Delhi High Court
Surendra Hemant Education & Social ... vs Union Of India & Anr. on 3 September, 2012
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 3rd September, 2012
+ LPA No.605/2012
% SURENDRA HEMANT EDUCATION & SOCIAL
WELFARE SOCIETY, PATNA ..... Appellant
Through: Mr. Pawan Upadhyay with Ms.
Anisha Upadhyay & Mr. Ankit
Sibbal, Advs.
Versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. B.V. Niren, Adv. for R-1.
Mr. Ashish Kumar, Adv. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra-court appeal impugns the order dated 16.05.2012 of the learned Single Judge dismissing W.P.(C) No.4005/2010 preferred by the appellant. The said writ petition was preferred seeking mandamus to grant recognition to the Surendra Medical College and Hospital set up by the appellant at Shiwala Mor, Khagaul, Patna.
LPA No.605/2012 Page 1 of 6
2. It was the case of the appellant in the writ petition that it had first approached the respondent Medical Council of India (MCI) for permission to establish a Medical College vide Communication dated 10.08.2005, but was inter alia asked to obtain affiliation with a University and to remove certain other deficiencies, as well as to obtain Essentiality Certificate from the State Government; that an Essentiality Certificate dated 03.10.2006 was issued in its favour by the State Government and it also obtained consent of affiliation from a University; that since it was already running a hospital, Essentiality Certificate was a mere formality; that however it was still not granted the permission, compelling it to prefer a writ petition under Article 32 of the Constitution of India to the Supreme Court; that the said writ petition was however disposed of on 11.02.2010 with leave to the petitioner to approach the High Court; that it is thereafter that the writ petition from which this appeal arises was filed in this Court.
3. Learned Single Judge disposed of the writ petition without adjudicating on the correctness of the refusal of the respondent MCI to grant permission to the appellant for setting up a Medical College LPA No.605/2012 Page 2 of 6 observing that the appellant having admittedly not applied to the respondent MCI for permission after the year 2007-08 and having also not obtained Essentiality Certificate and affiliation, no relief in the writ petition could be granted. Liberty has however been given to the appellant to submit a fresh application to the respondent MCI for permission in accordance with prevalent norms.
4. Finding that a period of nearly six years has elapsed since the appellant claims to have applied for permission to establish a Medical College and being further of the opinion that after such a long lapse of time, no purpose would be served in judging the justifiability of the reasons which prevailed with the respondent MCI nearly six years ago to refuse such permission inasmuch as it will have to be seen as to whether the appellant today fulfills all the requisites for a Medical College, we at the outset enquired from the counsel for the appellant as to why the appellant should not make a fresh application for permission.
5. The counsel for the appellant replies that the permission for that year is relevant for the sake of the students admitted by the appellant in the year LPA No.605/2012 Page 3 of 6 2007-08. However when we enquired from the counsel for the appellant as to how the appellant, which has not been granted any permission till now to establish a Medical College, could have admitted students, the counsel had no answer.
6. We are of the opinion that the possibility of the ground realities having changed in the last six years cannot be ruled out and the infrastructure earlier available cannot be presumed to be there today also. We are therefore in agreement with the learned Single Judge that the petition has become infructuous and the remedy of the appellant is to apply afresh.
7. Faced therewith the counsel for the appellant has contended that the respondent MCI is compelling the appellant to even obtain the Essentiality Certificate afresh from the State Government, when the same is not required to be obtained afresh each year while making application for permission for successive years.
8. We however find the learned Single Judge to have, in the impugned LPA No.605/2012 Page 4 of 6 order, recorded the contention of the respondent MCI to the effect that while prior to the year 2002, Essentiality Certificate was required to be obtained by the applicant from the State Government and to be submitted by the applicant to the MCI but after the year 2010, the State Government is required to submit the Essentiality Certificate directly to the MCI; that the application for permission of the appellant herein was not accompanied with any such Essentiality Certificate. The impugned judgment further records the contention of the counsel for the appellant that though it had approached the State of Bihar for issuance of Essentiality Certificate but the same was not issued.
9. Today however, the counsel for the appellant has drawn our attention to the letter dated 18.11.2003 of the respondent MCI to the SRI University with which the appellant was then intending affiliation. The said letter records that the Chief Secretary, Government of Bihar had vide letter No.108/MCI.(Conf)/2003.Med dated November 12, 2003 given consent for the issuance of NOC. The counsel for the appellant states that the same is an admission by the respondent MCI of the State Government LPA No.605/2012 Page 5 of 6 having issued the Essentiality Certificate.
10. We, however, do not have before us the said letter dated 12.11.2003 of the State Government. In the absence thereof, all that can be observed while dismissing this appeal is that in case the appellant had earlier been issued Essentiality Certificate, the appellant, while making an application now to the MCI shall not be required to obtain the Essentiality Certificate again.
No costs.
RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE SEPTEMBER 03, 2012 'gsr' LPA No.605/2012 Page 6 of 6