Uttarakhand High Court
Sri Guru Ram Rai Institute Of Medical And ... vs State Of Uttarakhand And Others on 24 August, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SPECIAL APPEAL NO. 506 OF 2017
Sri Guru Ram Rai Institute of Medical and Health Sciences College
(SGRRIM & HS) .......Appellant
Versus
State of Uttarakhand and others. ...........Respondents
Mr. Jitendra Chaudhary, Advocate for the appellant.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent nos. 1 & 2.
Mr. V.K. Kohli, Senior Advocate assisted by Mr. Parikshit Saini, Advocate for
respondent no. 3.
Mr. Shailendra Nauriyal, Advocate for respondent no. 4.
Dated: 24.08.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. Joseph, C.J. (Oral) Appellant is the writ petitioner. The writ petition was filed seeking the following reliefs:
"(i) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned decision no. 880/XXVIII(I)/2017-
27/2010 dated 13th July 2017 (Annexure No. 9) taken by the respondent no. 1 i.e. State Government, Medical Anubhag-1 along with the letter no. MCI-34(MC)/2014- MED/148627 dated 30-11-2016 (Annexure-6) issued by the Medical Council of India (Respondent No. 3) respectively.
(ii) Issue a writ, order or direction in the nature of mandamus and further be pleased to direct the respondent no. 1 i.e. State Government, Medical Anubhag-1 to the effect that they shall grant admission against total 150 MBBS Seats bifurcating the same as 125 seats under the management quota and rest 25 seats under state quota during counseling pertaining to NEET-UG-2017 Entrance Examination as per the essentiality certificate dated 23rd Feb.2013."
2. Briefly put, the case of the appellant appears to be as follows:
The appellant has established a self-financing medical college. The essentiality certificate for the college was given in the year 2006. The intake was 100 students per year. According to the appellant, in the case as originally set out in the writ petition, there was no seat-sharing agreement. Subsequently, in the year 2013, on the application of the appellant, a fresh essentiality certificate was 2 given for increasing the intake seats from 100 to 150. In the said essentiality certificate, a condition was stipulated that 25 seats out of 50 seats should be earmarked for the State. Therefore, in short, the case before the learned Single Judge was that there was no seat-
sharing agreement in respect of 150 seats, except the liability of the appellant to earmark 25 seats out of total 150 seats for the students nominated by the Government. It is while so that the Medical Council of India has communicated to the State Government by the order, which is impugned in the writ petition that the seat-sharing should be in the ratio of 50:50. In Annexure-6, it has been stated as follows:
"MEDICAL COUNCIL OF INDIA No. MCI-34(MC)/2014-Med./ 148627, 28 Dated: 30/11/16 The Health Secretary, Medical Education Health & F.W., Govt. of Uttaranchal, 4 Subhash Road, Dehradun-248001 (Uttaranchal) Sub: Admission of MBBS student at Shri Guru Ram Rai Institute of Medical & Health Sciences, Dehradun, Uttarakhand for the academic year 2014-15- Regarding.
Madam/Sir, Kindly refer to Council office letter No. MCI- 34(MC)/2014/163661, dated 04.03.2015 and subsequent reminders dated 01.05.2015, 07.07.2015, 08.01.2016, 23.02.2016, 12.03.2016 & 26.04.2016 requesting you to provide the Consensual Agreement between the State Govt. and the college authorities, regarding admission of MBBS students at Shri Guru Ram Rai Institute of Medical & Health Science, Dehradun, Uttarakhand for the academic year 2014-15.
The letter dated 03/05/2016 received from the Director, Directorate Medical Education, Uttarakhand in the above said matter was placed before the Monitoring Sub-Committee at its meeting held on 22/08/2016 and Committee decided as under:-
"It is astonishing that the DMER, Uttarakhand in one breathe saying that they are searching for MoU at Health Department as well as the Medical Education Section, Govt. of Uttarakhand and in the same breathe they have said they have not found. In the same breathe they are saying that there were no MoU signed between State Govenrment and the college authorities. The Executive Committee of the Council has already viewed it very seriously and the Council is not satisfied with the reply that they are in the process of making the new MoU on the priority basis. It is therefore, recommended that the admissions be made in the following ratio State Government quota 3 50%; Management Quota 35% and NRI seats 15% till the MoU is signed."
The Minutes of the Monitoring Sub-Committee dated 22/08/2016 was placed before the Executive Committee for consideration and approval at its meeting held on 10/10/2016 and the Committee decided as under:-
"Monitoring Committee has observed that "It is astonishing that the DMER, Uttarakhand inone breathe saying that they are searching for MoU at Health Department as well as the Medical Education Section, Govt. of Uttarakhand and in the same breathe they have said they have not found. In the same breathe they are saying that there were no MoU signed between the State Government and the college authorities. The Executive Committee of the Council has already viewed it very seriously and the Council is not satisfied with the reply that they are in the process of making the new MoU on the priority basis. It is therefore, recommended that the admissions be made in the following ratio State Government quota 50%; Management Quota 35% and NRI seats 15% till the MoU is signed."
The Executive Committee of the Council decided the entire matter be brought to the attention of Government of Uttarakhand through Secretary (Health and Medical Education)".
The minutes of the Executive Committee has been approved by the Hon'ble Supreme Court Mandated Oversight Committee on 18/11/2016.
You are therefore requested to kindly look into the matter and send the consensual agreement between the State Government and College authorities immediately.
Yours faithfully, (A.S. Dagar) Consultant"
3. The appellant also calls in question Annexure-9 dated 13th July, 2017, by which the appellant has been called upon to share the seats in the ratio of 50:50.
4. The learned Single Judge by the impugned decision held as follows:
"Mr. Jitendra Chaudhary, Advocate, present for the petitioner.
Mr. Paresh Tripathi, Chief Standing Counsel, present for the State/respondent Nos.1 & 2.
Mr. Parikshit Saini, Advocate, for respondent No.3.4
Mr. Shailendra Nauriyal, Advocate, present for respondent No.4.
Three weeks' time is granted to the respondents to file counter affidavit. Petitioner may file rejoinder affidavit within a period of three weeks thereafter.
List this matter on 19.09.2017 in the daily cause list.
Meanwhile, petitioner shall continue to give admission as per the directions given by the Medical Council of India vide its order dated 30.11.2016. Meaning thereby, out of the total number of seats allotted to the petitioner's college, admission in 50% of the seats shall be from the State quota, subject to the final orders of this Court.
No further order or relief shall be granted by this Court, subject to the averments made by the respondents in the counter affidavit."
5. We heard Mr. Jitendra Chaudhary, learned counsel for the appellant, Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand, and Mr. V.K. Kohli, learned Senior Counsel assisted by Mr. Parikshit Saini, learned counsel on behalf of the Medical Council of India.
6. During the course of the appeal, the appellant has proceeded to file a supplementary affidavit. In the supplementary affidavit, for the first time, the appellant has brought out certain facts which, according to the appellant, were not brought out earlier on the basis that the writ petition was drafted in haste. In short, the substance of the newly introduced allegations are that in the year 2006, admission to the entire 100 seats was made by the State. In the subsequent years also, the appellant has purported to give details of the seats, which were made available to the State, apparently, pursuant to the consensus in the matter, but it is the case of the appellant that in the years 2014-15, 2015-16, there has been no seat-sharing agreement. We thought that this did prima facie reflect on the conduct of the appellant, who is an applicant under Article 226 of the Constitution in not taking the Court into confidence about the facts, which prima facie appeared to us to be material.
57. When matter was taken up today, we stand informed that as a result of the counseling, already 67 students have been admitted. It be noted that under the newly amended Medical Council of India Regulations, the counseling is to be done by the State Authorities. It is also brought to our notice that the representative of the appellant is also a part of the counseling body. Out of 67 students, who have been admitted, it is not in dispute that 50 have been admitted in the State quota. Mr. Jitendra Chaudhary, learned counsel for the appellant would submit that those 50 students have given affidavits that their admission will be subject to the result of the litigation. Subsequently, pursuant to the further round of counseling, names of more students have been forwarded to the appellant Institution and there is also going to be mop up round in the admission. No doubt, it is the case of the appellant that there is no seat-sharing agreement and in terms of the law laid down by the Hon'ble Apex Court, it is the right of the self-financing institutions to admit the students in absence of any seat- sharing agreement. He would reiterate that the Management can only be called upon to fill up 25 seats as a result of the condition imposed in the essentiality certificate of the year 2013 and in respect of 125 seats, the appellant has absolute right to earmark the students, who are being sent as a result of the counseling under the MCI Regulations. In essence and in substance, the effort of the appellant appears to appropriate the admission towards the management quota so that the appellant can realize higher fees.
8. We would think that the interest of justice would be sub- served, if we dispose of the Appeal by directing that the appellant will be free to take affidavits from the students, whose names have been sent as a result of the counseling already done, as also, to direct that in the further round of the counseling, the State will annonce clearly that the admissions, if they are being made under the State quota, will be subject to the result of the litigation. Accordingly, we dispose of the Appeal as follows:
In regard to the students, whose names are already sent pursuant to the subsequent round of counseling, appellant will be free 6 to insist on affidavits from the students, in which they would make it clear that the admission will be subject to the result of the litigation. In the further round of counseling, which remains to be done, the Authorities will make it clear to the students, who are being allotted under the State quota that their admissions will be subject to the result of the litigation in this case.
9. We make it clear that the learned Single Judge will be free to dispose of the matter untrammeled by any observation, which we have made regarding the conduct of the appellant and it is for the learned Single Judge to decide finally as to what is to be destiny of the case having regard to the conduct of the appellant. We request the learned Single Judge to dispose of the writ petition at the earliest.
10. There is a case for Mr. V.K. Kohli, learned Senior Counsel for the Medical Council of India that actually there would be documents clearly indicating that there is a seat-sharing agreement in the ratio of 50:50. We leave it open to the parties, in the proceeding before the learned Single Judge, to insist on production of any relevant document. Needless to say, it is open to the parties, if they are so advised, to introduce further pleadings.
(Alok Singh, J.) (K.M. Joseph, C.J.)
24.08.2017 24.08.2017
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