Madras High Court
The Board Of Governors vs Shree Balaji Medical College & Hospital on 14 June, 2012
Bench: D.Murugesan, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:14.06.2012
CORAM
THE HONOURABLE MR. JUSTICE D.MURUGESAN
and
THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN
Writ Appeal No.1100 of 2012
The Board of Governors
In Super-session of Medical Council of India
rep. by its Joint Secretary,
Pocket No.14, Sector 8,
Dwarka, Phase-I, New Delhi-110 077. ... Appellant
vs
1.Shree Balaji Medical College & Hospital,
Constituent College of Bharath Institute of
Higher Education and Research
(Bharath University) (Deemed University
under Section 3 of U.G.C.Act, 1956),
No.7, Works Road, Chrompet,
Chennai-44, rep. by its Registrar,
Professor Dr.S.M.Rajendran.
2.The Union of India rep. by
The Secretary to Government,
Ministry of Health and Family Welfare,
New Delhi-110 011. ... Respondents
Prayer:-Writ Appeal filed under Clause 15 of Letter Patent against the order made in M.P.Nos.1 & 2 of 2012 in W.P.No.20451 of 2011, dated 07.06.2012.
For Appellant :Mr.R.Thiagarajan, S.C., for
M/s.V.P.Raman.
For Respondents :Mr.Maninder Singh, S.C. For
M/s.S.Subbiah
J U D G M E N T
(Judgment of the Court was delivered by Justice D.Murugesan.) The writ appeal is at the instance of the Board of Governors in Super-session of Medical Council of India, questioning the interim direction ordered in M.P.No.1/2011 and M.P.No.2/2012 in W.P.No.20451 of 2011.
2.The issue is with regard to the request of the first respondent Medical College and Hospital seeking increase in intake capacity of seats in M.B.B.S. Degree course from 100 to 250 for the year 2012-2013. By the impugned order, the learned Judge directed the Board of Governors in super-session of Medical Council of India [hereinafter referred to as 'Medical Council of India'] to make inspection of the first respondent College in terms of their application dated 15.11.2010 without insisting upon the production of Essentiality Certificate from the State Government on or before 15.06.2012. A further direction was issued to the statutory body to pass appropriate orders thereon on merits and in accordance with law, after giving an opportunity of being heard to the first respondent.
3.The relevant facts necessary for disposal of the writ appeal are as follows.
4.On the recommendation of the Medical Council of India, the first respondent was granted permission to start M.B.B.S. Degree course from 2003-2004 with an annual intake of 100 students. That permission was granted on 30.09.2003. On 15.11.2010, the first respondent sent a letter to the appellant requesting them to make necessary arrangements to inspect their institution and to issue the required Letter of Permission for increase of intake from 100 to 250 from the academic year 2011-2012. The application earlier submitted by the first respondent requesting the appellant to inspect their institution and to issue Letter of Permission for increase of intake from 100 to 150 was rejected on 30.06.2011 for non compliance of certain deficiencies pointed out by the Inspection Team deputed by the appellant. That order has not been questioned and the same is also not in dispute.
5.The application sent by the first respondent on 15.07.2010 seeking increase in intake capacity from 100 to 250 seats was rejected by the Medical Council of India by communication dated 27.04.2011. The said communication reads as under:-
"Sub:Increase of seats from 100 to 250 at Sree Balaji Medical College and Hospital, Chennai for the academic year 2011-2012.
Sir, With reference to your application dated 15/11/2010, on the subject noted above, I am directed to inform you that the application for increase of MBBS seats from 100 to 250 was considered by the Board of Governors and observed that the college is not eligible for increase of seats from 100 to 250, as the college has not fulfilled the qualifying criteria i.e. number of teaching beds not less than 1100 with the standing of not less than 10 years as prescribed in the regulations.
In view of the above, the Board of Governors decided to return the application as disapproved for increase of MBBS seats from 100 to 250 at Sree Balaji Medical College and Hospital, Chennai under Section 10A of the IMC Act, 1956 for the academic session 2011-2012."
6.From the above communication, it is seen that the request for increase of seats was not accepted on the ground that the first respondent/College had not fulfilled the eligibility criteria, viz., they did not possess 1100 teaching beds and with a standing of not less than ten years. The said order was questioned by the first respondent/College by filing W.P.No.20451 of 2011. The prayer in the writ petition reads as follows:-
"It is therefore prayed that this Hon'ble Court may be pleased to issue a Writ of Certiorarified Mandamus or any other order or direction or a Writ in the nature of Writ of Certiorarified Mandamus by calling for the records comprised in proceedings of the first respondent bearing No.MCI-37(1)/2011-MED/6326 dated 27.04.2011 and quash the same and consequently direct the first respondent to consider the application of the petitioner dated 15.11.2010, De-novo after giving an opportunity to the Petitioner to seek for enhancement of the annual intake of students in MBBS course conducted in Sree Balaji Medical College & Hospital Chennai from 100 seats to 250 seats for the academic year 2011-2012 and subsequent academic years."
7.The first respondent/College along with the writ petition filed a Miscellaneous Petition in M.P.No.1 of 2011 seeking an interim direction and the said prayer reads as under:-
"It is prayed that this Hon'ble Court may be pleased to pass an interim direction directing the first respondent or his men, agents, or servants or subordinates by appointing an inspecting committee to carry out an inspection with respect to the infrastructural and institutional facilities provided by Sree Balaji Medical College and Hospital for the purposes of increase the intake, 100 to 250 students in MBBS course for the academic year 2011-2012 and submit the same to the first respondent pending disposal of the above writ petition."
8.Though the appellant, the Board of Governors in Super-session of Medical Council of India, has returned the application sent by the first respondent for increase of seats, as disapproved on the grounds mentioned above, as per communication dated 27.04.2011, while opposing the writ petition, a new stand was taken by the Medical Council of India that the first respondent College was not entitled even to seek permission to increase the intake as it had not obtained the 'Essentiality Certificate' from the State Government. This stand of the Medical Council of India led the first respondent to file a memo seeking withdrawal of the writ petition. However, the said request did not find favour with the Court, which necessitated the first respondent to take out two applications, one seeking an amendment to the prayer and another for raising additional grounds. The first respondent also filed an interlocutory application in I.A.No.2/2012 with the following prayer:-
"To issue appropriate interim directions directing the 1st respondent to proceed with inspection of the infrastructural and instructional facilities in the petitioner Medical College for increase of intake from 100 to 250 from the academic year 2012-2013 without insisting upon the Essentiality Certificate from the State Government pending disposal of the writ petition and thus render justice."
9.A counter affidavit was also filed by the Medical Council of India in these applications. The direction petition filed by the petitioner therein along with the writ petition as well as the subsequent petitions for amendment and to raise additional grounds were taken up together and the impugned order was passed, against which the present writ appeal has been filed.
10.Mr.R.Thiagarajan, learned Senior Counsel appearing for the appellant, by placing reliance on the Medical Council of India Regulations, would submit that the first respondent/College did not have 1100 teaching beds with a standing of ten years, as it was established only in the year 2003 and therefore, the College is not eligible even to make a request for increase in intake. Secondly, he would submit that in any event, as per the Regulations, the first respondent College should have obtained 'Essentiality Certificate' and produced the same for processing the application. Thirdly, the learned Senior Counsel would submit that though the first respondent College had prayed only for a direction to the Medical Council of India to inspect the College, the learned Judge has issued a further direction to pass orders on merits on the application, which would be beyond the relief sought for in the miscellaneous petition. Further, the learned Senior Counsel would submit that in any event, by interim order, the Court has granted the main relief in the writ petition without a detailed adjudication on the first two questions. Moreover, the application filed by the first respondent college seeking an inspection came to be entertained urgently only on account of the false averment made by the Registrar of the College that the last date for submission of report after inspection for permission is 31.05.2012, whereas, as per the time schedule, the last date for forwarding the recommendation is 15th June, 2012 and the last date for grant of permission is 30.06.2012. According to the learned senior Counsel, the first respondent has not made out a prima facie case and the balance of convenience is also not in their favour, for the simple reason that the learned single Judge who considered the matter earlier on 11.01.2012 adjourned the writ petition so as to enable the college to file appropriate applications for amendment and for raising additional grounds, whereas they waited till the High Court was closed for summer vacation and filed those applications belatedly on 02.05.2012. The learned senior Counsel further contended that the earlier application for increase of intake from 100 to 150 was rejected by the appellant on the basis of the inspection report and this material fact though mentioned in the Counter affidavit filed on behalf of the appellant was not considered by the learned Judge. Accordingly, the learned senior counsel, prayed for setting aside the impugned order.
11.On the other hand, Mr.Maninder Singh, learned Senior Counsel appearing for the first respondent, by drawing our attention to the provisions of the Medical Council of India Regulations for grant of permission, would contend that the question of obtaining 'Essentiality Certificate' would arise only at the time when the College is newly established and permission is sought for the said purpose. Such Essentiality Certificate is not one of the requirements in the event the established College seeks permission for additional intake. The learned Senior Counsel would also submit that insofar as the requirement of 1100 teaching beds is concerned, the Regulation must be read in such a manner that the requirement of 1100 teaching beds is only in respect of the Hospital, and it has nothing to do with the date of commencement of the college. Though the first respondent College was established in 2003, the Hospital has been in existence much earlier, i.e., from 1989. If the Regulation is so understood, the requirement relating to 1100 teaching beds has been complied with by the college. The Medical Council of India has wrongly applied the Regulation by interpreting that there is a requirement of 1100 teaching beds in a Hospital, which is attached to the College, which in turn should be in existence for more than ten years. The learned Senior Counsel would further submit that in any case, the learned Judge has issued a direction keeping in mind the last date, viz., 15.06.2012 and the said direction issued on the basis of the prima facie case made out by the college does not call for interference and more so on account of the fact that no prejudice would be caused to the appellant. In support of the direction, the learned senior counsel has placed reliance on the Judgment of Delhi High Court in the case of Muzaffarnagar Medical College -vs- Board of Governors in Super-session of Medical Council of India (W.P.(C) No.203 of 2012). The learned Senior Counsel would submit that in the event inspection is not carried out, the first respondent would lose one year. According to the learned senior counsel, as per the scheme of Medical Council of India Regulations, an application made for additional intake in the year 2011-2012 should be considered to be valid till it reaches finality, i.e., for the subsequent years, viz., 2012-2013 and so on and totally for a period of 5 years. With the above arguments, the learned Senior Counsel for the first respondent would submit that the impugned order suffers no infirmity. The learned counsel further submitted that in fact, in obedience to the directions contained in the impugned order, inspection is being carried on and it would be completed today.
12.The learned Senior Counsel for the first respondent has made a grievance that the Medical Council of India should have been fair to mention to the notice of this Court with regard to the fact that the inspection is being carried on from 13th June onwards.
13.In response to the above, the learned senior counsel appearing for the appellant submitted that though the scheme contemplates an application for establishment of a new college as well as an application for additional intake, the application filed by the petitioner dated 15.11.2010 was returned on the grounds mentioned earlier and the same has not been represented. Therefore, there is no question of considering such a non existent application for the subsequent years. Though initially the writ petition was filed seeking a direction for additional intake only for the academic year 2011-2012, only by way of interim application, the relief had been sought for the academic year 2012-2013. Till such time the validity of the impugned order is finally adjudicated, the first respondent cannot claim any benefit of direction and that too by way of an interim measure. Insofar as the inspection is concerned, the learned Senior Counsel had submitted that in the communication itself it is clearly mentioned that inspection would be conducted in obedience to the direction given by the Court. Even before the date of inspection, the Standing counsel for the appellant made a mention before this Court for lunch motion on 12.06.2012. The writ appeal was included in the motion list on 13.06.2012. When the appeal came up for admission on 13.06.2012, the learned senior counsel for the college took adjournment and accordingly it is posted today. In the meantime, without prejudice to the contentions raised in the pending writ appeal, inspection commenced on 13.06.2012. The learned senior counsel further submitted that there would be no equity in favour of the college on account of inspection inasmuch as the order directing such inspection has already been challenged before this Court.
14.The learned senior counsel for the appellant and the college, on the basis of the above submissions, justified the respective position of the concerned parties in this intra-court appeal.
15.On the above factual background and the submissions, the only question to be considered in the writ appeal is, "as to whether the interim direction of the nature granted in the impugned order could be granted pending disposal of the writ petition, involving several contentious issues".
16.It is well settled that in the event, an interim order would amount to finally allowing the writ petition, the Court should avoid the grant of such interim directions. Equally in the event, if such directions are not granted and on account of such refusal serious prejudice would be caused to a party to the lis, it is not as if the Court cannot exercise its power. Ultimately, it is for the Court to consider the issue on the facts and circumstances of a given case.
17.The first respondent College submitted an application on 15.11.2010 seeking increase in intake from 100 to 250 seats. The said application was ultimately rejected on 27.04.2011 and the entire communication has been extracted in an earlier portion of the judgment. The application submitted prior to 15.11.2010 seeking increase in intake from 100 to 150 was rejected on 30.06.2011. It was only thereafter, the very writ petition was filed challenging the order dated 27.04.2011.
18.The eligibility criteria, as required by the Regulations and as notified by the Medical Council of India, dated 17.09.2010, reads as under:-
"(b)For annual intake capacity of 250 i.Number of teaching beds not less than 1100 with standing of not less than ten years.
ii.Bed occupancy:Average not less than 75% iii.The hospital must be unitary.
iv.OPD strength per day not less than 3000 Clause (b) Sub Section (i) of Paragraph No.3 requires, for annual intake capacity of 250, not less than 1100 teaching beds with standing of not less than ten years.
19.The contention of the learned Senior Counsel appearing for the first respondent is that the aforesaid two conditions should be read separately. A careful reading of the said clause, in our opinion, does not mean that the College can rely upon the compliance of teaching beds in a hospital started by them prior to the establishment of Medical College. Since the Medical College is seeking permission to impart education to 250 students, it should have not only 1100 teaching beds, but should have a standing of not less then ten years. The College cannot rely upon the requirement of 1100 teaching beds alone without satisfying the further requirement that it should have not less than 10 years of standing. The world "Teaching beds" clearly indicates that it has reference to the hospital established along with the college and not earlier in point of time. In any case, this issue requires detailed consideration on merits. We cannot express any definite opinion at this stage. Our finding on this issue is prima facie and tentative for the purpose of deciding the legality and correctness of the interim direction given by the learned single Judge.
20.As far as the issue with respect to 'Essentiality Certificate' is concerned, the Scheme should be read as a whole. Though it is contended by the learned Senior Counsel appearing for the first respondent/College that the condition relating to production of Eligibility Certificate from the State Government is not applicable to an institution which is already established, here again, it is a matter to be considered in detail. For the purpose of grant of interim order, we could see that the only grievance of the first respondent/ College is that the last date, viz., 15.06.2012 is nearing and if the inspection and other formalities are not completed within the said time, the College may lose the chance of getting permission for additional intake. The said submission was accepted by the learned single Judge resulting in granting an interim direction. The learned Judge has also relied upon an interim order passed by a learned single Judge of the Delhi High Court in Muzaffarnagar Medical College -vs- Board of Governors in Super-session of Medical Council of India (W.P.(C) No.203 of 2012), wherein a direction was issued for inspection as an interim measure.
21.Mr.R.Thiagarajan, learned Senior Counsel appearing for the appellant would submit that the interim direction given by the Delhi High Court should not have been considered by the learned Judge, in view of the fact that the writ petition itself was withdrawn by the petitioner therein on 02.05.2012, i.e., even before passing the impugned order by the learned single Judge in the subject case.
22.On the other hand, it is the contention of Mr.Manindar Singh, learned Senior Counsel appearing for the first respondent/ College that the withdrawal of writ petition by the petitioner before the Delhi High Court was on the ground that similar matters were pending before the Supreme Court and for that reason only, the said writ petition was not argued on merits.
23.Be that as it may, the interim direction cannot be considered to be a binding precedent, as interim directions are issued depending upon the facts of each case.
24.The Supreme Court in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694, indicated that interim order which does not finally and conclusively decide an issue cannot be a precedent. The relevant observation reads as under :-
"21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."
24.Though the first respondent entertains a grievance on account of the failure on the part of the appellant to conduct inspection, such grievance is not justifiable on the facts and circumstances of the case for more than one reason.
26.Firstly, the application dated 15.11.2010 for increase of seats from 100 to 250 was returned on 27.04.2011. Even assuming that the application for the year 2011-12 will hold good for the subsequent years in view of the regulations describing the application as a scheme, still the appellant cannot be made responsible for the inaction on the part of the college in not re-submitting the application along with a compliance report.
27.It is also a matter of record that in the meantime, the application submitted earlier by the college for increase of intake from 100 to 150 was processed by the appellant by deputing an inspection team. The Assessors inspected the college, noted down the deficiencies and submitted a detailed report to the appellant. The application was returned on the basis of the inspection report on 05.05.2011, granting two weeks time to the college either to submit their reply or to report compliance. There was no action on the part of the college to rectify the defects pointed out by the Assessors in the report. This made the appellant to reject the application for increase of intake from 100 to 150 as per order dated 30.06.2011. The said order remain unchallenged. The order impugned in the present writ petition was earlier in point of time. When it is made out that the first respondent has no institutional or infrastructural facilities even to increase the intake from 100 to 150, there is no question of increasing the intake from 100 to 250, as a matter of course. In such circumstances, the first respondent was not justified in making a prayer for an interim direction to inspect the institution during the academic year 2012 13.
28.Secondly, the order impugned in the writ petition was passed as early as on 27.04.2011. The writ petition came to be filed some time during September, 2011 only. The petitioner should have been vigilant to approach the Court immediately after the rejection of application. The learned single Judge permitted the appellant as per order dated 11.01.2012 to amend the prayer, by raising additional grounds. But the first respondent has taken time till May 2012 to raise additional grounds and to file an application seeking an interim direction. The learned Judge appears to have not considered the substantial question raised by the appellant with regard to the ineligibility of the first respondent even to make an application for increase in intake.
29.In our opinion, the two questions raised in the writ petition and the writ appeal regarding the necessity to produce essentiality certificate by an existing institution for increase of intake and the fulfilment of eligibility criteria in respect of 1100 teaching beds with the standing of not less than ten years requires serious consideration on merits, and pending decision of such contentious issues, the impugned interim direction of this nature would amount to granting the very relief prayed for in the writ petition. The impugned order would be intact on the one hand and there shall be a direction to the appellant for inspection and to dispose of the matter on the other hand.
30.The Supreme Court in Union of India v. Modiluft Ltd., (2003) 6 SCC 65, having noticed that the High Court has granted the relief by way of interim order, which could not have been done at the interim stage, set aside the order and observed as follows :-
16. ... Be that as it may, even accepting the argument of the respondent, it is to be noticed that even an NOC from the Customs Authorities can be directed to be issued by the High Court only after it comes to the conclusion that the amount as determined by it has been paid by the respondent and not by an interim order, otherwise it would amount to the granting of a final relief in favour of the respondent who has suffered adverse orders from the authorities below, even before the writ petition is finally decided, and in the event of the ultimate dismissal of the writ petition the respondent would gain an undue advantage in spite of its default and might even give rise to other questions in equity including rights of the third party.
17. Seen from any angle, we think the High Court has erred in granting the impugned relief to the respondent which in our opinion is in the nature of a final relief which on facts and circumstances of this case, without deciding the issues involved in the writ petition, could not have been granted. "
31.The Supreme Court in State of U.P. v. Ram Sukhi Devi, (2005) 9 SCC 733, deprecated the practice of granting interim orders which would have the effect of allowing the very writ petition. The relevant observation reads as follows :-
"8.To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the government order dated 26-10-1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable government order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case having been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. "
32.Most recently in Secretary, UPSC & Anr. vs. S.Krishna Chaitanya, 2011 (8) Scale 415, the Supreme Court reiterated the legal position that interim order should not be of such a nature that by virtue of which a writ petition is finally allowed.
The Supreme Court said :-
27.We may add here that this Court has observed time and again that an interim order should not be of such a nature that by virtue of which a petition or an application, as the case may be, is finally allowed or granted even at an interim stage. We reiterate that normally at an interlocutory stage no such relief should be granted that by virtue of which the final relief, which is asked for and is available at the disposal of the matter is granted. We, however, find that very often courts are becoming more sympathetic to the students and by interim orders authorities are directed to permit the students to take an examination without ascertaining whether the concerned candidate had a right to take the examination. For any special reason in an exceptional case, if such a direction is given, the court must dispose of the case finally on merits before declaration of the result. In the instant case, we have found that the respondent not only took the preliminary examination but also took the main examination and also appeared for the interview by virtue of interim orders though he had no right to take any of the examinations. In our opinion, grant of such interim orders should be avoided as they not only increase work of the institution which conducts examination but also give false hope to the candidates approaching the court."
33.The first respondent wanted the appellant to inspect the college once again notwithstanding the fact that the earlier application for increase of intake from 100 to 150 itself was rejected on the basis of the report submitted by the inspection team. The application submitted on 15.11.2010 has already been rejected and this made the first respondent to file the writ petition. Therefore, before granting an order of interim direction to inspect the college once again and to pass appropriate orders on merits, the writ Court should have considered the basic fact as to whether there was a complete and valid application pending before the appellant.
34.The Supreme Court in Dental Council of India v. S.R.M. Institute of Science & Technology, (2004) 9 SCC 676, observed that a statutory body cannot be directed to inspect an educational institution on the basis of an incomplete application.
The Supreme Court said :-
"10.In this case, the High Court made an interim order to complete the processing of the application including inspection even in the absence of the permission or essentiality certificate from the State Government in terms of the Regulations framed by the Dental Council of India. The process of the courts or the process of law should not be allowed to subvert the law. In cases of recognition of dental colleges or starting of higher courses, this Court has in several cases including Islamic Academy of Education v. State of Karnataka, State of Maharashtra v. Indian Medical Assn. etc. held that they are of mandatory character and have got to be complied with. When that is the position in law, the High Court ought not to have made an interim order to process the application even in the absence of the permission or essentiality certificate because the application will not be complete without being accompanied by permission or essentiality certificate by the State Government along with certain other documents. An incomplete application cannot be processed either by the Central Government or the Dental Council."
35.For the above reasons, we are of the considered view that the interim direction, which is impugned in the writ appeal, cannot be sustained and is liable to be set aside. Accordingly, the same is set aside.
36.We are informed that Government of India has approved one time extension of deadline for issue of letter of permission for undergraduate course from 15.06.2012 to 30.06.2012. We only request the learned Judge, who is dealing with the writ petition as per roaster, to take up the writ petition and dispose of the same as expeditiously as possible. The first respondent is also at liberty to make a mention before the learned Single Judge dealing with the subject for expeditious disposal.
37.In the result, the impugned order dated 07.06.2012 is set aside. The miscellaneous petition in M.P.No.1/2012 and 2/2012 are dismissed. The writ appeal is allowed accordingly.
(D.M.,J.) (K.K.S.,J.)
14.06.2012
Index :Yes
Website :Yes
bs/tar
To
1.Shree Balaji Medical College & Hospital,
Constituent College of Bharath Institute of
Higher Education and Research
(Bharath University) (Deemed University
under Section 3 of U.G.C.Act, 1956),
No.7, Works Road, Chrompet,
Chennai-44, rep. by its Registrar,
Professor Dr.S.M.Rajendran.
2.The Secretary to Government,
Ministry of Health and Family Welfare,
New Delhi-110 011.
D.MURUGESAN,J.
and
K.K.SASIDHARAN,J.
(tar)
W.A.No.1100 of 2012
Dated:14.06.2012