Allahabad High Court
Glory Saji And 5 Others vs Union Of India And 9 Others on 29 January, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 25995 of 2018 Petitioner :- Glory Saji And 5 Others Respondent :- Union Of India And 9 Others Counsel for Petitioner :- Krishna Pratap Singh Kaushik Counsel for Respondent :- A.S.G.I.,Avanish Mishra,C.S.C.,Mahendra Pratap,Mohit Singh,Rijwan Ali Akhtar,Sanjay Kumar Om Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
Reply filed by Sri Saurabh Basu, learned counsel for the petitioners to the supplementary affidavit filed by the respondent no. 8 in the Court today is taken on record.
Heard learned counsel for the parties.
This writ petition has been filed by the petitioners with the following prayer :
"(i) A writ, order or direction in the nature of writ of mandamus commanding the respondent nos. 1, 2, 3, 4, 5, 6, 7 & 9 to immediately and forthwith make arrangements for the transfer of students/petitioners to medical colleges recognized by the State Government.
(ii) A writ, order or direction to the respondent no. 8 restraining him from forcing the students/petitioners from paying exorbitant fees including penalty in default of not having deposited the fee on day to day increasing basis from Rs. 500/- to Rs. 2000/- per day failure to deposit the same by 31st July, 2018.
(iii) A writ, order or direction to the respondent no. 8 restraining him from cancelling the registration of the students/petitioners and after the due date re-registration would be done only on the payment of Rs. 50,000/- in pursuance of letter issued by them dated 25.06.2018.
(iv) A writ, order or direction to the respondent nos. 1, 2, 3, 4, 5, 6, 7 & 9 to immediately and forthwith initiate penal proceedings against the respondent no. 8 including cancellation of the registration of the medical colleges owned by respondent no. 8.
(v) Any further writ, order or direction as the Hon'ble Court may deem fit and proper to secure the ends of justice.
(vi) An order awarding the cost of the petition to the petitioners."
The facts of the case may be culled out briefly as hereunder :
The petitioners were admitted in the college of respondent no. 8, Venkateshwara Institute of Medical Sciences (hereinafter referred to as the "college") to the M.B.B.B. course for the academic session 2016-17. In the year 2016-17, a total number of 106 students were admitted to the college, out of which 27 students were admitted in the college through counselling conducted by the respondent no. 3, The Director General Medical Education and Training, U.P. but the Medical Council of India refused to accord recognition to the remaining 79 students by its order dated 27.1.2017 which compelled the respondent no. 8 to file Misc. Bench No. 10310 of 2017 before Lucknow Bench of this Court, assailing the aforesaid order. The said writ petition was heard by a Division Bench of Lucknow Bench of this Court along with three other identical writ petitions and decided by a common judgment and order dated 15.06.2017 (Annexure-1 to the writ petition). By the said order, the impugned order dated 27.1.2017 passed by the Medical Council of India, New Delhi so far it pertained to the discharge of the 79 students admitted by the respondent no. 8 mentioned in the impugned order dated 27.1.2017 was quashed. The judgment and order dated 15.06.2017 was challenged by the Medical Council of India before the Hon'ble Supreme Court vide Special Leave to Appeal (C) No. 17624 of 2017 which was dismissed by the Hon'ble Supreme Court by order dated 4.8.2017 which have been brought on record as Annexure-2 to the writ petition.
Accordingly all the students admitted in the academic session 2016-17 were treated to be in the same category of the regularized students in the college. It is noteworthy that the respondent no. 3 had issued Essentiality Certificate dated 28.01.2014 addressed to the respondent no. 8 wherein in continuation of Essentiality Certificate dated 18.06.2013 certain terms and conditions were laid down which were required to be followed by the respondent no. 8 and the said government order contained a clear recital that in case the respondent no. 8 failed to create the necessary infrastructure for the medical college as per the norms fixed by the Medical Council of India and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the already admitted students in the college with the permission of the Central Government.
The petitioners' claim is that the course was not clinical in the 1st year and clinical onwards from 2nd year till the completion of the M.B.B.S. course which required certain mandatory infrastructure for imparting medical education by the Medical Council of India such as running hospital where patients are being treated which was never made available to the students and on account of which their education was stymied from the very beginning as such they requested the respondent no. 5 on several occasions to provide the necessary infrastructure for clinical and non-clinical part of their education but without any response. The respondent no. 5, Medical Council of India inspected the college and submitted it's inspection report on 28.12.2015, perusal whereof indicates that the respondent no. 8 was running medical college without the necessary competence for imparting crucial and vital education with grueling course curriculum to the petitioners of post graduate and doctors with the M.B.B.S. degree from a college with abysmally deplorable record.
The contents of the report dated 28.12.2015 are being reproduced herein below :
"1. Whereas the Shri Bankey Bihari Education & Welfare trust made application for establishment new medical college at Gajraula, Uttar Pradesh in the name and style of Venkateshwara Institute of Medical Science, Gajraula for the academic session 2016-17 to the Ministry. The Ministry forwarded the application to MCI for evaluation and making recommendation to the Ministry u/s 10A of IMC Act, 1956 for the academic session 2016-17.
2. Whereas the Medical council of India (MCI) conducted by the assessment of the college on 18th & 19th December, 2015 and the assessment report was considered by the Executive Committee of MCI in its meeting held on 28.12.2015 and following points were noted :
(i) Hospital was locked.
(ii) Deficiency of faculty is 98.46% as detailed in report.
(iii) Shortage of Residents in 100% as detailed in report.
(iv) Bed occupancy was zero % on day of assessment.
(v) OPD attendance was zero on day of assessment.
(vi) Teaching Beds: As wards were locked, they could not be verified.
(vii) Ancillary facilities could not be verfied as the wards were locked. There were NIL Major & Minor operations on day of assessment.
(viii) There was NIL Normal Delivery & NIL Cesarean Section on day of assessment.
(ix) Radiological & Laboratory investigations workload was NIL on day of assessment.
(x) Casualty: No doctors nor Nurses are posted. Separate casualty for O.G. is not available. Ventilators are not available.
(xi) O.T. : Only 3 O.Ts. are available against requirement of 4, One O.T. Contains 2 tables which is not as per norms.
(xii) There was NIL patient in ICCU or any ICU.
(xiii) Labour room was locked.
(xiv) Radiodiagnosis department: mobile & Static X-ray machines were not functional. Only 1 USG is available against requirement of 2.
(xv) Blood Bank is not functional.
(xvi) Central Photography Section: Staff & Equipment are not available.
(xvii) No staff and patients were available at Registration counter or in OPD. Only empty rooms were seen.
(xviii) MRD: it was available but locked.
(xix) No staff is available in pharmacy.
(xx) NIL Nurses are available against 175 requirement.
(xxi) Only 15 Paramedical & nursing staff are available against 100 required.
(xxii) Anatomy department: NIL cadavers are available. Cold storage for dead bodies is not available embalming room is not available. Only 84 lockers are available.
3. Whereas, based on the above, the MCI vide letter dated 31.12.2015 recommended to the Central Govt. not to issue Letter of Permission for establishment of New Medical College at Mathura. Uttar Pradesh by Shri Mohan Singh Shiksha Sansthan u/s 10A of the MCI Act, 1956 for the academic year 2016-17;
4. Whereas u/s 10A (4) of IMC, Act 1956, the Ministry afforded an opportunity on hearing the college before a personal hearing committee on 18.01.2016 and the committee recommended to accept the recommendation of MCI for disapproval;
5. Whereas the Ministry accepted the recommendation of MCI and disapproved the application of the college for establishment of new college for the academic session 2016-2017 vide letter dated 26.05.2016.
6. Whereas on Oversight Committee (OC) directive the Ministry obtained compliance dated 18.06.2016 from the college afresh and forwarded it to MCI vide letter dated 22.06.2016. MCI returned the compliances citing the various reasons. Ministry forwarded the repay of MCI to OC:
7. Whereas the OC vide its letter dated 29.08.2016 approve the scheme of establishment of new Medical College at Gajraula, Uttar Pradesh By Shri Bankey Bihari Education and Welfare Trust. Uttar Pradesh in name & style Venkateshwara Institute of Medical Science, Gajraula, J.P. Nagar Uttar Pradesh within an annual intake of 150 for the academic year 2016-17 on certain conditions.
8. Whereas the Central Government on the approval of the OC issued necessary Letter of Permission on 12.09.2016 to the Shri Bankey Bihari Education and Welfare Trust, Uttar Pradesh for establishment of new Medical College at Gajraula Uttar Pradesh with an annual intake of 150 students for the academic year 2016-17 with conditions imposed by the OC;
9. Whereas as per the conditions laid down in the Letter of Permission an assessment with regard to verification of compliance submitted by the college in the Ministry was conducted by the MCI on 11th & 12th November, 2016. A surprise inspection was also conducted by MCI on 9th & 10th December, 2016 by the Council Assessors;
10. Whereas, the assessment report (11th & 12th November, 2016 and 9th and 10th December, 2016) along with the letter dated 09.12.2016 received from the appointed team of the Council Assessors as well as letters dated 09.12.2016 of the college authorities were considered by the executive committee at its meeting held on 13.01.2017 and noted the following deficiencies;
...........The Executive Committee further noted that a surprise assessment of the college was carried out by the appointed team of the Council Assessors on 9th December, 2016 and vide letter dated 09.12.2016 the team of the Assessors have stated as under:-
...........The team of assessor reached the college at 10:00 a.m. on 09.12.2016.
We reached the Dean's office. The dean was present in his office. However, he left his chamber immediately and was not to be seen for next 15 min. where after he returned to inform us his refusal to allow us to conduct the MCI assessment today even after presenting MCI order to conduct the assessment. He stated that it was a holidary declared by their own university for Eid, which falls 5 days later. It was not national or State or local holiday. He also mentioned that there were no doctors in wards or OPD or Emergency as it was a holiday. When questioned again regarding the patients services can also stop on a holiday?-He had no answer.
He had no answer as to why the Dean and two or three possible officers were working on a holiday. If all the doctors were on a holiday.
We then asked him to give his refusal in writing. It took two hours to the Dean to hand over the letter. In the meantime, the assessors went on rounds of campus. There were no patients. There were no doctors in campus, Hostel rooms and wards. OPD had no patients or nurses to be seen. In all ICUs, there were no patients admitted. Casualty area and reception area-there were no patients. In laboratory, no patients for giving the samples. Only 10 to 12 cars were patient in the campus. No sign of a running hospital was seen in the entire hospital. Infrastructure looked highly inadequate. All beds were seen to be fresh. We, the assessors' team, wondered how an entire hospital service can take holiday as mentioned in the dean's reply since a hospital should run on a 24 x 7 basis for an entire year.
The way the Dean refused for the assessment quoting invalid excuses shown and confirms the non-functioning of the Hospital as well as Medical College/classes which area self-declared holiday from 08.12.2016 to 12.12.2016. The dates looked like tailored dates confirming with the assessment dates as and when the assessment occurred also the letter submitted to the MCI by the College on 08.12.2016 mentions holidays of 10th & 11th December of Saturday and Sunday respectively and Monday 12 for Eid. No mention is found of 9th December as claimed by the Dean in his letter.
At the flat end of the process another letter was submitted to us with some of the key words changed and we were pressurized to include this and replace the first letter. So we are submitting both the letter for your perusal"
The Executive Committee also perused the letter dated 09.12.2016 received from the Dean of Venkateshwara Institute of Medical Sciences, Gajroula.
11. Whereas, the MCI vide letter dated 26.12.2016 has informed and recommended to the Ministry as under:
In view of the above, the college has failed to abide by the undertaking it had given to the Central Government that there are no deficiencies as per the directions passed by the Supreme Court mandated oversight Committee and communicated vide Ministry of Health & F.W. letter dated 12.09.2016 (para 1(i)). The Executive Committee after due deliberation and discussion, has decided that the college has failed to comply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee and communicated vide Ministry of Health & F.W. Letter dated 12.09.2016 (in para 2(b)), the college should be debarred from admitting students in the above course for a period of two academic years i.e. 2017-18 & 2018-19 as even after giving an undertaking that they have fulfilled the entire infrastructure for establishment of new medical college at Gajaroula, Distt. Amroha, Uttar Pradesh by Shri venkateshwara University, Meerut (Trust name- Shri Bankey Bihari Educational & Welfare Trust) under Shri Venkateshwara University, Gajaroula, Amroha, the college was found to be growly deficient. It has also been decided by the Executive Committee that the Bank Guarantee furnished by the college in pursuance of the directives passed by the oversight Committee as well as GOI letter dated 12.09.2016 is liable to be encashed."
It appears that the respondent no. 5 wrote a letter to the respondent no. 1 and based upon the inspection report returned therein by the respondent no. 5, the respondent no. 1 passed an order on 10.8.2017 whereby the respondent no. 1 reiterated it's earlier decision dated 31.5.2017 to debar the college from admitting students for a period of two academic years i.e. 2017-2018 and 2018-2019 and furthermore authorized respondent no. 5 to encash the bank guarantee worth Rs. 2 crore. Copy of the order dated 10.08.2017 has been bought on record as Annexure-5 to the writ petition. Hence this writ petition.
Learned counsel appearing for the petitioners has submitted that despite having given several opportunities to the respondent no. 8 to remove the deficiency in the college, the respondent no. 8 has done nothing and since the students have been put to considerable distress and a very poor standard of education is being provided to them in the absence of the necessary infrastructure, respondent nos. 4, 5, 6, 7, 8 and 9 are under an obligation to make arrangement for transfer of the petitioners to any other medical college recognized by the State Government.
Sri Anurag Khanna, learned senior counsel appearing for the respondent no. 8 submitted that the respondent no. 8 had filed Writ Petition (Civil) No. 445 of 2017 before the Hon'ble Supreme Court seeking issuance of a direction for quashing the order dated 31.5.2017 debarring the petitioners from admitting the students in M.B.B.S. course for academic sessions 2017-18 and 2018-19 and authorizing the respondent no. 2, Medical Council of India not to encash the bank guarantee furnished by the petitioners to the Medical Council of India and further to issue a writ of mandamus directing the respondents to grant renewal of permission for academic year 2017-18 and to admit the students in the said academic sessions. He further submitted that in the aforesaid writ petition, an interim order was passed on 1.9.2017 whereby the Apex Court directed that the students who had been admitted in the college for the academic session 2016-17, shall continue their studies and the Medical Council of India shall send the inspecting team to the institution within a period of two months and after the report is filed, the Medical Council of India shall apprise the institution with regard to the deficiencies and give a date for removal of the same so that the institution would be in a position to do the needful and thereafter the necessary follow up action shall be done for the academic session 2018-19. The renewal application which was submitted for the academic session 2017-18 would be treated as application for the academic session 2018-19 and the bank guarantee which had been deposited shall not be encashed and be kept alive. He next submitted the Apex Court in it's interim order dated 1.9.2017 has categorically provided that the students who have been admitted in the institution for the academic session 2016-17, shall continue their studies which is the academic session in which the petitioners were admitted and the matter is still pending before the Hon'ble Supreme Court. In case the petitioners have any grievance, they may intervene in the matter before the Apex Court seeking necessary direction and the instant writ petition which has been filed by the petitioners primarily seeking relief for transfer of their admission from the respondent no. 8 to any other medical college, is not maintainable and is liable to be dismissed.
We have heard the learned counsel for the parties present and perused the material brought on record, there is no dispute about the fact that the petitioners who were admitted in the institution in the academic session 2016-17 are pursuing their study in the institution and it is also not in dispute that against the order dated 31.5.2017, the respondent no. 8 has filed Writ Petition (Civil) No. 445 of 2017 before the Hon'ble Supreme Court which is still pending and in which an interim order was passed by the Apex Court whereby the certain directions was issued, paragraphs 16, 17 and 18 of the order dated 1.9.2017 which are relevant for our purpose are being reproduced herein below :
"16. Having said that, we shall proceed to analyze what the clause precisely conveys. On a careful reading of the same, it is quite clear and unambiguous that the obligation of the MCI is to ensure that inspections are not to be carried out at least 2 days before and 2 days after an important religious and festival holidays declared by the Central/State Government. In the clause, the words which gain significance are "important religious and festival holidays". On 12th December, 2016, it was Milad-un-Nabi and it is the day of festival. The inspection was done on 9th December, 2016, which was a Friday. The amended clause of the notification state only covers 2 days before the 15 festival declared as a holiday by the Central/State Government and 2 days thereafter. In the case at hand, the inspection team had gone for inspection on 9th December, 2016, and they were deprived to carry out the inspection. It was not covered by the concept of two days of moratorium. In such a situation when the Institution does not allow the team of the MCI or the assessors of the MCI, it will be adding premium to deviancy. Conferment of this kind of privilege is absolutely unwarranted. Therefore, the directions sought for grant of renewal of Letter of Permission for the academic session 2017-2018 is not acceptable.
17. Though we have so held, yet we think it appropriate that the students who have been admitted in the Institution for the academic session 2016-2017, shall continue their studies. The MCI shall send the inspecting team to the Institution within a period of two months. After the report is filed, the MCI shall apprise the Institution with regard to the deficiencies and give a date for removal of the same so that the Institution would be in a position to do the needful. We may hasten to add that the inspection that will be carried out and the further follow up action shall be done for the academic session 2018-2019.
18. As we intend to appreciate the inspection report and the deficiencies and the action taken up thereon by the Institution, list the matter on 15th November, 2017. The renewal application that was submitted for the academic session 2017-2018 may be treated as the application for the academic session 2018-2019. The bank guarantee which has been deposited shall not be encashed and be kept alive."
In paragraph 17 of the order dated 1.9.2017, the Apex Court has clearly directed that the students who were admitted in the institution for the academic session 2016-17, shall continue their studies. Since the petitioners were admitted in the institution for the academic session 2016-17, they are covered by the aforesaid direction issued by the Apex Court.
Thus, in view of the above, we are of the view that the relief claimed by the petitioners in this writ petition cannot be granted by this Court.
Writ petition is dismissed.
However, it will be open to the petitioners to seek necessary directions from the Apex court, if so advised by filing intervening application in the Writ Petition (Civil) No. 445 of 2017.
Order Date :- 29.1.2020/SA