise it shall be and remain in full force and virtue." from the perusal of the bond it is evident that the petitioner executed the bond and one m.jayakumar signed as witness and one dr.r.vijayakumar, assistant professor of nephrology stood as surety. the said bond was executed before the issue of g.o.ms.no.8 p&ar; department dated 8.1.1997 and g.o.ms.no.61 p&ar; department dated 6.4.1999 extending the benefit of not executing the bond for undergoing 'higher studies'. the said government orders amending fundamental rules and tamil nadu study leave rules, 1965, have no retrospective effect. therefore the petitioner is bound to serve in the government for five years after passing the super speciality course (d.m).9. admittedly the petitioner has completed d.m.(nephrology) course and he served only for 1046 days instead of 1826 days after completing the course. for those 780 days in which petitioner having not served, he is bound to pay the amount proportionate to the number of days as mentioned in the bond. therefore the petitioner is bound to pay an amount of rs.72,245/- and a further sum of rs.2,494/- towards interest at the rate of 10% per annum as demanded.10. as regards the second category of demand i.e, for a sum of rs.3,99,744/- with interest, which comes to rs.4,13,553/-, the respondents cannot demand the said amount in terms of fr.11(6) as the government order permits availing leave as per g.o.ms.no.8 p&ar; department, dated 8.1.1997. the bond dated 15.11.2000 having been executed after 8.1.1997, is unenforceable as the f.r. and tamil nadu study leave rules, 1965 are amended from 8.1.1997. thus, the said demand is illegal and the amount paid has to be returned to the petitioner as he was compelled to pay the amount while accepting the resignation of the petitioner.11. insofar as the demand of rs.1,925/- is concerned, the learned senior counsel for the petitioner submitted that he is not pressing the said request for refund. the said submission is recorded.12. the demand of rs.49,288/- towards the amount of stipend drawn while undergoing m.d.(general medicine) course at stanley medical college and interest at the rate of 10% per annum from 11.8.2003 to 19.2.2004 is also justified as the amount is payable by the petitioner as per the bond executed earlier as he resigned from the post before completion of the bond period. similarly demanding a sum of rs.2,19,233/- towards expenses incurred by the state government for giving training to m.d.(general medicine) course in stanley medical college during 1992-1994 is also in terms of the bond condition as the said course was undergone by the petitioner with full pay and allowance.13. thus, the demand of rs.4,13,553/- alone is concerned, the petitioner being not liable to execute the bond in terms of the government orders, particularly rule 11(6) of the fundamental rules as amended, the amount paid by the petitioner is liable to be refunded by the respondents.14. in fine, the impugned order dated 10.10.2005 is set aside only to the above extend. the respondents are directed to refund a sum of rs.4,13,553/- to the petitioner within a period of four weeks from the date of receipt of copy of this order. the writ petition is partly allowed and disposed of accordingly. no costs.

Judgment:
1. The prayer in the writ petition is to quash the order dated 10.10.2005 passed by the first respondent and direct the respondents to refund the total amount of Rs.7,07,525/- collected from the petitioner towards service bonds, based on his representation dated 17.11.2004.

2. The brief facts necessary for disposal of the writ petition are as follows:

(i) The petitioner is a qualified Medical Practitioner, passed MBBS degree from the Madras Medical College in the year 1990. He joined as Assistant Surgeon in the Tamil Nadu Medical Services on 20.1.1992.

(ii) The petitioner appeared for All India Entrance Examination, conducted by the All India Institute of Medical Science, New Delhi, for Post Graduate course and he was selected and admitted to M.D.(General Medicine) in Stanley Medical College, Chennai and he underwent the course from 29.5.1992 to 31.3.1994. The petitioner after passing M.D.(General Medicine) course, was selected for the Super Speciality course in D.M.(Nephrology) in the Post Graduate Institute of Research, Chandigarh. The petitioner met the costs for undergoing the P.G. courses from his own funds.

(iii) The petitioner was granted extraordinary leave without pay and allowance to undergo D.M.(Nephrology) course from 1.7.1996 to 13.7.1998 and he also executed a bond on 28.6.1996 to the effect that he would pay a sum of Rs.1,69,080/- or a proportionate sum in case he fails to serve the Government of Tamil Nadu for a period of five years on completion of Super Speciality course, on account of resignation, retirement or in the event of removal or dismissal from service. The petitioner, after completing the D.M.(Nephrology) course, rejoined duty in Madras Medical College on 14.7.1998 and served for about three years.

(iv) The petitioner was further selected to undergo fellowship training in Transplantation Immunology from 10.2.2001 to 8.2.2003 at Presbyterian Hospital, New York, attached to the Cornell University. He was directed to execute a service bond on 15.11.2000 similar to the first bond with an undertaking to serve the Government for a period of three years or pay the sum specified. By G.O.Ms.No.330 Health and Family Welfare Department dated 1.3.2002, the Government extended the extraordinary leave without pay and allowance for one more year.

(v) According to the petitioner, the Tamil Nadu Study Leave Rules, 1965 and Fundamental Rules, particularly F.R.11A and Rule 17(3) of the Tamil Nadu Study Leave Rules, 1965 stipulate that a person is bound to execute a bond to serve the Government only for availing study leave, other than extraordinary leave, without pay and allowance. In G.O.Ms.No.8 P&AR; Department dated 8.1.1997 the Government permitted the Government Servants to go abroad to participate in Seminars, Conferences, Workshops, Refresher courses in service training and specialised training at their own costs by availing extraordinary leave without pay and allowances and such of those persons need not execute any bond. The said Government Order further states that the said concession would be applicable to past cases also. G.O.Ms.No.61 dated 6.4.1999 was issued to extend the benefits to higher studies.

(vi) Petitioner contends that he having availed the leaves without pay and allowances on both the occasions when he pursued higher studies, D.M. and Fellowship Training, he is entitled to get the benefits of the above said Government Orders. Therefore the bond executed by the petitioner dated 28.6.1996 and 15.11.2000 are unenforceable.

(vii) The petitioner after completion of the Training at the Medical College, New York, returned to India and rejoined duty on 8.3.2003 as Assistant Professor in the Department of Nephrology, Madras Medical College, pursuant to the order issued by the Director of Medical Education dated 7.3.2003.

(viii) Petitioner sent a representation on 31.3.2003 and pointed out the unenforceability of the bonds and requested to cancel the bonds. He was subsequently transferred to the Stanley Medical College as Assistant Professor, Department of Nephrology, on 3.7.2003. According to the petitioner, he submitted further representation on 30.7.2003 and requested to extend the benefits of G.O.Ms.Nos.8 and 61 to the first bond dated 28.6.1996.

(ix) As the petitioner had to be away from the country, he tendered his resignation on 3.9.2003 with a request to relieve him with effect from 11.8.2003. On 25.11.2003 a communication was received from the Department stating that he had worked only for 1046 days instead of 1826 days and therefore he would have to pay the proportionate bond amount of Rs.1,69,080/- for the balance period of 780 days and he was directed to remit a sum of Rs.72,245/- along with interest at the rate of 10% per annum from 11.8.2003.

(x) On 5.12.2003 an intimation was given to the third respondent stating that the petitioner's resignation had not been accepted and he had to return to duty by 10.12.2003 or to face disciplinary proceedings and also proceedings under the Revenue Recovery Act for recovery of the said amount.

(xi) On 15.12.2003 petitioner received another order directing him to remit the sum of Rs.3,99,744/- amounting to 24 months pay and allowance with 10% interest from 11.8.2003 to 14.12.2003 on the ground that the bond condition mentioned in service bond dated 15.11.2000 was not complied with. Another demand notice for a sum of Rs.1,925/- was issued on 17.2.2004 by stating that he had purportedly failed to serve the Government for the balance period of 780 days out of 1865 days after completion of M.D.(General Medicine) Course. The 4th demand notice was issued on 19.2.2004 directing the petitioner to pay a sum of Rs.49,288/- along with interest at 10% from 11.8.2003 to 19.2.2004 on the ground that he had drawn a stipend from 29.5.1992 to 31.3.1994 while undergoing course of M.D.(General Medicine) at Stanley Medical College. The 5th demand notice dated 14.4.2004 was issued demanding a sum of Rs.2,19,233/- towards expenses incurred by the Government for giving training to the petitioner in M.D.(General Medicine) course during the period from 1992 to 1994.

(xii) The petitioner further contended that the respondents having imposed a pre-condition to pay the said amounts to accept the letter of resignation, the petitioner was forced to pay a total amount of Rs.7,58,738/- claimed through the said five demand notices. According to the petitioner as he is not bound to pay the said amount and he submitted representations to refund the said amount. No action having been taken on the said representations, petitioner filed W.P.No.19725 of 2005 and this Court by order dated 18.6.2005 directed the first respondent to dispose of petitioner's representation dated 17.11.2004 within 12 weeks. Thereafter the impugned order dated 10.10.2005 was passed rejecting the request of the petitioner.

(xiii) The reasons stated in the impugned order are that from the date of joining in the Tamil Nadu Medical Service till the date of tendering resignation, petitioner spent maximum period only to undergo higher studies/specialised studies than rendering service to the people. While the petitioner requested to relieve him to undergo ISN Fellowship, he has given an assurance that he will not take any job in U.S.A. and will return back to the institution and accepting the said assurance, extraordinary leave was sanctioned without pay and allowances in relaxation of F.R.18(4) to undergo higher training as a special case. However, in breach of the said assurance the petitioner tendered resignation and left the institution, even without waiting for the expiry of three months notice period. Hence the representation seeking return of the bond amounts was rejected.

(xiv) The impugned order is challenged in this writ petition on the grounds that the said amount having been demanded and paid by mistake, the same cannot be retained by the Government; that the petitioner had not been paid any salary and allowances during the periods of undergoing D.M. Course and Fellowship training; that the Government orders having granted exemption from executing bond, the demand and acceptance of the bond as well as amounts from the petitioner is illegal; and that, before rejecting the representation petitioner was not given the opportunity of hearing and therefore the said order is passed in violation of the principles of natural justice.

3. The respondents have filed counter affidavit and denied the averments made in the affidavit. It is stated in the counter affidavit that deputation of the petitioner for training was granted on his executing bonds twice to serve the Government for the period of study leave or to pay the amount equivalent to two years pay and allowances together with interest. After completing the training he joined duty on 8.3.2003 and he submitted his resignation on 10.8.2003 with a request to accept his resignation from 11.8.2003. Before accepting the resignation one has to remit all contractual obligation amounts to the Government and three months notice is also mandatory before tendering the resignation. It is further stated in the counter affidavit that the petitioner was paid stipend i.e., pay and allowances and other benefits while he was permitted to undergo M.D.(General Medicine) course. The petitioner, though studied D.M.(Nephrology) at Chandigarh at his own cost, the said period was treated as study period and it could be counted for pension if he continued in service. He also executed a bond and it is not cancelled till date and therefore he has to fulfil the conditions contained in the bond. Similarly the ISN Fellowship at New York undergone by the petitioner, though with his own cost, the said period has also been treated as study period and it could also be counted for pension if he continued in service. Petitioner having executed the bond and the same having not been cancelled, he has to fulfil the conditions contained in the bond. The amount has been collected from the petitioner as per FR.11A and Rule 17 of the Tamil Nadu Study Leave Rules, 1965. The request made by the petitioner to refund the bond amounts was rejected considering the fact that he has agreed at the time of permitting him to undergo the studies, more particularly taking note of the conduct of the petitioner in not serving the patients of the state. The request made by the petitioner to cancel the bonds were also rejected. It is also stated in the counter affidavit that having remitted the amounts for accepting the resignation without any protest, he is not entitled to seek refund of the amounts paid so long as the acceptance of the resignation stands.

4. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the petitioner submitted that when the bonds themselves need not have been executed by the petitioner, merely because the same were executed, the same cannot be put against the petitioner to claim the amounts. The action of the respondents in demanding the amounts and the petitioner having been forced to remit the same, not refunding the amount paid is in violation of the Government Orders and therefore the petitioner is entitled to get refund of the amount as prayed in this writ petition.

5. Mr.P.Wilson, learned Additional Advocate General on the other hand submitted that the petitioner having executed the bonds while joining in M.D.(General Medicine) course and D.M. (Nephrology) course after availing study leave, and having availed the benefits of not only undergoing P.G. degree and Super Speciality courses, but also updating his knowledge, he is bound to serve the people of Tamil Nadu and if he is leaving the job for better prospects, that is to settle in foreign country, he has to necessarily pay the bond amounts, which he agreed to pay and the same is to be treated as contractual obligation between the petitioner and the department. The learned Additional Advocate General also submitted that the petitioner was not even willing to give three months notice before sending resignation and the demanded amount was also paid by the petitioner without any reservation or objection and therefore he is estoped from claiming refund of the amount.

6. I have considered the rival submissions of the learned Senior Counsel appearing for the petitioner as well as the learned Additional Advocate General appearing for the respondents.

7. The point for consideration arising in this case is whether the petitioner is entitled to get refund of the amount already remitted while accepting the resignation submitted by the petitioner.

8. While joining in D.M.(Nephrology) course, the petitioner was given leave for two years on condition to serve for five years after completing the course. A bond was also executed by the petitioner. The relevant clause in the bond executed on 28.6.1996 reads as follows: "WHEREAS the Government have placed the obliger on deputation to attend the DM, Nephrology course in the P.G.Institute of Medical Education & Research, Chandigarh commencing from 1.7.96. AND WHEREAS for the better protection of the Govt. the obliger has agreed to execute this bond with the sureties with such condition as hereunder written. AND WHEREAS the said sureties have agreed to execute this bond as sureties on behalf of the obliger. NOW the condition is that in the event of the obliger resigning or retiring from service without returning to duty after the expiry of termination of the period of training of fails to serve the Government till 5 (Five) years after completing course, after his return to duty or in the event of his removal or dismissal from service for any misconduct, conduct during the prescribed period, the obliger or the sureties or their heirs, executors and administrators shall forthwith pay to Government on demand the said sum of Rs.1,69,080 (Rupees One Lakh Sixty Nine Thousand and Eighty only) together with interest thereon from the date of demand at Government rates for the time being in force on Government loans. NOW upon the obliger or the sureties aforesaid making such payment, the above written obligation shall be void and be of no effect, otherwise it shall be and remain in full force and virtue." From the perusal of the bond it is evident that the petitioner executed the bond and one M.Jayakumar signed as witness and one Dr.R.Vijayakumar, Assistant Professor of Nephrology stood as surety. The said bond was executed before the issue of G.O.Ms.No.8 P&AR; Department dated 8.1.1997 and G.O.Ms.No.61 P&AR; Department dated 6.4.1999 extending the benefit of not executing the bond for undergoing 'Higher Studies'. The said Government Orders amending Fundamental Rules and Tamil Nadu Study Leave Rules, 1965, have no retrospective effect. Therefore the petitioner is bound to serve in the Government for five years after passing the Super Speciality course (D.M).

9. Admittedly the petitioner has completed D.M.(Nephrology) course and he served only for 1046 days instead of 1826 days after completing the course. For those 780 days in which petitioner having not served, he is bound to pay the amount proportionate to the number of days as mentioned in the bond. Therefore the petitioner is bound to pay an amount of Rs.72,245/- and a further sum of Rs.2,494/- towards interest at the rate of 10% per annum as demanded.

10. As regards the second category of demand i.e, for a sum of Rs.3,99,744/- with interest, which comes to Rs.4,13,553/-, the respondents cannot demand the said amount in terms of FR.11(6) as the Government Order permits availing leave as per G.O.Ms.No.8 P&AR; Department, dated 8.1.1997. The bond dated 15.11.2000 having been executed after 8.1.1997, is unenforceable as the F.R. and Tamil Nadu Study Leave Rules, 1965 are amended from 8.1.1997. Thus, the said demand is illegal and the amount paid has to be returned to the petitioner as he was compelled to pay the amount while accepting the resignation of the petitioner.

11. Insofar as the demand of Rs.1,925/- is concerned, the learned Senior Counsel for the petitioner submitted that he is not pressing the said request for refund. The said submission is recorded.

12. The demand of Rs.49,288/- towards the amount of stipend drawn while undergoing M.D.(General Medicine) course at Stanley Medical College and interest at the rate of 10% per annum from 11.8.2003 to 19.2.2004 is also justified as the amount is payable by the petitioner as per the bond executed earlier as he resigned from the post before completion of the bond period. Similarly demanding a sum of Rs.2,19,233/- towards expenses incurred by the State Government for giving training to M.D.(General Medicine) course in Stanley Medical College during 1992-1994 is also in terms of the bond condition as the said course was undergone by the petitioner with full pay and allowance.

13. Thus, the demand of Rs.4,13,553/- alone is concerned, the petitioner being not liable to execute the bond in terms of the Government Orders, particularly Rule 11(6) of the Fundamental Rules as amended, the amount paid by the petitioner is liable to be refunded by the respondents.

14. In fine, the impugned order dated 10.10.2005 is set aside only to the above extend. The respondents are directed to refund a sum of Rs.4,13,553/- to the petitioner within a period of four weeks from the date of receipt of copy of this order. The writ petition is partly allowed and disposed of accordingly. No costs.