Delhi High Court - Orders
National Medical Commission vs Sri Lakshmi Narayana Institute Of ... on 1 February, 2022
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 73/2022
NATIONAL MEDICAL COMMISSION ..... Appellant
Through: Mr. Vikas Singh, Senior Advocate
with Mr. T. Singhdev, Ms. Michelle
Biakthansangi Das & Mr. Bhanu
Gulati, Advocates.
versus
SRI LAKSHMI NARAYANA INSTITUTE OF
MEDICAL SCIENCES & ORS. ..... Respondents
Through: Mr. Maninder Singh & Mr. Saurabh
Kirpal, Senior Advocates with
Mr.Shiv Mangal Sharma &
Mr.Shashank Khurana, Advocates for
respondents No.1 & 2.
Mr. Anurag Ahluwalia, CGSC with
Mr. Danish Faraz Khan & Mr. Rishab
Narayan, Advocates for respondent
No.3/ UOI.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 01.02.2022 CAV 23/2022
1. Learned counsel for the caveator has put in appearance.
2. Accordingly, the caveat stands discharged.
C.M. Nos. 5346/2022, 5347/2022 & 5348/2022
3. Exemptions allowed, subject to all just exceptions.
4. The applications stand disposed of.
Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02LPA 73/2022 and C.M. No.5345/2022
5. Issue notice. Mr. Shiv Mangal Sharma appears and accepts notice on behalf of respondents No.1 & 2; and Mr. Anurag Ahluwalia appears and accepts notice on behalf of respondent No.3/ UOI.
6. The challenge in the present appeal is laid to the interim order dated 25.01.2022 passed by the learned Single Judge in W.P.(C.) No.1458/2022 & C.M. No. 4221/2022. After hearing counsels - by the detailed impugned order, the learned Single Judge has found merit in the petitioners‟ claim with regard to the rejection of the petitioners‟ application seeking increase in MBBS seats from 150 to 250 for the academic session 2021-22. The learned Single Judge has consequently directed the First Appellate Committee of the appellant to re-consider the matter in the light of the observations made in the impugned order, and pass a fresh order within four days from the date of the impugned order. It was further directed that in case appropriate orders are not passed by respondent No.2/ UOI within the time so granted, the respondent No.1 will then take it upon itself to pass an appropriate order so that these additional 100 seats can be included in the next round of counselling, which is likely to commence in the first week of February 2022 itself.
7. The submission of Mr. Vikas Singh, learned senior counsel for the appellant is that the respondent/ writ petitioner resorted to forum shopping. The respondent No.1 had earlier preferred a writ petition in relation to the same subject matter, namely, increase of MBBS seats at its college/ deemed university from 150 to 250, and the said relief had been declined by a learned Single Judge of the Madras High Court vide judgment dated Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 16.09.2021 passed in W.P. No.19005/2021. Therefore, it is argued that the respondent/ writ petitioner had chosen the forum of convenience as Madras High Court which had jurisdiction to deal with the grievance of the petitioner in relation to the subject matter in question. Having done so, it was not open to the respondent/ writ petitioner to approach this Court to assail the disapproval regarding increase of MBBS seats from 150 to 250 for the academic session 2021-22 vide the communication dated 15.11.2021 issued by the Medical Assessment & Rating Board (MARB) of the National Medical Commission.
8. In support of the submission that the respondent/ writ petitioner should have approached Madras High Court and conduct of the respondent/ writ petitioner tantamounts to forum shopping, he has placed reliance on the decision of the Supreme Court in Kamini Jaiswal Vs. Union of India & Another, (2018) 1 SCC 1506; and in particular paragraph 27 thereof. This decision extracts the relevant paragraphs from an earlier decision of the Supreme Court in Union of India Vs. Cipla Ltd., (2017) 5 SCC 262. Mr.Vikas Singh submits that the Division Bench of the Madras High Court had observed in its earlier decision rendered in W.P.(MD).No.17263/2020 titled K.R. Vasudevaa Vs. State of Tamil Nadu and Others decided on 30.07.2021, that:
"10.As on date, there are 23 Government medical colleges and 11 new medical colleges are to be added and the total number of medical seats available for admission in Tamil Nadu in Government medical colleges alone would be about 5300. Though there are already 23 Government medical colleges and 3 Government controlled medical colleges in existence with intake of 3650 students, 11 medical colleges are to be established and the number of seats to be added is 1650.Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02
Similarly, the number of private medical colleges including deemed universities are 25. Almost 16 to 20 private medical colleges are located in and around Chennai viz., Kancheepuram and Tiruvallur district. Once a medical college is established, it is not only for teaching the medical students but also for treating the people residing in that area. Crowding medical colleges in one area will not help the people at large. Therefore, the National Medical Commission has to see that the approval is granted only to the applicants who would establish medical colleges in the area where there is no medical college at all, thereby the treatment facilities in the unserved area would be improved. Therefore, this Court hopes that in future, the State Government as well as the National Medical Commission would not give approval for any medical college in and around Chennai or in any other city which has already got enough medical colleges like Pondicherry.
11 With the above directions, this Writ Petition is disposed of. Consequently, connected Miscellaneous Petition is also closed. No costs."
9. Mr. Vikas Singh has argued that in the light of the aforesaid decision of the Division Bench, the petitioner found it inconvenient to go to the Madras High Court since a fresh challenge to the disapproval of increase in seats, as aforesaid, would have been raised before the learned Single Judge of the Madras High Court, who would have been bound by the aforesaid observation of the Division Bench. With a view to evade the implication of the observations made by the Division Bench, as aforesaid, the writ petition was preferred by the petitioner before this Court, and not before the Madras High Court.
10. So far as the present appeal is concerned, we would like to hear the same finally after issuance of notice and grant of time to the respondents to address their submissions. In fact, the writ petition is still pending consideration before the learned Single Judge and the appellant have not yet Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 filed their counter-affidavit and it would, therefore, be premature at this stage to decide the present appeal finally when the writ petition is also pending consideration and pleadings are not yet complete.
11. So far as the interim application (being C.M. No.5345/2022) moved by the appellant to seek stay of the impugned order is concerned, we have heard the submissions both of Mr. Vikas Singh - which have been taken note of hereinabove, as well as Mr.Maninder Singh, learned senior counsel who appears for the respondent/ writ petitioner.
12. Mr. Maninder Singh submits that the charge of forum shopping is not made out against the writ petitioner for the reason that the challenge raised before the Madras High Court was in respect of a general circular made by the appellant herein to suspend inspection of medical colleges due to Covid. The case of individual disapproval of any particular medical college for increase of seats was not the subject matter of the said decision.
13. He has also pointed out that there are three different categories of cases for which separate statutory provisions exist, namely, for opening of an undergraduate medical college, increase in intake capacity in existing medical colleges, and the introduction of postgraduate and super-speciality courses in medical colleges. He submits that the writ petitioners‟ case is one of increase in intake capacity of the students in MBBS course.
14. He further submits that the assumed disadvantage being attributed to the writ petitioner by Mr. Vikas Singh is non-existent inasmuch, as, the appellants themselves did not consider the either the decision rendered by the learned Single Judge on 16.09.2021, or the observations made by the Division Bench in its decision dated 30.07.2021 as a stumbling block for conduct of inspection and grant of approval for increase in number of seats Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 for admission to the MBBS course. In this regard, he submits that several other medical colleges - which had similarly applied for increase in intake capacity, as well as the writ petitioner, were actually inspected repeatedly by the appellants and in the case of Satya Sai Medical College and Research Institute, the appellants have also granted approval for increase of undergraduate medical seats from 150 to 250 as late as on 15.01.2022. He submits that, in any event, the observations made by the Division Bench in its judgment dated 30.07.2021 cannot be considered as a binding direction to the appellant to stop granting approval for increase in seats. He submits that it is the obligation of the appellants to conduct inspection, and if the norms prescribed for opening of medical college, or for increase in seats, or for introduction of postgraduate courses, are found to have been met upon inspection, merely because there are large number of other similar institutions operating in the area, cannot be a reason to deny approval. Mr.Maninder Singh, therefore, submits that the respondent/ writ petitioner did not resort to forum shopping.
15. Mr. Maninder Singh submits that the counselling for the all-India seats takes place at Delhi and the decision with regard to the inclusion of the increased seats in the total seats matrix also takes place at Delhi and the appeal against the disapproval was also decided at Delhi.
16. He further submits that the respondent/ writ petitioner is a deemed university, and in that capacity, the respondent/ writ petitioner has to follow the All-India Counselling System and the allocation of seats in a deemed university is made by the Central Government, and the counselling started on 17.01.2022. He further submits that the cause of action for preferring earlier writ petition is entirely different from that on which the current writ Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 petition is premised. Mr. Singh has also placed reliance on several paragraphs of Cipla Ltd. (supra).
17. Having considered the submissions of learned senior counsels on either side, we are not inclined to stay the operation of the impugned order at this stage. It appears that the writ petition may not be hit on account of forum shopping, as alleged by the appellants, for the reason that the cause of action which the writ petitioners invoked by preferring the earlier writ petition before the Madras High Court - which led to decision dated 16.09.2021, is entirely different from the one raised in the present writ petition. In the said writ petition, there was no challenge to the disapproval for increase in the seats from 150 to 250, and the grievance raised in the earlier writ petition preferred before the Madras High Court related to the decision taken by the appellant‟s not to conduct inspection on account of Covid. After the decision dated 16.09.2021, much water has flown under the bridge. As a matter of fact, the appellants themselves have conducted inspection and on account of the observations made by the Division Bench in its judgment dated 30.07.2021 taken note of hereinabove, the communication disapproving increase in the seats has been issued to the writ petitioner. That communication has not disclosed any other reason for disapproval. The respondent‟s institution was repeatedly inspected and no deficiency was found during those inspections. Prima-facie, it appears that the disapproval is founded upon extraneous considerations which could not have been gone into. It also appears, prima-facie, that the observations made by the Division Bench in its decision dated 30.07.2021 cannot be taken as binding direction to the appellants not to grant approval for increase of medical seats in the undergraduate course. Even the appellants do not Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02 appear to have interpreted the aforesaid observations of the Division Bench as a binding direction, or prohibition against grant of increase in the number of medical seats for the undergraduate course. A reading of the decision in Cipla Ltd. (supra) shows that the allegation of forum shopping was rejected by the Supreme Court since in the proceedings before the Allahabad High Court, the challenge was to the show-cause notice which was not the subject matter of challenge before the other High Courts where Cipla has been raising its grievance with regard to pricing.
18. We, therefore, reject the application seeking stay of the operation of the impugned order. At the same time, we make it clear that the observations made by us in this order shall not come in the way of the learned Single Judge finally hearing the writ petition, or of the Division Bench hearing the present appeal.
19. List on 25.07.2022.
VIPIN SANGHI, J JASMEET SINGH, J FEBRUARY 01, 2022 B.S. Rohella Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.02.2022 16:14:02