Uttarakhand High Court
Dr. Jagat Narain Subharti Charitable ... vs Union Of India And Others on 7 October, 2015
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 546 of 2015
Dr. Jagat Narain Subharti
Charitable Trust .... Appellant
Versus
Union of India & others .... Respondents
Present: Mr. Shobhit Saharia, Advocate for the appellant.
Mr. P.S. Bisht, Standing Counsel for (Central Government)
Union of India/respondent no.1.
Mr. Parikshit Saini, Advocate for respondent no.2.
Mr. Pradeep Joshi, Standing Counsel for the State of
Uttarakhand/respondent no.3.
Mr. Neeraj Garg, Advocate for the intervener.
Coram : Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
JUDGMENT
Date: 7th October, 2015 K.M. Joseph, C.J. (Oral) Appellant is the writ petitioner. The prayers in the writ petition are as follows:
"(a) Issue a writ order or direction in nature of certiorari quashing the recommendation of the Respondent no.2 MCI dated 13.05.2015 to disapprove the scheme of the petitioner for the academic year 2015-16.
(b) Issue a writ order or direction in nature of certiorari quashing the letter of the respondent no.1 GOI dated 15.06.2015 to disapprove the scheme of the petitioner for the academic year 2015-16.
(c) Issue a writ order or direction in nature of mandamus commanding the respondent no.2 to conduct the compliance verification in inspection of the petitioner's College and forward its recommendations afresh to the respondent no.1.2
(d) Issue a writ order or direction in nature of mandamus commanding the respondents to appoint an impartial observer on its own or ask the respondent no.1 to appoint an independent observer who may be directed to supervise the compliance verification inspection conducted by the respondent no.2 or to submit his report separately to the respondent no.1 regarding the compliance verification.
(e) Issue a writ order or direction in nature of mandamus commanding the respondents to passing appropriate order on the basis of the recommendation of the respondent no.2 given after conduction of compliance verification inspection, the report of the independent observer appointed by this Hon'ble Court and hearing the petitioner under Section 10A(4) of IMC Act 1956, if so required, for the academic year 2015-16 within a specified time."
2. Briefly put, the case of the appellant is as follows:
Appellant is a Trust. It is desirous of setting up of a Medical College. Towards the same, it proposed a scheme on 30.08.2014 to the Government of India. The Government of India made it over to Medical Council of India (hereinafter referred to as MCI). On 11.11.2014, MCI acknowledged receipt of the scheme, which was made over to it by the Government of India.
On 12.11.2014, MCI sought certain papers, which were submitted by the appellant on 19.11.2014. They also seek support from the report of the Tehsildar, which was given in the meantime. In January, 2015, MCI conducted a surprise inspection. It appears that they found out certain deficiencies (20 in number). On 31.01.2015, they proposed to the Government of India that there is no need to grant permission. Thereafter, time was granted by MCI to cure the deficiencies noted during surprise inspection till 28.02.2015. On 03.03.2015, Government of India purported to propose action under Section 10A(4) of the Indian Medical Council Act, 1956 (hereinafter referred to as the Act). They 3 proposed to deny approval. Appellant immediately represented to the Government of India. According to the appellant, the time was not ripe for action under Section 10A(4) of the Act, inasmuch as, time was granted to the appellant to remove the deficiencies by the MCI and it is only ,after that is verified and it is found that the deficiencies have not been removed, it would be appropriate to decline approval under Section 10A(4). It is submitted that on 26.02.2015, appellant submitted the compliance report, namely, removal of the deficiencies pointed out in the surprise inspection by MCI. The Government of India, according to the appellant, accepted the written objection. Thereafter, on 30.04.2015, a team of the Medical Council, which was headed by Dr. Sanjay Bijway, proposed to make inspection to ascertain whether the deficiencies have been removed. Appellant took objection to the team conducting the inspection by pointing out that as regards the head of the team, namely, Dr. Sanjay Bijway, a sister concern of the appellant, has definite allegations against him and it was requested, therefore, that the team may be reconstituted with any other person and the facts may be verified. According to the appellant, it was not heeded to, and, thereafter, MCI made a report to the Government of India, in which 20 deficiencies, which were found during the surprise inspection was not the subject matter of the report and instead the MCI pointed out that certain portions of land claimed to be that of the appellant was not actually belonging to the Trust and there was objection received from certain others. This fact was not actually put to the notice of the appellant and an opportunity was not given to the appellant to disabuse MCI of its apprehension in this regard. What is more purporting to act on the report of MCI, by proceeding dated 15.06.2015, Government of India declined approval. It is this, which brought the appellant to the Court, ultimately, as it so transpired (according to the learned counsel for the appellant) that being so advised, initially the appellant had approached the Apex Court with a petition under 4 Article 32 of the Constitution of India and the Supreme Court ordered that it is a matter where it should approach the High Court and it is, accordingly, that the writ petition came to be filed on 15.09.2015 seeking the prayers, which we have already noted.
3. Learned counsel for the appellant has a case that before the Government of India passed an order dated 15.06.2015, no opportunity of hearing was given. This is contested by the learned counsel for the Government of India, who submits that opportunity was, in fact, afforded to the appellant.
4. The learned Single Judge took note of the fact that the appellant did not permit the team of MCI to carry out the inspection which they attempted to do to verify whether the deficiencies have been removed. Having prevented the MCI team from carrying out the inspection, it was not open to the appellant to seek relief as sought for and the learned Single Judge, however, directed that it will be open to the appellant to apply afresh for grant of recognition and permission to establish and run the Medical College with 150 students. It was further ordered that, if such a request is made, same would be considered by the MCI in accordance with law.
5. The learned Single Judge was also not inclined to direct reconstitution of a Committee and the MCI was at liberty to take appropriate action, if a request is made, it was further ordered.
6. The learned counsel for the appellant would reiterate the facts as stated above and he would further point out that in similar circumstances, in a case before the Delhi High Court, the Bench of the Delhi High Court directed fresh inspection by MCI 5 and further action thereafter. Against the judgment, writ petitioner therein approached the Hon'ble Apex Court and the Hon'ble Apex Court in Civil Appeal No. 7953 of 2015 passed the following order:-
"By a detailed order passed today we have allowed the appeal arising out of SLP(C) No. 25946/2015 and dismissed the appeal arising out of SLP© No. 26834/2015. The directions which are given in the Judgment read as under:
"We are satisfied that in the aforesaid circumstances there was no need to direct conducting of re-inspection by the Medical Council of India and for the Academic Year 2015-2016 direction could have been given by the High Court for grant of permission once the order of the Central Government was found to be contrary to law.
The offshoot of the aforesaid discussion would be to allow the appeal filed by the Appellant/Society and dismiss the appeal of the Medical Council of India. The Government of India is directed to pass appropriate orders granting permission to the appellant/Society in respect of the college in question for the Academic Year 2015-2016 within a period of two days, having regard to the fact that the last date for conducting the admission is 30th September, 2015. The College is also permitted to admit the students in accordance with law."
Since the typing of the judgment containing directions therein and signing may take a couple of days, the aforesaid portion of the order should be out today and parties would be given copy thereof so that the necessary directions be complied with by the authorities/parties concerned."
7. Learned counsel for the appellant would further bring to our notice that though it may be true that the time limit prescribed by the judgment of the Hon'ble Apex Court as regards the last date for admitting the students has already expired, the Court may bear in mind, the following order was passed by the Hon'ble Apex Court in Special Leave to Appeal (C) No(s). 17342 of 2015 :
6"It has been submitted that the matters involving similar issues have been placed before different Benches and therefore, in the interest of justice, we are of the view that all such matters should be placed before an appropriate Bench.
Looking at the urgency, the Registry shall place them before Hon'ble the Chief Justice of India so that appropriate orders can be passed as soon as possible.
Looking at the peculiar facts of the case, we direct that though status quo should be maintained, the petitioner shall carry out the inspection, as directed by the High Court, on or before 15th October, 2015, but the report of the inspection shall be kept in a sealed cover.
It would be open to the leaned counsel to make all submissions before the Court taking up this petition."
8. Per contra, learned counsel for MCI would submit that the period set out by the Hon'ble Supreme Court has expired. He would further submit that this is a case in a case where as found by the learned Single Judge, MCI was not permitted to carry out the inspection, so it is not in a position to verify whether 20 deficiencies, which were already pointed out in the surprise inspection have been removed or not. Without removing the deficiencies, certainly the appellant is not entitled to get any relief. He would, in fact, point out that the time limit for applying for 2016-2017 itself expired on 31.08.2015 and the only remedy for the appellant is to apply for 2017-2018 by applying before 31.08.2016.
9. Learned counsel for the appellant, in fact, initially purported to press relief nos.(a) to (c) but we must record that later on he pressed relief (d) also.
10. We have already noted the dates. The impugned orders of MCI and of the Government of India, the latter of which is dated 15.06.2015. May be it was because the appellant went to 7 the Hon'ble Apex Court and it was relegated back, but the fact of the matter is that the writ petition, from which the present appeal arises, came to be filed only in September, 2015. The order of the Hon'ble Supreme Court, which is produced before us, by which the inspection was permitted till October, 2015, appears to be an interim order and what is more passed in the special circumstances of the case. What are special facts before the Hon'ble Apex Court are not brought to our notice. The orders are interim orders. No doubt, learned counsel for the appellant would point out that the Hon'ble Apex Court is reconsidering the entire issue relating to the time limit as according to him, the fixation of time limit is being misused by the MCI by sitting over the file and thereby causing injustice.
11. We would think that for the year in question, noting the undeniable fact may be for the reason that the petitioner has objected, MCI team was disabled from carrying out the inspection. We are faced with this incontrovertible fact. Therefore, the question as to whether the deficiencies have been removed or not, has not yet been ascertained, even as of today. Therefore, at this juncture to venture to make an attempt to ensure to the appellant the right to make admissions may not be possible. Therefore, in the circumstances of this case, we affirm the judgment of learned Single Judge and the appeal will stands dismissed. No order as to costs.
12. A copy of this judgment be supplied today itself.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
07.10.2015 07.10.2015
P. Singh