Allahabad High Court
Glory Saji And 5 Others vs Union Of India And 9 Others on 5 January, 2021
Bench: Ramesh Sinha, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 10.12.2020
Delivered on: 05.01.2021
Court No. - 68
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,Saurabh Basu
Counsel for Respondent :- A.S.G.I.,Avanish Mishra,C.S.C.,Mahendra Pratap,Mohit Singh,Rijwan Ali Akhtar,Sanjay Kumar Om
Hon'ble Ramesh Sinha,J.
Hon'ble Samit Gopal,J.
[Delivered by Samit Gopal, J. for the Bench under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952]
1. Heard Sri Ravi Kant, learned Senior Advocate (through Video Conferencing) assisted by Sri Saurabh Basu, learned counsel for the petitioner nos. 2,3,4 and 5, Sri Anurag Khanna, learned Senior Advocate assisted by Sri Mohit Singh, learned counsel for respondent no. 8, Sri Mahendra Pratap Singh Yadav, learned counsel for respondent no.3, Sri Avnish Mishra, learned counsel for respondent no.5, Sri Rishi Kumar and Sri Manoj Mishra, learned Standing Counsels for the respondent no. 2/ State of U.P. No one appeared for the Respondent No. 1/Union of India even when the matter is taken up in the revised list.
2. In so far as the petitioner no. 1/Glory Saji and the petitioner no. 6/Manto Konyak are concerned, Sri Shiv Nath Singh, learned counsel appeared on their behalf, states that he does not want to press the present petition on their behalf and as such the same may be dismissed as not pressed to which learned counsel for the respondents have no objection.
3. The present petition has been dismissed in so far it relates to the petitioner no. 1/Glory Saji and the petitioner no. 6/Manto Konyak as not pressed without any further liberty.
4. Now the writ petition survives for the petitioner no. 2/Ronak Sharma, the petitioner no. 3/Himanshu, the petitioner no. 4/Arjaw Ojha and the petitioner no. 5/Shubham Shishodia only.
5. The present writ petition has been filed before this Court with the following prayers:
(i) a writ, order or direction in the nature of writ of mandamus commanding the respondent no. 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 Rs.500/- to Rs.2,000/- per day failure to deposit the same by 31 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 25.6.2018.
(iv) a writ, order or direction to the respondent no. 1, 2, 3, 4, 5, 6, 7 & 9 to immediately and forthwith initiate penal proceedings against 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 this Court may deem fit and proper to secure the ends of justice.
(vi) an order awarding the cost of the petition to the petitioners.
6. The writ petition was heard and was dismissed vide order dated 29.1.2020 by a co-ordinate Bench of this Court keeping it open for the petitioners to seek necessary directions from the Apex Court if so advised by filing an intervening application in the Writ Petition (Civil) No. 445 of 2017.
7. Against the said judgement dated 29.1.2020 passed by this Court the petitioners preferred a Special Leave to Appeal(Civil) No. 8780 of 2020 before the Apex Court, Himanshu and others Vs. Union of India and others,which was disposed of vide order dated 21.8.2020 by which the judgment and order of this Court was set aside and the matter was remanded back for deciding it afresh. All contentions from all sides were left open.
8. The petitioners were admitted in the M.B.B.S. course for the academic session 2016-17 in Venkateshwara Institute of Medical Sciences/respondent no. 8 (hereinafter referred as the 'Institute') in the first batch in the year 2016-17. A total 106 students were admitted in the M.B.B.S. course out of which 27 students were given admission through the counseling done by the Director General, Medical Education and Training, U.P./respondent no. 3 and the remaining 79 students were given direct admission by the Institute. Though 79 students who were given direct admission by the Institute had qualified NEET Examination, the respondent no. 3 refused to give recognition to the said 79 who were given direct admission by the Institute vide order dated 27.1.2017 and as such three writ petition being Misc. Bench No. 10284 of 2017, (Saraswati Medical College Thru. President Dr. Rajat Mathur Vs. Union of India Thru. Secy. Ministry of Health & Family & others), Misc. Bench No. 10310 of 2017(Venkateshwara Institute of Medical Sciences Vs. Union of India Thru. Secy. And others) and Misc. Bench No. 10319 of 2017 (Krishna Mohan Medical College & Hospital, Thr. Kishan Chaudhary Vs. Union of India Thru. Ministry of Health & Family Welfare & 5 others) before the Lucknow Bench of this Court challenging the said order. The said writ petition along with two other writ petitions on the identical subject were decided by a common judgement and order dated 15.6.2017. The same is annexed as annexure no. 1 to the writ petition. The operative portion of the said order is extracted herein below:-
"In the result the orders impugned dated 27.1.2017, passed by the opposite party No.2 i.e. Medical Council of India, New Delhi and approval of minutes of the Monitoring Sub-Committee dated 9.1.2017 & 20.1.2017 by the Executive Council on 13.1.2017 & 25.1.2017, so far as it relates to discharge of students admitted by the petitioners mentioned in the impugned orders dated 27.1.2017 are hereby quashed.
It is clarified that the petitioners are not permitted to admit the students beyond its sanctioned strength as well as beyond the merit list prepared in NEET 2016 and further not below the merit of last candidate allotted through Counselling Board.
The writ petitions are allowed."
9. The judgement and order dated 15.6.2017 passed in the said writ petitions was then challenged by the Medical Counsel of India before the Apex Court in Special Leave to Appeal(Civil) No. 17624 of 2017, Medical Council of India Vs. Saraswati Medical College and others, which was dismissed vide order dated 04.8.2017.The same is annexed as annexure no. 2 to the writ petition. The said order is extracted herein below:-
"We see no reason to interfere with the impugned judgment(s) and order(s) passed by the High Court. The special leave petition are, accordingly, dismissed.
Pending applications stands disposed of."
10. After dismissal of Special Leave to Appeal all the students admitted in session 2016-17 were regularized by the Institute and were treated in the same category. The respondent no. 3/Director General Medical Education and Training, U.P. issued Essentiality Certificate dated 28.1.2014 to the Institute with certain terms and conditions which were required to be followed by the Institute failing which fresh admission would be stopped by the Central Government and the State Government shall take over the responsibility of the students who have already been admitted in the Institute which was to be done with the terms of Central Government. The course as stated by the petitioners consisted of two wings in it. The first was in the first year being non-clinical and from second year onwards being clinical which was till conclusion of M.B.B.S. course. The same required certain infrastructure which was mandatory for imparting medical education. It is further stated that running of hospital where patients were being treated was never made available to the students on account of which their education was deficient from the beginning itself and the students were put to disadvantage due to very poor standard of education being provided to them in the absence of the prescribed infrastructure. The requests on the part of the petitioners to the Institute to provide necessary infrastructure for non-clinical and clinical part of their education remained unattended and the same was not provided. The Institute was thus stated to be running without the necessary infrastructure and without providing quality education to the petitioners who were paying exorbitant fees every year. The Medical Council of India/respondent no. 5 conducted inspection of the Institute on 28.12.2015 and gave its report that the Institute was running without the necessary infrastructure for imparting education as per curriculum to the petitioners. The report of the respondent no. 5/Medical Council of India is extracted herein below:-
"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. "
11. The respondent no. 5 then wrote a letter dated 31.5.2017 referring to the inspection conducted in the Institute to Central Government for not issuing permission letter for establishment of New Medical College. The earlier decision dated 31.5.2017 of the respondent no. 5 was subsequently endorsed and passed an order dated 10.8.2017 to debar college from admitting students for two academic years and further authorized the respondent no. 5 to encash the bank guarantee worth Rs.2 crores. The Institute was debarred by the said order for academic session 2017-18 and 2018-19. The copy of the said order dated 10.08.2017 is annexed as annexure no. 5 to the writ petition. The present writ petition has thus been filed before this Court with the prayers as stated above.
12. Learned Senior Counsel appearing for the petitioners has argued that since the infrastructure and the standard of education was not up to the mark hence the present case is a fit case where the petitioners should be transferred to other recognized Medical College of State of U.P. for pursing their studies. Learned Senior Counsel has placed before the Court annexure no. 3 to the writ petition being the Essentiality Certificate dated 28th January, 2014 issued by the Deputy Secretary, Medical Education, Government of U.P. and has argued that in the said certificate it has been specifically provided that if the Institute fails to create infrastructure for medical college as per Medical Council of India norms fresh admissions are to be stopped by the Central Government. The State Government shall take over the responsibility of the students already admitted in the college with permission of the Central Government. It is argued that on the basis of the said certificate the petitioners who claim to be transferred to any other recognized medical college in the State of U.P. be allowed and further looking to the fact that the college was not granted permission for fresh admissions for the year 2017-18 the infrastructure remained deficient and as such the prayers be allowed and a mandamus be issued for the same.
13. Sri Anurag Khanna, learned Senior Counsel appearing for the Institute/respondent no. 8 has argued that the Institute preferred a writ petition before the Apex Court numbered as Writ Petition(Civil) No. 445 of 2017, Shri Venkateshwara Institute of Medical Sciences through its Registrar and another Vs. Union of India and another, with the prayer to quash the order dated 31.5.2017 vide letter No. U-12012/27/2016-ME-I(3084749) by which the Institute was debarred from admitting students in M.B.B.S. course for the academic session 2017-2018 and 2018-2019 and further the Medical Council of India was authorized to encash the bank guarantee of Rs.2 crores with a further direction to the respondents to grant renewal of permission for the academic year 2017-2018 and further admit the students in the said session only. On 1st September 2017, directions were passed by the Apex Court in the said writ petition that the students who have been admitted in the Institute for the academic sessions 2016-2017 shall continue their studies there only along with other directions. In so far as the application for renewal for the year 2017-2018 was concerned the Apex Court directed that the said application may be treated as an application for the academic year 2018-2019. It was further directed that the bank guarantee which was deposited shall not be encashed and shall be kept alive. The operative portion of the said order dated 1.9.2017 passed in the matter is extracted herein below:-
"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."
14. It is further argued that the said writ petition was disposed of vide order dated 28.11.2017 by the Apex Court but the directions contained in the order dated 01.9.2017 in para- 17 and 18 remained unaltered. The said order is annexed as annexure no. SCA-16 to the supplementary counter affidavit. The same is extracted herein below:
"It is assured by the learned counsel appearing on behalf of the Medical Council of India that the Medical Council of India shall communicate the outcome/ recommendation on the representation made by the petitioners by 10th December, 2017.
Let it be communicated by 10th December, 2017.
Accordingly, writ petition is disposed of."
15. Sri Anurag Khanna, learned Senior Counsel has then argued that since there was specific directions as contained in para-17 of the order dated 01.9.2017 passed in Writ Petition (Civil ) No. 445 of 2017, the issue as raised before this Court comes to an end as the Apex Court has directed that the students who have been admitted in the Institute for the academic session 2016-2017 shall continue their studies and as such there is no occasion for transfer of the students from the Institute to any other Medical College as has been prayed.
16. Learned counsel appearing for the respondent no. 5 also has in rebuttal placed before the Court para-47 of the counter affidavit which reads as under:
"That it is further submitted that under the IMC Act and the regulations framed thereunder, transfer of students studying in a medical college is permissible under extreme circumstances when the medical college has failed to fulfill the minimum requirement of teaching faculty, clinical material and other physical infrastructure resulting in closure of the medical college. It is only when the college is completely shut down then to protect the future of the students they are transferred to another college and in the present case the stage has not reached yet. It is humbly stated that transfer of the students from one medical college to another medical college cannot be permitted in a routine manner as no medical college can be permitted to exceed the sanctioned intake of student. In view thereof, it would not be appropriate to transfer the petitioner students to some other college at this stage."
17. Learned counsel has further placed before the Court clause-6 of the Medical Council of India Regulations on Graduate Medical Education, 1997 and has argued that migration of students from one college to other is not a right of student. He argued that migration from one medical college to another medical college in India may be considered by the M.C.I. in exceptional cases on extreme compassionate grounds provided the criterias are fulfilled. It is argued that routine migration on other grounds shall not be allowed.
18. Learned counsel for the respondent no. 5 has argued that subsequently an inspection was conducted by Medical Council of India on 3.5.2019 and no deficiency was found in the Institute. It is thus argued that the petitioners have failed to make out any case for transfer from the Institute to any other medical college.
19. After having heard learned counsel for the parties and perusing the records, it is clear that since the petitioners were admitted in the Institute for academic session 2016-17 and they have been permitted to study in the Institute vide order dated 01.9.2017 passed by the Apex Court they are bound to obey the said order and continue their studies in the Institute. Rules of Medical Council of India/respondent no. 5 also in categorical terms states the situation where migration of students have to be done and the petitioners do not qualify the said contingencies. The college is having no deficiency as per the report of inspection of Medical Council of India dated 03.5.2019. Moreover, we fail to understand that out of 106 students admitted by the Institute for academic Session 2016-17, 100 students are stated to be pursuing their studies and are attending regular classes which has been categorically stated in paragraph no's. 25 and 29 of the counter affidavit dated 23.10.2018 filed on behalf of the Institute which has not been categorically replied too in the paragraph no's 24 and 28 of the rejoinder affidavit dated 04.02.2019 filed on behalf of the petitioners and an evasive reply has been given by them. It is only the present petitioners who have a grievance with the Institute for not having the required infrastructure but their grievance after considering the entire facts and circumstances of the case as has been discussed above does not seem to hold good and reasonable. It also seems that the petitioners instead of pursing their studies seriously, are indulging in unnecessary litigation and wasting their time though the Apex Court has permitted them to continue study in the Institute vide order dated 01.09.2017.
20. The present writ petition lacks merit and is accordingly dismissed.
21. No order as to cost.
22. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked, before the oncerned Court/Authority/Official.
23. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal,J.) (Ramesh Sinha,J.) Order Date :-05.01.2021 Naresh