Calcutta High Court (Appellete Side)
Madhurima Biswas & Ors vs The State Of West Bengal & Ors on 18 December, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
1
18.12.2018
Item No. 12
Ct. No.4
AB
W.P. 15813 (W) of 2018
In the matter of: Madhurima Biswas & Ors.
-versus -
The State of West Bengal & Ors.
Mr. Surajit Nath Mitra
Mr. Kallol Basu
Mr. Suman Banerjee
Mr. Samik Sarkar
...... For petitioners
Mr. Bikash Ranjan Bhattacahrya
Mr. Uday Sankar Chatterjee
Ms. Snigdha Saha
Mr. Santanu Maji
...... for respondent College
Mr. Partha Sarathi Deb Barman Mr. S. M. Hasan Mr. Shaharayar Alam ........ For respondent no. 10 Mr. Sougata Bhattacharya Mr. Sunit Kumar Roy ....... For MCI Mr. Supratic Roy Mr. D. N. Maiti ....... For WBUHS Mr. Kumarjyoti Tewari ..... for respondent nos. 2 & 3 Mr. Lalit Mohan Mahata Mr. Prasanta Behari Mahato ....... For the State Fifteen students studying in fifth semester at respondent-college for course study to obtain M.B.B.S. degree have moved Court. Respondent-college suffered 'stop admission' directives from Central Government for 2 academic years 2017-2018 and 2018-2019. The college petitioned Supreme Court under article 32 of the Constitution of India which resulted in judgement dated 21st September, 2017. Mr. Mitra learned senior advocate appears on behalf of petitioners and his submissions regarding classes being irregularly held, his clients having to face upcoming University examination in absence of preparatory classes, theoretical as well as practical, stand recorded in order sheet.
On 4th December, 2018 Mr. Mahato, learned advocate appearing on behalf of State had handed up his written instructions which were reproduced in order of said date as also below:
"Instructions in connection with WP No 15813 (W) of 2018 (Madhurima Biswas & Ors. -Vs- State of WB & Ors.) are as follows -
1. The representations dated 25.05.2018, 22.06.2018 & 19.07.2018 from the students of ICARE Institute of Medical Science & Research, Haldia were forwarded to the West Bengal University of Health Sciences, the affiliating University for taking appropriate action in this regard since it is the University which mentions this kind of activities.3
2. No such representation in this regard has been received from the concerned college authorities stating such deficiencies.
3. For shifting of any students from concerned institute any state run medical college will required permission from the Government of India & the Medical Council of India.
Please take needful action and thus oblige." Directions made in said order dated 4th December, 2018 are reproduced below:
"Government of India and Medical Council of India will inform Court regarding their respective positions on granting permission for shifting of petitioners. They will take such steps as are in compliance with directions in said judgement dated 21st September, 2017 of Supreme Court for purpose of taking their positions regarding whether or not to grant permission. In event they feel permission is to be denied, they will be heard on adjourned date upon proper disclosure made for basis of it. Adjournment is not likely to be granted."
Today Mr. Bhattacharyya, learned advocate appearing on behalf of Medical Council of India (MCI) files affidavit.
Mr. Mitra submits, affidavit filed by MCI is not affidavit-in-opposition per directions obtained earlier but pursuant to above directions. He refers to paragraphs 63 and 64 in the affidavit, which are reproduced below: 4
"63. It is submitted that the application under Section 11(2) for recognition of the MBBS qualification as granted by respondent no. 8 - West Bengal University of Health Sciences, Kolkata, in respect of students trained at respondent no. 9 - ICARE Institute of Medical Sciences & Research, Haldia had been received, whereafter, in view of deficiencies pointed out in the assessment reports dated 03.02.2017, 17/18.03.2017 & 24.04.2017, the answering respondent was compelled to recommend to the Central Govt. vide letter dated 29.03.2017, a copy whereof is annexed herewith as ANNEXURE R-5/, to debar the medical college from admitting students for the academic years 2017-18 & 2018-19 since it had failed to comply with the conditions stipulated by the then Oversight Committee including the undertaking provided by the medical college towards grant of renewal of permission for admitting 6th batch of 100 MBBS students for the academic year 2016-17, alongwith encashment of its Bank Guarantee. The answering respondent had also decided not to grant recognition to the medical college for award of MBBS degree alongwith debarment for the academic years 2017-18 & 2018-19, vide letter dated 30.04.2017.
64. It is submitted that the Central Govt. vide letter dated 31.05.2017, while confirming the conditional renewal of permission for admitting 6th batch of 100 MBBS students for the academic year 2016-17, had not granted permission to the medical college to admit fresh batch of 100 MBBS students for the academic year 2017-18. The medical college has also not being granted any permission 5 to the medical college to admit fresh batch of 100 MBBS students for the academic year 2018-19."
He relies on Medical Council of India Establishment of Medical College Regulations, 1999 to regulation 1, sub-regulation (3) of regulation 2 and essentiality certificate in form 2 as notified on 30th July, 1999. He points out, these regulations were made in exercise of power conferred by section 10A read with section 33 of Indian Medical Council Act, 1956. Appropriate Government in this case would be State Government. Sub-regulation (3) in regulation 2 provides for essentiality certificate in form 2, to be obtained by the person eligible to apply for permission to establish a Medical College and the form itself is as in the notification. He places particular emphasis on following statement in essentially certificate as in form 2, extracted below:
"It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI 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." 6
Mr. Mitra submits, there is no dispute on facts regarding fresh admissions in respondent-college stopped by Central Government. Contingency provided on happening, State Government is to take over responsibility of students already admitted in the college. Though State had caused instructions to be issued regarding permission being granted by MCI and Central Government, MCI has filed affidavit to contend against grant of such permission alleging his clients are seeking migration. Union of India has not filed affidavit but appears to have adopted contention of MCI that his clients are seeking migration. He submits, this is a case being thrust upon petitioners. Petitioners' case is similar to that which arose before High Court of Judicature at Madras and dealt with by a learned Single Judge by judgement dated 22nd December, 2017 in, inter alia, W.P. 25215 of 2017 (Hari Prasad and others Vs. The Health Secretary, Ministry of health and Family Welfare and others). He relies particularly on paragraphs 2, 3, 6, 7, 36, 37 and 40 of the judgement. He demonstrates, second year students in a Medical College situate in Tamil Nadu were faced with similar situation as his clients. On facts before the Court, by 7 the judgment it gave directions in paragraph 37 as are reproduced below:
"37. In view of the above reason, 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 Hon'ble 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 8 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."
He then relies on earlier decision of a Division Bench of High Court of Gujarat in Mulani Akash Jaysukhbhai Vs. Union of India reported in 2011 SCC online GUJ 4707 to submit, in the unfortunate situation said Court had to intervene to direct transfer of students for them to continue with course study to achieve their qualification of being doctors in medicine. Lastly, he relies on judgement of Supreme Court in Government of A.P. Vs. Medwin Educational Society 9 reported in (2004) 1 SCC 86, paragraphs 24 to 28 to submit, grant of essentiality certificate in prescribed form, therefore, emanates from the scheme framed under parliamentary legislation being the Act of 1956 and said form is a part of 1999 Regulations.
Mr. Mahato submits, his instructions received, as recorded in said order dated 4th December, 2018, were not for informing procedure but for his client to obtain permission of MCI and Central Government, as is necessary, since matter has reached Court. He submits further, there was no vacant seat left for academic year 2016-17, in which petitioners were allotted admission in respondent-college. As such there is no vacancy in 6th semester in medical colleges in the State.
Mr. Bhattacharyya submits, contention of his client is respondent-college has taken steps to remove discrepancies. He relies on paragraph 11 of the affidavit to submit, the College by its letter dated 17th July, 2018 had submitted compliance which was verified by Council Assessors, by way of compliance verification assessment, on 16th November, 2018. Same is under consideration of the Council. His client's affidavit was sworn before Notary on 14th December, 2018 till when result of 10 consideration by the Council, regarding removal of deficiencies claimed by the College, had not been had. He submits with reference to relevant regulations regarding migration, no migration is permissible either during second or third medical professional. He refers to paragraph 50 of the affidavit, reproduced below, to be contention of MCI in opposing claim for relief sought by petitioners.
"50. The Clinical subjects to be taught during Phase II and III are Medicine and its allied specialities, Surgery and its allied, obstetricts and Gynaecology and Community Medicine. It is keeping in mind the above division of subjects that very stringent criteria has been laid down in the Statutory Regulations for obtaining permission for migration from one medical college to another medical college. That with the said object in mind and under the said circumstances, it has been provided in the Regulations on Graduate Medical Education, 1997 that migration of a medical student from one medical college to another is permissible only in extreme circumstances and in any case, no migration is permissible either during the Second Medical Profession or Third Medical Professional. A candidate is eligible to apply for migration only after qualifying the first professional MBBS Examination and that migration during clinical course of study is not allowed on any ground whatsoever."11
Referring to paragraph 82 of the affidavit he submits, till such time respondent-college is not closed down by Central Government, students admitted during academic year 2016-17 cannot be allowed obtain transfer or shift or migrate to any other medical college. On query from Court he does not dispute that the College has suffered 'stop admission' directives for academic years 2017-18 and 2018-19. He relies on judgements annexed to the affidavit-in-opposition for judicial views on situations where a student can ask for migration. He submits further, subject matter of this writ petition was before Supreme Court as raised in Writ Petition (Civil) 633 of 2017 made by the College under article 32 of the Constitution of India. He relies on following, a passage in paragraph 5, paragraphs 39 and 40 of judgement dated 21st September, 2017 in said writ petition as are reproduced below:
"5. ...........The petitioners also submitted a letter dated 30.07.2016 to the Oversight Committee clarifying the factual position in respect of alleged deficiencies pointed out by the assessors and thereafter, the first respondent vide communication dated 20.08.2016 on the basis of the report of the Oversight Committee granted permission for the 6th batch (100 seats) in MBBS course for the academic year 2016-17 under Section 10-A of the Act 12 and further stipulated that the next batch of students in various courses be admitted in the College only after the permission of the Central Government for renewal and fulfilling of the stipulated conditions..................
39. As noted earlier, an institution has to remain compliant and necessity for remaining compliant becomes more important as the institution enters the renewal year and thereafter for grant of approval and recognition under Section 11(2) of the Act. At the time of consideration of recognition, the compliance is viewed and scrutinized with great rigour and strictness. What may be treated as a minor deficiency at the initial stage may not remain so when the institution/college proceeds from year to year. In the instant case, we have already held that surprise inspection in law is permissible and the said inspection is not tainted with mala fide, as alleged. Once we arrive at such irresistible conclusion, the order passed by the Central Government with the assistance of the Hearing Committee cannot be flawed.
40. Though we have so held, we think it appropriate to direct that the students who have been admitted in the respective courses shall be permitted to continue in the courses and the students who pass out from the institution, the MCI shall see to it that they are conferred degrees. The MCI is directed to conduct an inspection for recognition keeping in view the academic year 2018-19 and if during the inspection any deficiency is noticed, the same shall be intimated to the petitioner No. 2 institution and thereafter, process shall be carried out keeping in view and principles of natural justice in mind and the principles stated in IQ 13 City Foundation (supra). The inspection shall be carried out as per the schedule by the MCI for grant of recognition for the academic year 2018-2019 and to avoid any kind of uncalled for situation, the application submitted for the academic year 2017-2018 shall be treated as application for the academic year 2018-2019. The bank guarantee furnished by the institution shall not be encashed by the MCI and the petitioners shall keep it alive." (Emphasis supplied).
He submits, there should not be interference.
Mr. Tiwary, learned advocate appears on behalf of Union of India and submits, his instructions are petitioners are seeking migration. Migration cannot be allowed. However, State Government has not said they shall take over responsibility of the students already admitted in the College, to seek permission of Central Government. His client cannot give permission in a void. Instructions on position of State Government, to be contended in this writ petition, cannot be seen as State Government willing to undertake responsibility of these students already admitted in the College as seeking permission to shift them elsewhere.
Mr. Deb Barman, learned advocate appears on behalf of the College and reiterates submissions made by his learned leader on earlier occasion, to effect that his 14 client is desirous and working to overcome and rectify deficiencies notified. On query from Court he submits, though directions were obtained for filing affidavit, the College has not used any. He refers to judgement dated 21st September, 2017 (supra) in dealing with his client's Writ Petition (Civil) 633 of 2017 made under article 32 of the Constitution of India, to submit, petitioners herein were protected thereby. He relies on extract above of paragraph 40 of the judgement, regarding direction upon MCI to confer degrees on students/petitioners.
That there were deficiencies in the College as on admission year of petitioners cannot be disputed. Court has perused material to show that conditional permission was granted for admissions given to students for academic year 2016-17, year of admission of petitioners. The College thereafter suffered 'stop admission' directives from Central Government for following two academic years 2017-18 and 2018-19. Extract from essentiality certificate prescribed form 2 shows, competent authority must have certified that in case the College failed to create infrastructure for the Medical College as per MCI norms and fresh admissions are stopped by Central Government, State Government 15 shall take over responsibility of students already admitted in the College with permission of Central Government. In this case this contingency has arisen. Petitioners are some of the students admitted in academic year 2016-2017. For following academic years fresh admissions were stopped by Central Government. Instructions of State were as extracted above. Court by directions made on 4th December, 2018, also extracted above, put MCI and Central Government on notice that State was seeking permission. State's contention is that there are no vacancies but there has been no dispute raised regarding its obligation in the contingency arisen.
Question before Court is whether State Government must take over responsibility of students already admitted in the College, some of whom are before Court. To that, answer must be that State is obliged to do so as undertaken by it on issuance of essentiality certificate to the College by competent authority. How it is to be done is a matter for State in administering medical education. This Court can only say Mulani Akash Jaysukhbhai (supra) may be of some instruction regarding creation of temporary vacant seats in several colleges for distribution of students as displaced from 16 respondent-college on failure to provide infrastructure for them to pursue course study. Supreme Court in Medwin Educational Society (supra) declared about essentiality certificate in prescribed form, its binding nature and for compliance.
This Court has not found anything in materials before it to show deficiencies have been removed to risk compelling petitioners and other students admitted in academic year 2016-2017 to continue with course study in the College. In judgement dated 21st September, 2017 (supra) Supreme Court had noticed that petitioners had submitted a letter dated 30th July, 2016 to Oversight Committee and thereafter first respondent (in that writ petition) vide communication dated 20th August, 2016, on basis of report of Oversight Committee, granted permission for 6th batch (100 seats) in MBBS course academic year 2016-2017. This Court ascertained, from parties appearing before it, students were not respondents in that writ petition. Relied upon directions, made in paragraph 40 of the judgement, were particularly on MCI to see that the students are permitted to continue in the course and those who pass out from the College are conferred degrees. It is clear, to 17 mind of Court, the directions implied restraint on MCI from recommending that these students should not be allowed to continue in the College or that inspite thereof, if they did and passed out from it, they would not be conferred degrees. Today MCI appears to have turned around and is saying that the students must continue in the College. However, no fact, as established on materials disclosed, could be shown by MCI to exist, to demonstrate that successive 'stop admission' directives by Central Government were based on deficiencies, which have been removed. Compliance was asserted by the College in reference to MCI's letter dated 30th April, 2017. Such assertion was on 17th July, 2018 which till date MCI has not been able to deal with. Writ petition succeeds.
State will take over responsibility of students already admitted in respondent-college in academic year 2016-2017. State will apply for permission to Central Government forthwith in discharge of this responsibility. This application for permission must be made within one week from date of communication of this order upon respondent no. 2, as submits Mr. Mahato to be the competent authority. Central Government is directed to 18 thereafter expeditiously deal with the application within two weeks from date of making of it. Court is confident Central Government can do it since the matter has been in its consideration as by issuance of said successive 'stop admission' directives on respondent-college. Necessity of acting in expedition cannot be over emphasized. State on receiving permission will take steps to discharge its responsibility of accommodating the students so that they can continue and complete their course study on getting proper preparatory instructions, both theoretical and practical, to be able to serve society as duly qualified competent doctors. In discharging this responsibility State must also deal with financial implications regarding fees already paid and to be paid by the students and petitioner no. 11.
On this judgement being dictated in Court Mr. Bhattacharyya prays for stay of operation of it. Mr. Basu opposes the prayer. Prayer is considered and rejected.
(Arindam Sinha, J.)