Madras High Court
Hari Prasad vs / on 22 December, 2017
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.12.2017 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.25215, 26085, 26177, 26556, 28262, 28374 & 28444 of 2017 and W.M.P.Nos.26659, 26660, 32890, 27705, 27706, 27829, 27830, 28267, 28268, 31555, 30377, 30472, 30473, 30552, 30553 of 2017 W.P.No.25215/2017 1.Hari Prasad 2.Chakravarthy.G 3.Keerthi Kailash.K 4.G.Powmitha 5.M.Ramya 6.S.Saran 7.Shubash.R 8.D.Jeneesree 9.A.Mithun Sai Sundar 10.U.Janani Vignitha 11.M.S.Janasruthy 12.V.Sindhiya 13.R.G.Charumitha 14.M.Govindarasu 15.S.Lokanand 16.R.Kaviya 17.S.K.Janani ...Petitioners /versus/ 1.The Health Secretary, Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, New Delhi 11. 2.The Secretary to Government, Health and Family Welfare, Government of Tamil Nadu, St. George Fort, Chennai 9. 3.The Director of Medical Education, Government of Tamil Nadu, E.V.R.Road, Kilpauk, Chennai 10. 4.The Secretary, Medical Council of India, Pocket-14, Sector-8 Dwaraka, New Delhi. 5.The Registrar, Tamil Nadu Dr.M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai 600 032. 6.Annai Medical College and Hospital Pennalur, Sriperumbudur, Chennai 602 117. 7.S.Meganathan 8.R.Vijayakumar 9.Central Bank of India, Represented by its Manager, Asset Recovery Branch, 48/49, Montieth Road, Egmore, Chennai-8. 10.Bank of India, Represented by its Manager, MJD Corporate Branch, 4th Floor, Tarapore Towers, 826, Anna Salai, Chennai 2. (R7 to R10 suo motu impleaded) 11.The Chairman, Bar Council of India, New Delhi. 12.The Chairman , Bar Council of Tamil Nadu and Puducherry, Chennai. 13.Ministry of Law and Justice , Government of India, New Delhi. 14.The Law Secretary , Government of Tamil Nadu Fort St. George, Chennai. 15.The Director General of Police, State of Tamil Nadu, Mylapore, Chennai. 16.The Inspector General of Police (Intelligent), Chennai. 17.The Commissioner of Police, Chennai. 18.The Superintendent of Police, Kancheepuram district. 19.The Superintendent of Police, Thiruvallur District. (R11 to R19 suo motu impleaded as per order dated 10.10.2017 in WP.Nos.25215, 26085, 26177 and 26556/2017) 20.G.Jayaraman 21.J.Jayalakshmi 22.J.Nirmala 23.J.Kumaran (R20 to R23 suo motu impleaded as per order dated 24.10.2017 in WP.Nos.25215, 26085, 26177 and 26556/2017) ...Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the 2nd respondent to take over the responsibility of the students already admitted in the 6th respondent college including the petitioners herein with the permission of the 1st respondent by transferring them to the colleges run by the 2nd respondent. For Petitioners : Mr.R.Sirajudin, Senior Counsel for Mr.H.Rajasekar For Respondents : Mr.Rabu Manohar, CGSC, for R1 & R13 Mr.Vijay Narayan, Advocate General asst by Mr.T.M.Pappiah, Spl.G.P, for R2, R3, R14, R15 to R19 Mr.V.P.Raman, Standing Counsel for R4 Mr.P.R.Gopinathan, Standing Counsel for R5 Mr.R.Singaravelan, Senior Counsel for Mr.S.Pushpakaran, for R6, R20 to R23 Mr.N.Ramakrishnan, for M/s.Waron & Sairam, for R7 & R8 Mr.N.V.Srinivasan, for M/s.NVS Associates, for R9 & R10 Mr.S.Prabakaran, Senior Counsel, for R11 Mr.R.Singaravelan, Senior Counsel for R12 COMMON ORDER
The role of doctors have been recognized 2000 years ago by ancient tamils and one such evidence is found in Immortal Thirukkural written by Saint Thiruvalluvar.
neha;eho neha;Kjy; eho mJjzpf;Fk;
tha;eho tha;g;gr; bray; Disease, its cause, what may abate the ill:
Let leech examine these, then use his skill.
2.The medical experts should be in a position to diagnose the disease and its cause and to treat the root which causes the disease. When such is the importance of doctors, naturally and definitely the role of doctors in the modern life to treat fellow human beings is very essential. For that, eminent doctors have to be produced and without necessary infrastructures, it is not possible.
3.Sorrow, Suffering, Pain, Distress, Mental Agony, Uncertainty of future being suffered by the petitioner students is not at their invitation. For no fault of them, the innocent medical students are standing before this Court instead of learning in the Medical College. If they are not allowed to learn, when they are supposed to learn during the course, in future, it will definitely have an adverse impact on the Health Service. Various stakeholders are responsible for this predicament faced by the students.
4.The Medical College students, who are the petitioners herein could not attend classes from first week of October, 2017 onwards as the Medical Council of India barred admissions to 6th respondent Medical College Hospital. The petitioners were admitted in the 6th respondent College, both under the State Quota as well as Management Quota during the year 2016-2017 in MBBS course. They underwent the I year of the course and wrote the examination and almost all the students, except a few, successfully cleared all the papers. When the classes were to commence for the second year, the Government of India, by virtue of order dated 31.05.2017 declined to confirm the conditional letter of permission granted to the 6th respondent Medical College and debarred the College from admitting the students for the next academic session 2017-2018 and 2018-2019 and further directed the Medical Council of India to encash the Bank Guarantee of Rs. 2 crores offered by the 6th respondent Medical College.
5.According to the petitioners, there is a dispute between the erstwhile trustees and the new trustees with regard to the administration and a civil suit in C.S. No. 417/2017 is pending before this Court. The Central Bank of India and Bank of India had advanced loans to the tune of Rs.86 crores and Rs.60 crores and the account of the Trust, which runs the College, has been declared as NPA and symbolic possession of the land and building has been taken and proceedings under the SARFAESI Act have been initiated.
6.The members of Rajalakshmi Group, who are the new trustees sent an SMS to the students asking them not to pay second year fees whereas the trustees belonging to Devi Karumariamman Educational Trust/the founder trustees are pressing for payment of fees. The Management of the 6th respondent College does not have funds even to meet the obligation of the Bank and to appoint necessary faculty members and provide facilities. The deficiencies pointed out by the Medical Council of India have not been rectified. In the absence of any faculty, the necessary medical equipments, particularly, absence of patients, do not allow the students to have their medical education properly. Unless the students are exposed to clinical training, which they can acquire only while treating the patients, which is absolutely wanting in the 6th respondent College, there is no use in continuing in the College without any scope for medical education, in view of lack of infrastructures. Further, the situation is made complex due to the order passed by the Government of India debarring the institution from admitting students for 2 years for lack of infrastructures. This only denotes that there is no learning atmosphere with proper facilities in the 6th respondent College and therefore, the students could not attend College from first week of October, 2017 onwards.
7.The Medical College has been established based on the Essentiality Certificate issued by the State Government. The Essentiality Certificate would give benefit to the students, in case, the educational institution could not function properly and in that event, the State Government is duty bound to accommodate the students already admitted in the College. In view of issuance of Essentiality Certificate by the Government, on 03.09.2010, the respondent State Government has to accommodate the students, who are studying in the 6th respondent College in Government Medical Colleges in Tamil Nadu. In this regard, the petitioners have given a representation on 13.09.2017. Since no orders have been passed, the students have come before this Court with these writ petitions directing the respondent State Government to take over the responsibility of the students already admitted in the 6th respondent College including the petitioners with the permission of the 1st respondent by transferring them to the Colleges run by the 2nd respondent.
8.Since all the trustees have not been made as parties to the writ petitions, this Court suo motu impleaded the trustees as well as lending Banks as well as Bar Council of India and Tamil Nadu as the founder trustees and the new trustees tried to retain or take over the possession of the Medical College engaging hooligan advocates.
9.Mr.Sirajudeen, learned Senior Counsel appearing for the petitioners would submit that the students could not attend the College owing to lack of infrastructure. Even if the students report to the College, there will not be any use. Therefore, they should be accommodated in Government Medical Colleges.
10.Mr.R.Singgaravelan, learned Senior Counsel appearing for the founder trustees would submit that the infrastructure will be provided and though there is a dispute between the old trustees and the new trustees, that will not be a problem in providing the required infrastructure. He would further submit that only after getting Essentiality Certificate from the State Government and approval from the Medical Council of India as well as the Central Government, with great efforts, the medical college was established investing about 200 Crores. All the infrastructures have been made available rectifying the deficiencies/short comings pointed out in the report given by the Medical Council of India. The students were admitted during the year 2016-17 and they have almost successfully completed the first year course.
11.The learned Senior Counsel would contend that however, an order has been passed on 31.05.2017 by the Union Government debarring the College from admitting the students in the MBBS course for the next two academic years 2017-18 and 2018-19. The said order was challenged before the Honble Apex Court in W.P.(Civil).No.525/2017. The Honble Apex Court vide an order dated 14.09.2017 permitted the students who have been already admitted on the basis of the conditional LOP for the academic session 2016-17 to continue their studies and further directed the Medical Council of India to make inspection within two months and based on the report, the 6th respondent College to remove the deficiencies and communicate the same to the Medical Council of India which shall verify the position and submit its recommendations to the Ministry of Health and Family Welfare to take a final decision within one month. Further, it was held that till a final decision is taken, the Bank Guarantee offered by the petitioners for a sum of Rs.2 Crores shall not be en-cashed. Therefore, as on date, there is no adverse order against the 6th respondent College and the 6th respondent based on the report would rectify the deficiencies, if any, pointed out and there is no necessity for the students to leave the College. The same has also been stated in the order passed by the Honble Apex Court. Furthermore, the inter-se dispute between the parties had already been referred to mediation and it is progressing well. Therefore, he would seek for dismissal of the writ petition.
12.However Mr.Ramakrishnan, learned counsel appearing for the new trustees /Rajalakshmi Group would submit that absolutely there is no infrastructure and the founder trustees misled the new trustees resulting in dumping of more than Rs.80 crores in the College. In the absence of infrastructure, students cannot continue their education.
13.Mr.Vijay Narayan, learned Advocate General, assisted by Mr.T.M. Pappiah, learned Special Government Pleader would submit that the Essentiality Certificate issued by the State on 03.09.2010 had been cancelled by the State Government as early as on 11.05.2011 and therefore, there is no obligation on the part of the State to accommodate the students, in view of the order passed by the Medical Council of India as confirmed by the Union of India. Moreover, students admitted in Government colleges are more meritorious students compared to the students admitted in the 6th respondent Medical College. The students in Government Medical Colleges are top rankholders whereas the rank of the very first student, who was admitted in the 6th respondent Medical College is 3090 and the last student, who was admitted in the said College is 13,830. Therefore, these students cannot be accommodated in the Government Medical Colleges to undertake the studies with more meritorious students. Once the Essentiality Certificate is cancelled eventhough a stay order has been granted by this Court, until the order is set aside, no obligation is cast upon the State Government. Even if these students have to be accommodated, infrastructure should be increased and it would create unnecessary financial expenditure for the State Government. Moreover, the accommodation of these students could not be unilaterally done by the State Government and that has to be approved by the Medical Council of India and further confirmed by the Central Government. Therefore, it is not an easy job. Similar to the 6th respondent College, three more private medical colleges are likely to lose recognition. If the medical students from 6th respondent College are to be accommodated in Government Medical Colleges, the three other medical college students also have to be accommodated, which cannot be done. If at all, the State Government is ready to accommodate the students in self financing medical colleges.
14.Mr.V.P.Raman, learned standing counsel for Medical Council of India would submit that the Medical Council of India conducted inspection in the 6th respondent College on November 13th and 14th 2017 and a report has been filed to the Oversight Committee appointed by the Honble Apex Court and based on the recommendations of the Oversight Committee, the Central Government has to take a decision.
15.Heard the parties and perused the records.
16.Initially this Court was not inclined to pass any order in the present writ petitions as the Honble Apex Court has already passed an order at the instance of the 6th respondent College wherein the Honble Apex Court has directed the Medical Council of India and Union of India to allow the admitted students to continue in the same College. However, Special Leave to Appeal.(c).No(s).30827 30830/2017 arising out of final judgment and order dated 12.10.2017 in W.P.No.26556/2017 and etc., batch was filed on behalf of the students challenging the order passed by this Court, wherein the Honble Apex Court directed the petitioners to approach this Court for relief and hence, this Court, as mandated in that order, has to dispose of the writ petitions and therefore, the present order is being passed.
17.The undisputed facts are that for establishing a medical college, an Essentiality Certificate issued by the State Government concerned is mandatory and the 6th respondent college had obtained the Essentiality Certificate as early as 03.09.2010. A perusal of the conditional permission granted by the Ministry of Health and Family Welfare dated 20.08.2016 for intake of 150 students during the academic year 2016-17 would reveal that based on the direction issued on 13.06.2016 by the Honble Apex Court mandated Oversight Committee, the Ministry of Health and Family Welfare granted letter of permission for establishment of a new medical college. Pursuant to the approval granted by the Government of India on 20.08.2016 and the affiliation granted by Tamil Nadu Dr.MGR Medical University on 21.09.2016, the 6th respondent College was included in the centralized counselling conducted by the State Government, with the ratio of 65:35 seat sharing for Government and the Management. Therefore, it is stated that 97 seats were allotted towards Government quota and 53 seats were allotted towards the Management quota. Out of 97 seats in the Government quota, only 87 seats were filled up in the counselling and hence, the rest of the seats were surrendered to the Management and the Management in toto admitted 59 students and thus, 146 students were admitted in the College. Thereafter, two students are said to have left the College and thus, the total strength is 144 as on today. Further, it is agreed by all the parties that the certificates of the students are collected by the new trustees who are arrayed as respondents 7 and 8.
18.It is agreed by all the parties that almost all the students got through in the first year examinations. When the students are in the second year of the academic course, dispute arose between the founder trustees who are arrayed as R20 to R23 and the new trustees who are arrayed as R7 and R8 in all the writ petitions. There are also civil disputes pending between the parties from the District Court to the Honble Apex Court. However, this Court is not inclined to go into the inter-se dispute between the parties. Moreover, the matter has been referred to mediation and the mediation could continue to resolve the issue between the parties amicably.
19.The problem arose only when the Central Government passed an order debarring the management from admitting the students for the next academic years 2017-18 and 2018-19 by virtue of an order dated 31.05.2017. The said order has been passed based on the recommendations of the Medical Council of India stating that the College was found deficient during the inspection conducted by it. Consequently, another order dated 10.08.2017 has been passed by the Ministry of Health and Family Welfare reiterating its earlier decision dated 31.05.2017 to debar the College from admitting the students for a period of two years after accepting the recommendations of the hearing committee which made its recommendations pursuant to the Honble Apex Courts decision dated 01.08.2017, after hearing the College on 04.08.2017.
20.The 6th respondent College approached the Honble Apex Court challenging the Central Government's order dated 31.05.2017 in W.P.(Civil).No.525/2017 and the said writ petition was disposed by an order dated 14.09.2017 and the operative portion of the order in paragraph 13 is usefully extracted hereunder:
13.Accordingly, we dispose of this writ petition and interlocutory application in the same terms, as follows:-
(i) The respondents are directed to allow the students already admitted in the petitioner college on the basis of conditional LOP for the academic session 2016-17, to continue their studies.
(ii) The MCI shall depute its Inspection Team within a period of two months to submit an assessment report regarding the overall performance and efficiency of the petitioner college and deficiencies, if any and give time to the petitioner college to remove those deficiencies within the time specified in that regard.
(iii) The petitioner medical college shall then report its compliance and communicate the removal of deficiencies to MCI, whereafter it will be open to the MCI to verify the position and then submit its recommendation to the Ministry. The Ministry shall then take a final decision within one months of the receipt of the recommendation from the MCI.
(iv) We direct that until the final decision is taken by the Ministry and communicated to the petitioners, the Bank Guarantee offered by the petitioners in the sum of Rs.Two Crore shall not be encashed by the MCI but the petitioners shall keep the same alive. In the even the final decision of the Competent Authority of the Central Government is adverse to the petitioners, it will be open to them to take recourse to such remedies as may be permissible in law.
(v) We direct that the stated inspection to be conducted by the MCI will be to consider confirmation of LOP in favour of petitioner college for the academic session 2016-2017.
(vi) We further direct the respondents to treat the renewal application submitted by the petitioner college for the academic session 2017-18 as having been made for the academic session 2018-19 and process the same in accordance with law with promptitude.
21.As on date, the Union of India as well as the Medical Council of India and also the other respondents are bound by the decision of the Honble Apex Court, whereby it had directed the respondents to allow the students who were already admitted in the 6th respondent College on the basis of the conditional LOP for the academic session 2016-17 to continue their studies and the Medical Council of India has to inspect the College and based on the report, the 6th respondent College has to report its compliance and communicate the removal of deficiencies to the Medical Council of India and thereafter, the Medical Council of India has to verify the position and submit its recommendations to the Ministry which shall take a final decision.
22.Be that as it may, the very contention of the petitioner students is that infrastructures are lacking in the College and it is impossible for the medical students to continue their studies in the 6th respondent Medical College as there are no sufficient teaching staffs, medical equipments and most importantly, patients in the hospital attached to the College. The said contention is also fortified by the MCI's assessment report for the year 2018-19 [Part A-II]. A perusal of the said report would reveal that there is 86% deficiency in the teaching faculty and 91.83% deficiency in the resident doctors. Therefore, this Court agrees with the contention of the Medical students of the 6th respondent College and their education in the said institution would cause injustice to them, who are all very meritorious.
23.With regard to the deficiencies, as pointed out by the Medical Council of India, it is open to the 6th respondent College to rectify the short comings/lack of infrastructures and to work out its remedy and however, the students cannot be allowed to suffer.
24.Though the learned Advocate General would submit that Essentiality Certificate issued by the State Government dated 30.09.2010 was cancelled on 11.05.2011 and therefore, there is no obligation on the part of the State Government to accommodate the students studying in the 6th respondent College in other Government medical colleges, it has to be noted that the cancellation of the Essentiality Certificate has been submitted by the Government only before this Court during the course of hearing of the present writ petitions. Thereafter, the 6th respondent college filed writ petition number 27257/2017 and this Court passed an interim order as this Court prima facie found that the Essentiality Certificate was cancelled without notice to the College. Further, the Government cannot escape from its liability as the State Government should have opposed the establishment of the medical college when approval was granted by the Medical Council of India stating that the Essentiality Certificate which is the basic document issued by the State Government was already cancelled on 11.05.2011. If really, the cancellation had been made, the cancellation order should have been intimated to the Central Government as well as to the Medical Council of India as the copy of the original Essentiality Certificate dated 30.09.2010 was sent to the Central Government as well as the Medical Council of India. If the Central Government as well as the Medical Council of India had notice of cancellation of Essentiality Certificate, certainly they would not have granted approval for the 6th respondent College.
25.Atleast when the affiliation was granted by Tamil Nadu Dr.MGR Medical University to the College, the State Government should have brought to the notice of the University. Thereafter also, when the affiliation order was sent to the selection committee to include the 6th respondent College for medical counselling, the State Government did not wake up and avoided the inclusion of the 6th respondent College in the counselling. Thus, by their conduct, the State Government did not bring the cancellation of the Essentiality Certificate to the notice of the authorities and in a way, they are responsible to grant approval and affiliation and also to include the name of the college in the counselling. If really the cancellation of the Essentiality Certificate was done as early as on 11.05.2011, definitely for various reasons, the State Government would have opposed the establishment of College at every stage. Therefore, the State Government which is supposed to have raised objections pointing out the alleged cancellation of the Essentiality Certificate kept quiet and therefore, the State Government has the responsibility of accommodating the students, as per its undertaking given in the Essentiality Certificate dated 30.09.2010. The relevant portion of the certificate is usefully extracted here under:
It is further certified that in case the applicant fails to create infrastructure for the Medical College as per Medical Council of India norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government.
26.Assuming that there is cancellation of Essentiality Certificate, the State Government should have informed the same to the 6th respondent College or the Central Government, Medical Council of India and other authorities. It is well-settled law that passing of an order is not enough, unless it is communicated to the opposite or affected parties. If the cancellation of Essentiality Certificate had come to the notice of MCI and Central Government, they would not have approved the establishment of the 6th respondent College. Therefore, all the stake holders including the State Government have got responsibility towards the students. The State Government cannot wriggle out of the undertaking given in the Essentiality Certificate and it is estopped from going back on the promise/undertaking given in the Essentiality Certificate.
27.It is submitted by the learned Advocate General that topmost meritorious students alone have been admitted in the Government medical colleges, whereas the first student who was admitted in the 6th respondent Medical college has got 3090th rank and the last student admitted in the college has secured only 13830th rank and therefore, they cannot be accommodated along with the Government medical college students. Though, it is an admitted fact that the students studying in the 6th respondent College cannot be compared with those students studying in the Government medical colleges, the difference between them vanishes once they get admission into medical colleges. It is only for the purpose of admission alone and their rank cannot be extended or brought into, at the time of study. Rank is only like a passport to get into the medical college and what would matter thereafter is only their performance in the medical course. Rank is only based on their performance in the NEET examination.
28.The learned Senior counsel appearing on behalf of the petitioners would rely upon the judgment of the High Court of Punjab and Haryana in AAkansha Mahajan and others v. Union of India in CM.Nos.1510-11-CWP of 2017 in CWP.7348/2016 [O & M], dated 08.09.2017, in which, in similar circumstances, the Punjab and Haryana High Court had directed the State Government to make arrangement to shift the students to other medical colleges as the subject Chintpurni Medical college which was recognized initially, was not permitted to admit students in the next academic year. In that case also, relying upon the issuance of the Essentiality Certificate, the High Court of Punjab and Haryana taking into consideration of the plight of the students directed the State Government to accommodate the students in the Government colleges. The facts of the case leading to the said judgment are similar to the facts of the present case, as already, this Court has found that the Essentiality Certificate has not been cancelled and there is a legal duty cast upon the State Government to accommodate the students in the Government colleges.
29.This Court in the case of E.Reshmi Irene vs. DD Medical College and Hospital reported in (2014) 4 MLJ 572 directed the Medical Council of India to permit the State Government to create additional required seats in the Government medical college. In that case, DD Medical College and Hospital, after obtaining essentiality certificate from the State Government admitted the students for the year 2010-11, after obtaining permission from Medical Council of India with an intake of 150 students. The application for renewal of permission for the academic year 2011-12 was rejected and inspite of that, the institution admitted 103 students during the academic year 2011-12, without permission from the Medical Council of India. Subsequently, there were many proceedings before the Single Judge and Division Bench of this Court as well as before the Honble Apex Court. Finally, the Honble Apex Court upheld the order passed by the Medical Council of India. Thereafter, the students of 2011-12 and 2012-13 batch filed writ petitions to recognize the admission made by the institution and permit them to write the examination. The said writ petition was dismissed by the learned Single Judge and the same was also confirmed by the Division Bench of this Court. Having found that they were cheated by the DD Medical College and Hospital as well as the Tamil Nadu Dr. MGR Medical University, the students association and the individual students filed writ petitions seeking direction to the State to take over the institution and to direct the Medical Council of India to regularize the admissions.
30.A learned Single Judge of this Court, after hearing all the parties, directed the Medical Council of India to permit the State Government to create the required additional seats in the Government medical colleges for the academic year 2014-15 and distribute the students belonging to the academic year 2011-12 and 2012-13 proportionately in those medical colleges. The Court found that the students lost their valuable time on account of the illegal action taken by the management of the medical college which was assisted by the State Government in all possible ways and therefore, such a direction was given. Paragraphs 59, 60 and 88 of the said decision are usefully extracted here under:
59. The students have lost valuable time on account of the illegal action taken by a greedy management of a medical college. The Government of Tamil Nadu till 2010 considered this institution as an adopted child and tried its level best to nurture it in all the possible ways. The State and its instrumentality aided the institution directly and indirectly to cheat the students. There is no point in punishing the students in view of the fact that they are victims of circumstances. The students appear to have been carried away by the misrepresentation made by the management on the basis of the affiliation given by the University. The students of 2011-2012 batch lost three valuable years. Similarly, the students of 2012-2013 lost two years by now. The question therefore is how to remedy the situation. The State and statutory bodies were all at fault in this matter. The students have already been punished for their fault in taking admission in an institution without conducting thorough enquiry. The students in these cases appear to be from the middle class. The learned Senior Counsel for students submitted that many of the parents have mortgaged their property to pay the capitation fees and tuition fees.
60. The State having taken the responsibility of accommodating the students of 2010-2011 batch in Government Medical Colleges should have shown the very indulgence to the students of 2011-2012 and 2012-2013 batch. This is more so on account of the passive and active support given by the State and its University to the institution in its attempt to make illegal admission. As stated earlier, the undertaking given by the State in the Essentiality Certificate to accommodate the students would cover the cases of even students who were admitted without statutory approval and with the direct and indirect assistance given by the instrumentalities of State.
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88. The Medical Council of India and State of Tami Nadu are directed to give admission to the students of 2011-2012 and 2012-2013 batch of D.D. Medical College during the ensuing academic year. The MCI is further directed to issue appropriate orders in the line of earlier order dated 14 October 2013 permitting the State Government to accommodate all the students of 2011-2012 and 2012-2013 batch in 19 Government Colleges in the State of Tamil Nadu, so as to enable the students to join the first year M.B.B.S. Course during the academic year 2014-2015. This should be done as a one time increase to accommodate the students of DD Medical College for the years 2011-2012 and 2012-2013. The allotment of seats to the students should be made by the State in the same manner in which students of 2010-2011 batch were admitted pursuant to the decision taken by the Board of Governors at its meeting held on 9 October 2013 and indicated in the proceedings dated 14 October 2013. The MCI is directed to permit the State Government to create the required additional seats in Government Medical Colleges for the year 2014-2015 and distribute the students of 2011-2012 and 2012-2013 batch proportionately in those medical colleges either on the basis of merit or choice of students as done earlier. These students would be treated as fresh batch commencing from the academic year 2014-2015. There would not be any other right to the students on account of their earlier illegal admission or the public examination undertaken by them. The proceedings regarding the increase of seats and accommodating the students in Government institutions must be issued by MCI and the Government of Tamil Nadu as early as possible and in any case on or before 28 February 2014. Even the students who were illegally admitted by DD Medical College and Hospital were directed to be accommodated in the aforesaid case. That being so, in this case, the students were admitted pursuant to the approval given by the Medical Council of India followed by the allotment of the State selection committee. Hence, it is the duty of the State Government to accommodate the students.
31.The learned Advocate General would submit that not only the 6th respondent College but also, similarly placed colleges numbering 24 which were permitted by the Honble Apex Court empowered Oversight committee have been found to be deficient in infrastructure and actions are being taken against them. Moreover, there are three other medical colleges in the pipeline, which do not have sufficient infrastructures and if those students also have to be accommodated, it would be impossible for the State Government to do so. However, Mr.Sirajudin, learned Senior Counsel appearing for the petitioners would rely upon medical council assessment reports of inspection which would show that there was only 4.4% deficiency of teaching faculty in Karpagam faculty of Medical Science and Research, Coimbatore and 4.5% deficiency of teaching faculty and 1.17% deficiency of resident doctors in Melmaruvathur Adhiparasakthi Medical Science and Research and 4.54% deficiency of teaching faculty and 2.35% deficiency of resident doctors in respect of Madha Medical College and Research Institute, Chennai. The above reports would show that the percentage of deficiency is very negligible and by no stretch of imagination, the Medical Council of India can derecognize those colleges, whereas the percentage of deficiency in the 6th respondent college is more than 80%. In fact Mr.V.P.Raman, learned standing counsel for the Medical Council of India circulated the order dated 15.12.2017 passed by the Supreme Court mandated Oversight Committee. It is seen from the said order, pursuant to the direction issued by the Hon'ble Supreme Court in W.P.(C).No.525/2017, based on the MCI inspection report, the Hon'ble Supreme Court mandated Oversight committee also passed an order on 15.12.2017 approving the decision of the Medical Council of India, dated 22.11.2017, wherein a decision was taken to disapprove the application made by the 6th respondent College for renewal of permission for admission of 3rd batch of 150 MBBS students for the academic year 2018-19. Therefore, the case of the 6th respondent College cannot be compared with other colleges and certainly, the Medical Council of India would not derecognize the above referred medical colleges in view of the MCI reports and therefore, there would not be any occasion for the State Government to accommodate the students from those medical colleges. Hence, the apprehension of the State Government is unfounded, even as per the recent MCI reports.
32.It is seen nowhere in the transaction or in the process, either in the establishment of 6th respondent College or cancellation, the students were involved. Therefore, the State Government is bound to accommodate the petitioner students in Government Medical colleges.
33.1.It is not only the duty of the State Government to go by the undertaking but also safeguard the hapless innocent students who continue to suffer for no fault of them. They could not continue their medical studies from October 2017 till date i.e., for the past three months. That fact must also be taken into consideration sympathetically by the State Government. It is the duty of the Court to protect the interest of the students and the injustice done to them has to be set right for which this Court, as custodian of the constitution and civil rights, is duty bound to issue remedial orders for which the constitution confers unlimited powers on this Court under Article 226 of the Constitution.
33.2.The Hon'ble High Court in an effort to promote justice and prevention of injustice can grant appropriate relief as held by the Hon'ble Apex Court in the decision reported in (2011) 3 SCC 573 in the case of RBF Rig Corporation v. Commissioner of Customs (Imports). Paragraph 19 of the said decision is usefully extracted here under:
19.Article 226 of the Constitution confers powers on the High Court to issue certain writs for the enforcement of fundamental rights conferred by Part-III of the Constitution or for any other purpose. The question, whether any particular relief should be granted under Article 226 of the Constitution, depends on the facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice 33.3.In the decision of the Hon'ble Apex Court reported in AIR 1987 SC 537 : (1986) 2 SCC 679 in the case of Comptroller and Auditor General of India v. K.S.Jagannathan, the powers of the High Court to issue mandamus has been elaborately dealt with. Paragraph 20 of the said decision is usefully extracted here under:
20.There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. 33.4.In the decision of the Hon'ble Apex Court reported in 1996 SCC (4) 453 in the case of Union of India and Another v. Kirloskar Pneumatic Company Limited, it was held that the power conferred by Article 226/227 of the Constitution of India is designed to effectuate the law.
33.5.In the decision of the Hon'ble Apex Court reported in (2012) 1 SCC 10 in the case of Prithipal Singh v. State of Punjab, it was held that extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that the extraordinary fact situation requires extraordinary measures.
33.6.In the decision of the Hon'ble Apex Court reported in (2010) 5 SCALE 184 in the case of Cannanore District Muslim Educational Association, Kanpur v. State of Kerala and others, it was held that the power of High Court under Article 226 of the Constitution of India is to reach injustice wherever it is found.
33.7.In the decision of the Hon'ble Apex Court reported in 1965 SCR (3) 536, Dwarakanath, Hindu Undivided Family v. Income Tax Officer, Special Circle, Kanpur, it was held that the power of the High Court under Article 226 of the Constitution of India is wider than the power of the Hon'ble Supreme Court.
When such is the powers of the High Court, the facts of the present case warrant issuance of appropriate directions to safeguard the interest of the innocent students.
34.The learned Advocate General has also represented that the State has no objection to send the proposal to Medical Council of India to relocate the students admitted in the first batch. However, the same has also to be approved by the Ministry of Health and Family Welfare as well as by the Central Government and only after getting their approval, the students could be relocated in the self financing colleges. Though a decision has been taken by the State Government appreciably to send the proposal to MCI to relocate the petitioners namely, the existing students in the 6th respondent college, they cannot be relocated in the self financing medical colleges which have no connection at all with the students.
35.This Court is aware that 85% attendance is a must for medical students and only 10% condonation is permitted on medical grounds. The students have not attended the classes from the first week of October 2017 contending that the infrastructures available in the 6th respondent College are insufficient and there is no conducive atmosphere for learning. Thus, the students have lost their attendance for the past three months. The attendance should not be a problem, if the students are accommodated in the Government Medical Colleges. Therefore, the State Government and Tamil Nadu Dr.MGR Medical University are directed to take necessary steps to conduct special classes for the newly accommodated students, so that the lost attendance could be regained and there will not be any hinderance for them to write the examination and they could be brought on par with the regular students. The students who are already attending the classes in the 6th respondent College are at liberty to attend the Special classes to enrich their knowledge and there is no compulsion on their part to attend the classes, as they have already secured necessary attendance.
36.Therefore, it is the duty of the Government to accommodate the students studying in the 6th respondent College in the Government medical colleges by distributing them according to their merits. The students studying in the Government quota as well as the Management quota have to be accommodated and there cannot be any discrepancy between them. It is made clear that in future, the newly accommodated students shall not claim any parity in payment of fees as that of the students who are directly admitted in the Government Medical Colleges through counselling.
37.In view of the above reasons, this Court issues the following directions:
1.The State Government shall send a proposal to the Medical Council of India to accommodate the students studying in the 6th respondent College, within a period of one week from the date of receipt of a copy of this order.
2. The Medical Council of India, on receipt of the said proposal, shall take a decision and forward the same to the Honble Apex Court monitored Oversight Committee within one week therefrom.
3.The Oversight committee shall take a decision within a period of one week from the date of receipt of the decision of the MCI committee and forward the same to the Ministry of Health and Family Welfare.
4. The Ministry of Health and Family Welfare shall pass necessary orders increasing the number of seats in Government Medical Colleges and approve the accommodation of students studying in the 6th respondent College in the 22 Government Medical Colleges functioning in the State of Tamil Nadu.
5.Tamil Nadu Dr.MGR Medical University and the State Government shall make necessary arrangements to conduct special classes to the accommodated students from the 6th respondent Medical College, so that the lost attendance Could be made good and the newly admitted students could be brought on par with the regular students.
6.The new trustees viz., Respondents 7 & 8 (Rajalakshmi Group) are directed to return all the certificates to the 6th respondent College students within a period of one week from the date of receipt of a copy of this order.
7.The 6th respondent Medical college shall give necessary certificates as required by the Government to the individual students so that their accommodation in Government Medical Colleges will be made very easy without any problem.
8.The students are required to file an affidavit stating that they shall pay the fees fixed by the fee fixation committee applicable for private medical colleges every year.
38.Though the prayer sought for by the petitioners in all these writ petitions are granted, the writ petitions are kept pending to pass further orders on the issues taken up by this Court incidentally and also for reporting compliance.
39.Call the matter for reporting compliance through video conferencing on 02.01.2018 @ 02.15 P.M to monitor whether the Government has sent the proposal to the MCI and thereafter, the matter shall be listed on 10.01.2018, 17.01.2018, 24.01.2018 and 31.01.2018.
40.The sorrow and suffering of the students are due to various stake holders involved in the establishment of the medical college and the suffering of the students should not continue. Therefore, all the stake holders should necessarily approach the matter sympathetically with social responsibility to ensure that the order of this Court is complied with promptly and the students are accommodated in the Government Medical Colleges, at the earliest point of time.
22.12.2017 pgp Note: Issue order copy on 26.12.2017 N.KIRUBAKARAN, J pgp W.P.Nos.25215, 26085, 26177, 26556, 28262, 28374 & 28444 of 2017 Dated : 22.12.2017