Karnataka High Court
Kempegowda Institute Of Medical ... vs The Medical Council Of India on 25 August, 2014
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.Nos.34373-34374/2014 (EDN-AD)
c/w
W.P.Nos.34888-34889/2014 (EDN-REG-P),
38495-38496/2014 (EDN-RES), 38791-38792/2014
35049-35050/2014, 35055-35056/2014,
38804/2014 AND 34363-34364/2014 (EDN-REG-P)
W.P.Nos.34373-34374/2014
BETWEEN:
1. KEMPEGOWDA INSTITUTE OF MEDICAL SCIENCES
BANASHANKARI 2ND STAGE,
BANGALORE-560070
REP. BY ITS PRINCIPAL
DR.M.G.GOPAL
S/O GOVINDAIAH
AGED ABOUT 60 YEARS,
R/O BANGALORE
2. DR.APPAJI GOWDA
S/O LATE SRI CHANNEGOWDA
AGED ABOUT 58 YEARS,
PRESIDENT RAJYA VAKALIGARA SANGHA
K.R.ROAD, V.V.PURAM,
BANGALORE-560 004
... PETITIONERS
(By SRI MADHUSUDHAN R NAIK, SR.ADV. FOR
SRI ABHISHEK MALIPATIL FOR
M/S. NAIK AND NAIK LAW FIRM)
AND:
1. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8,
DWARKA PHASE 1
2
NEW DELHI-110077
THROUGH ITS SECRETARY
2. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN, C WING,
NEW DELHI-110001
THROUGH ITS SECRETARY
... RESPONDENTS
(By SRI N KHETTY, ADV. FOR R1
SRI ANIYAN JOSEPH, CGC. FOR R2 )
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL
FOR THE RECORDS OF THE PROCEEDINGS BEFORE THE
RESPONDENTS AND QUASH THE DECISION OF THE MEDICAL
COUNCIL OF INDIA DTD.13.6.2014 AS PER AGENDA ITEM
NO.119 (VIDE ANNEX-A) AND COMMUNICATED TO THE
MINISTRY OF HEALTH AND FAMILY WELFARE ON 10.7.2014 IN
SO FAR AS IT APPLIES ONLY TO GOVERNMENT INSTITUTES AS
BEING DISCRIMINATORY, ARBITRARY, UNREASONABLE AND
UNSUSTAINABLE IN LAW AND ETC.
W.P.Nos.34888-34889/2014
BETWEEN:
1. AL-AMEEN CHARITABLE FUND TRUST
NO.3, MILLERS TANK BUND ROAD
OFF. CUNNINGHAM ROAD
BANGALORE-560052
REP. BY ITS PRESIDENT
SRI ZIA ULLA SHERIFF
2. AL-AMEEN MEDICAL COLLEGE & HOSPITAL
ATHANI ROAD, BIJAPUR-586108
OWNED AND MANAGED BY
A-AMEEN CHARITABLE FUND TRUST
BANGALORE-560052
REP. BY ITS PRINCIPAL
DR. B S PATIL
... PETITIONERS
(By Sri D N NANJUNDA REDDY, SR.COUNSEL FOR
Sri NISHANTH A V)
3
AND:
1. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8
DWARKA PHASE 1
NEW DELHI-110077
REP. BY ITS SECRETARY
2. THE UNION OF INDIA
THE MINISTRY OF HEALTH
AND FAMILY WELFARE
NIRMAN BHAWAN, C WING
NEW DELHI-110001
REP. BY ITS SECRETARY
... RESPONDENTS
(By Sri N KHETTY, ADV. FOR R1
Sri ANIYAN JOSEPH, CGC. FOR R2 )
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL
FOR THE RECORDS OF THE PROCEEDINGS BEFORE THE
RESPONDENTS & QUASH THE DECISION OF THE MEDICAL
COUNCIL OF INDIA (R-1) DTD.13.6.2014 AS PER AGENDA ITEM
NO.17 (VIDE ANNEX-A) AS BEING DISCRIMINATORY,
ARBITRARY, UNREASONABLE AND UNSUSTAINABLE IN LAW
AND ETC.
W.P.Nos.38495-38496/2014
BETWEEN:
1. YENEPOYA UNIVERSITY
UNIVERSITY ROAD,
DERALAKATTE, MANGALORE
REP. BY ITS REGISTRAR
PROF.(DR) C.V.RAGHUVEER
S/O C.K.VASUDEVA RAO,
AGED ABOUT 63 YEARS,
R/O MANGALORE
2. YENEPOYA MEDICAL COLLEGE
UNIVERSITY ROAD,
DERALAKATTE, MANGALORE
REP. BY ITS DEAN/PRINCIPAL
PROF.GHULAM JEELANI QADRI,
S/O GHULAM MOHAMMED QADRI,
4
AGE ABOUT 65 YEARS
R/O MANAGALORE
... PETITIONERS
(By Sri K SHASHI KIRAN SHEETY, SR. COUNSEL FOR
Ms. FARAH FATHIMA)
AND:
1. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN, C WING
NEW DELHI-110001
THROUGH ITS SECRETARY.
2. THE MEDICAL COUCIL OF INDIA
POCKET 14, SECTOR 8
DWARKA PHASE 1
NEW DELHI-110077
THROUGH ITS SECRETARY.
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO QUASH THE ORDER DTD.15.7.2014 ISSUED BY THE R-1
(ANNEX-A) AND DIRECT THE RESPONDENTS TO GIVE LETTER
OF PERMISSION FOR THE FOURTH BATCH OF MBBS
STUDENTS IN THE PETITIONER INSTITUTION FOR THE
INCREASED INTAKE FROM 100 TO 150 FOR THE ACDADEMIC
YEAR 2014-15 AND ETC.
W.P.Nos.38791-38792/2014
BETWEEN:
1. NITTE UNIVERSITY
UNIVERSITY ENCLAVE
MEDICAL SCIENCES COMPLEX,
DERALAKATTE, MANGALORE,
REP. BY ITS REGISTRAR,
DR. M.S.MOODITHAYA,
S/O M.K.MOODITHAYA,
AGED ABOUT 55 YEARS
5
2. K.S.HEGDE MEDICAL ACADEMY
UNIVERSITY ENCALVE MEDICAL
SCIENCES COMPLEX,
DERALAKATTE, MANGALORE,
REP. BY ITS DEAN,
DR.SATISH KUMAR BHANDARY,
S/O SADASHIVA BHANDARY
AGED BAOUT 59 YEARS
... PETITIONERS
(By Sri K. SHASHIKIRAN SHETTY, SR. ADV. &
MS. FARAH FATHIMA, ADV. FOR
M/S. SHETTY AND HEGDE ASSOCIATES)
AND:
1. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN, C WING,
NEW DELHI-110001
THROUGH ITS SECRETARY
2. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8
DWARKA PHASE 1
NEW DELHI-110077
THROUGH ITS SECRETARY
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO QUASH THE ORDER DTD.15.7.2014 ISSUED BY THE R-1
(ANNEX-A) AND QUASH THE COMMUNICATION DTD.17.5.2014
ISSUED BY THE R-2 TO THE R-1 NOT TO RENEW THE
PERMISSION FOR ADMISSION OF 4TH BATCH OF STUDENTS
FOR MBBS COURSE AGAINST THE INCREASED INTAKE FROM
100 TO 150 IN THE PETITIONER UNIVERSITY FOR THE
ACADEMIC YEAR 2014-15 (ANNEX-B).
6
W.P.Nos.35049-35050/2014
BETWEEN:
1. JSS UNIVERSITY
SRI.SHIVARATHREESHWARA NAGARA,
MYSORE-570 015
REP. BY ITS REGISTRAR,
DR.B.MANJUNATHA,
S/O B.G.BASAPPA,
AGED ABOUT 44 YEARS.
2. JSS MEDICAL COLLEGE
SRI.SHIVARATHREESHWARA NAGARA,
MYSORE-570 015
REP. BY ITS PRINCIPAL,
DR. BASAVAGOWDAPPA
AGED ABOUT 56 YEARS.
... PETITIONERS
(By Sri K. SHASHIKIRAN SHETTY, SR. ADV. &
MS. FARAH FATHIMA, ADV. FOR
M/S. SHETTY AND HEGDE ASSOCIATES)
AND:
1. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE,
NIRMAN BHAWAN, C WING
NEW DELHI-110001
THROUGH ITS SECRETARY
2. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8
DWARAKA PHASE 1
NEW DELHI-110077
THROUGH ITS SECRETARY.
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO QUASH THE ORDER DTD.15.7.2014 ISSUED BY THE R-1
VIDE ANNEX-A AND DIRECT THE RESPONDENTS TO GIVE
7
LETTER OF PERMISSION FOR THE 2ND BATCH OF MBBS
STUDENTS IN THE ACADEMIC YEAR 2014-15.
W.P.Nos.35055-35056/2014
BETWEEN:
1. KLE UNIVERSITY
JNMC CAMPUS, NEHRU NAGAR
BELGAUM-590010
REP. BY ITS REGISTRAR
DR. V D PATIL
S/O DUNDAPPA PATIL
AGED ABOUT 66 YEARS
2. JAWAHARLAL NEHRU MEDICAL COLLEGE
JNMC CAMPUS, BELGAUM-590010
REP. BY ITS AUTHORIZED PRINCIPAL
DR. ASHOK SANGAMESH GODHI
AGED ABOUT 65 YEARS
... PETITIONERS
(By Sri K.SHASHIKIRAN SHETTY, SR. ADV. &
MS. FARAH FATHIMA, ADV. FOR
M/S. SHETTY AND HEGDE ASSOCIATES)
AND:
1. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE
NIRMANBHAWAN, C WING
NEW DELHI-110 001
THROUGH ITS SECRETARY
2. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8
DWARKA PHASE 1
NEW DELHI-110077
THROUGH ITS SECRETARY
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
8
TO QUASH THE ORDER DATED 15.7.2014 ISSUED BY THE R-1
VIDE ANN-A AND DIRECT THE RESPONDENTS TO GIVE LETTER
OF PERMISSION FOR THE FOURTH BATCH OF MBBS
STUDENTS IN THE PETITIONER INSTITUTION FROM 150 TO 200
FOR THE ACADEMIC YEAR 2014-15.
W.P.No.38804/2014
BETWEEN:
SRI SIDDHARTHA MEDICAL COLLEGE
(CONSTITUTENT COLLEGE OF
SIDDHARTHA UNIVERSITY),
(DEEMED TO BE UNIVERSITY
U/S. 3 OF THE UGC ACT), AGALAKOTE,
SIDDARTHA NAGAR,
TUMKUR-572107
REP. BY ITS PRINCIPAL
SRI.A.G.SRINIVASAMURTHY,
AGED ABOUT 63 YEARS.
... PETITIONER
(By Sri CHANDRAKANTH R GOULAY, ADV.)
AND:
1. THE UNION OF INDIA
BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAVAN,
NEW DELHI-77
2. THE MEDICAL COUNCIL OF INDIA
BY ITS SECRETARY,
POCKET NO.14,
SECTOR-8, DWARKA,
NEW DELHI-110077.
3. THE BOARD OF GOVERNORS
BY ITS SECRETARY,
MEDICAL COUNCIL OF INDIA,
POCKET NO.14, SECTOR-8,
NEW DELHI-110077.
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2 & 3)
9
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE IMPUGNED COMMUNICATION DATED 15.7.2014
PASSED BY THE R-1 VIDE ANN-T AS ARBITRARY, ILLEGAL AND
VOID AND ALSO AS UNSUSTAINABLE IN LAW AND ETC.
W.P.Nos.34363-34364/2014
BETWEEN:
1. AKASH EDUCATION & DEVELOPMENT TRUST
PRASHANTH NAGAR, DEVANAHALLI
BANGALORE RURAL DISTRICT-562110
REP. BY ITS SECRETARY
2. AKASH INSTITUTE OF MEDICAL SCIENCES
AND RESEARCH CENTRE & HOSPITAL
DEVANAHALLI,
BANGALORE RURAL DISTRICT-562110
REP. BY ITS DEAN AND PRINCIPAL
DR. SATISHBABU
... PETITIONERS
(By Sri M R NAIK, Sr. COUNSEL FOR
MS. FARAH FATHIMA, ADV. FOR
M/S. SHETTY AND HEGDE ASSOCIATES)
AND:
1. THE UNION OF INDIA
THROUGH THE MINISTRY OF
HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN, C WING
NEW DELHI-110001
REP. BY ITS SECRETARY
2. THE MEDICAL COUNCIL OF INDIA
POCKET 14, SECTOR 8
DWARKA PHASE 1
NEW DELHI-110077
REP. BY ITS SECRETARY
... RESPONDENTS
(By Sri ANIYAN JOSEPH, CGC. FOR R1
Sri N KHETTY, ADV. FOR R2)
10
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO QUASH THE ORDER DTD.15.7.2014 ISSUED BY THE R-1
CONVEYING ITS DISAPPROVAL OF THE SCHEME TO ESTABLISH
NEW MEDICAL COLLEGE FOR THE ACADEMIC YEAR 2014-15
(ANNEX-A) AND ETC.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
ORDER
The legal issues that arise in all these petitions is similar, but it would arise on its distinct facts. As such, it would be appropriate to refer to the brief relevant facts in each of these petitions.
W.P.Nos.34373-74/2014-Kempegowda Institute of Medical Sciences ('KIMS' for short)
2. The petitioner Institution which had the intake capacity of 120 seats for MBBS, secured the increase of intake to 150 seats for the academic year 2012-13 made admissions accordingly. The position remained so for the academic year 2013-14 also. Similar request made for the third batch during the academic year 2014-15 has been turned down by the respondents. 11
3. The sequence leading to the same are, the petitioner made the application for renewal on 25.09.2013. The assessment team of Medical Council of India ('MCI' for short) visited the petitioner Institution on 08th and 09th May 2014. The meeting of the MCI convened to consider the report was postponed to 13th and 14th June 2014. The time frame fixed by the Hon'ble Supreme Court as 15.06.2014 was extended to 15.07.2014 on the request of MCI, by the order dated 06.06.2014. However, in the meanwhile in the meeting dated 13th and 14th June 2014, the MCI recommended not to renew the permission sought by the petitioner. Despite the decision not being communicated, the petitioner on gaining knowledge, furnished the compliance/clarifications on 23.06.2014. The MCI instead of considering the same, had through its general communication dated 24.06.2014 informed the Hon'ble Health Minister that clarifications submitted by the Government Medical Colleges can be verified based on documents without physical verification and in respect of private medical colleges it cannot be verified without 12 physical verification. The Ministry of Health and Family Welfare ('Central Government' for short) by its communication dated 30.06.2014 however sought that the MCI consider all cases and send a detailed report by 10.07.2014 so that the approval/disapproval can be considered on that basis. The Central Government thereafter addressed a letter dated 04.07.2014 to the petitioner to send compliance of the deficiencies pointed out by the MCI or appear on 07.07.2014. The compliance report submitted by the petitioner and forwarded by the Central Government was not verified by the MCI on expressing inability to do so. In that view, the Central Government by the letter dated 15.07.2014 conveyed to the petitioner their decision to disapprove the scheme. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
a) Issue an appropriate writ, order or direction in the nature of certiorari, quashing the decision of the Medical Council of India dated 13.06.2014 as per Agenda item No.119 13 (produced as Annexure-A) and communicated to the Ministry of Health and Family Welfare on 10.07.2014 insofar as it applies only to Government Institutes as being discriminatory, arbitrary, unreasonable and unsustainable in law.
b) Issue an appropriate writ, order or direction in the nature of certiorari, quashing the conveyed decision of disapproval of petitioner's scheme renewal of permission dated 15th July 2014 in File No. U 12012/721/2014-ME (P-II) of the Government of India (produced as Annexure-B) as being discriminatory, arbitrary, unreasonable and unsustainable in law and as consequence thereof direct the respondent to grant renewal of permission for the current academic year.
c) Issue an appropriate, writ order or direction thereby modifying the time limit of 15.06.2014 for the Medical Council of India to make its recommendation to the Central Government and also the time limit of 15.07.2014 for the Central Government to issue its letter of permission and consequently, direct the Medical Council of India to consider the case of the petitioner 14 'private' institute and make a recommendation to the Central Government for renewal of permission for increased capacity of 150 seats.
d) Issue an appropriate writ, order or direction thereby quashing the letter of the MCI dated 14.06.2014 (MCI-37 (1) (R1-36) (UG)/2013- Med/114768 sent to the Ministry of Health and Family Welfare as per Annexure-F1 as being arbitrary and unsustainable.
W.P.Nos.34888-889/2014 - Al- Ameen Medical College & Hospital, Bijapur.
4. The petitioner had the approval for intake of 100 MBBS seats. The increase of intake from 100 to 150 seats was granted for the academic year 2013-14. The petitioner accordingly sought renewal of the same for the second batch for the academic year 2014-15. Pursuant thereto the team of the MCI conducted assessment on 26th and 27th May 2014. In the meeting of the MCI held on 13th and 14th June 2014 certain deficiencies were raised and the letter dated 15.06.2014 was addressed and compliance was sought in three 15 months. Accordingly, much prior to the time frame provided, the petitioner submitted the compliance on 18.07.2014, but even prior to the same the Ministry by the communication dated 15.07.2014 conveyed the disapproval. The manner of the consideration made by the MCI and the Central Government is similar in this case also. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
a) Issue an appropriate writ, order or direction in the nature of certiorari, quashing the decision of the Medical Council of India (1st respondent) dated 13.06.2014 bearing No. MCI-5(2)/2014-Med.Misc as per Agenda item No.17 produced as Annexure-A as being discriminatory, arbitrary, unreasonable and unsustainable in law.
b) Issue an appropriate writ, order or direction in the nature of certiorari, quashing the conveyed decision of disapproval of petitioner's scheme renewal of permission dated 15th July 2014 in File No. U 12012/723/2014-ME(P-II) of the Government of India (2nd respondent) 16 produced as Annexure-B as being discriminatory, arbitrary, unreasonable and unsustainable in law.
c) Issue an appropriate writ, order or direction thereby modifying the time limit of 15.06.2014 for the Medical Council of India to make its recommendation to the Central Government and also the time limit of 15.07.2014 for the Central Government to issue its letter of permission and consequently, direct the Medical Council of India to consider the case of the petitioner 'private' institute and make a recommendation to the Central Government for renewal of permission for increased capacity of 150 seats.
W.P.Nos.38495-496/2014 - Yenopaya Medical College, Mangalore.
5. The petitioner which had the approval for 100 MBBS seats had secured approval for the increase from 100 to 150 seats for the academic year 2011-12, which was again renewed for the academic years 2012-13 and 17 2013-14. The inspection by the assessment team of MCI was carried out on 26.02.2014 to consider approval for the academic year 2014-15. The MCI raised deficiencies on 20.05.2014. The compliance thereof was made and intimated on 27.06.2014. The respondents have thereafter proceeded in a similar manner and the Central Government has by its communication dated 15.07.2014 conveyed its disapproval in a similar fashion. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 15.07.2014 issued by the 1st respondent (Annexure-A).
b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to give Letter of Permission for the fourth batch of MBBS Students in the petitioner institution for the increased intake from 100 to 150 for the academic year 2014-15.18
W.P.Nos.38791-792/2014 - Nitte University (K.S.Hegde Medical Academy)
6. The petitioner Institution had the approval for 100 MBBS seats which was increased to 150 seats during the academic year 2011-12, 2012-13 and 2013-
14. Similar approval was sought for the academic year 2014-15. The assessment team of the MCI visited the petitioner Institution on 11th and 12th April 2014. On 28.05.2014 the MCI pointed out certain deficiencies. The petitioner on gathering knowledge from the website of MCI, submitted the compliance report on 07.06.2014. On 12.06.2014, the MCI once again indicated non-compliance without consideration, which was intimated to the petitioner by the Central Government on 19.06.2014. The petitioner therefore again indicated compliance on 23.06.2014. Similar procedure was followed by the respondents thereafter and the communication dated 15.07.2014 is issued to the petitioner conveying disapproval. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
19
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 15.07.2014 issued by the 1st respondent (Annexure-A).
b) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the communication dated 17.5.2014 in No. MCI.37(1) (R1-38) (UG) 2013-med/07631 issued by the 2nd respondent to the 1st respondent not to renew the permission for admission of 4th batch of students for MBBS Course against the increased intake from 100 to 150 in the petitioner university for the academic year 2014-15 (Annexure-B).
c) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the communication dated 12.06.2014 in No. MCI.37(1) (R1-38) (UG.) 2014-15- med/114638 issued by the 2nd respondent to the 1st respondent not to renew the permission for admission of 4th batch of students for MBBS Course against the increased intake from 100 to 150 in the petitioner university for the academic year 2014-15 (Annexure-C).
d) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to give Letter of 20 Permission for the fourth batch of MBBS students in the petitioner institution from 100 to 150 for the academic year 2014-15. W.P.Nos.35049-050/2014 - J.S.S. Medical College, Mysore.
7. The petitioner which had the approval for intake 150 MBBS seats had secured increase to 200 seats for the academic year 2013-14. The petitioner accordingly made an application dated 24.10.2013 seeking similar approval for the academic year 2014-15. The assessment team of the MCI conducted the inspection on 5th and 6th of May 2014. The MCI raised certain deficiencies which was made known by the Central Government on 04.07.2014 and the compliance was brought to the notice of the Central Government in the hearing held on 07.07.2014. Herein also the subsequent procedure adopted by the respondents was similar and ultimately the Central Government by its impugned communication dated 15.07.2014 has conveyed the disapproval of the scheme for increase of 21 intake. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 15.07.2014 issued by the 1st respondent (Annexure-A).
b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to give Letter of Permission for the 2nd batch of MBBS Students for the academic year 2014-15.
W.P.Nos.35055-056/2014 - K.L.E. University (Jawaharlal Nehru Medical College, Belgaum)
8. The petitioner had secured the approval from the respondents for 150 MBBS seats which was increased to 200 seats during the academic year 2011-
12. Approval was also granted for the academic years 2012-13 and 2013-14. Similar approval was sought for the academic year 2014-15. The assessment team of the MCI visited the petitioner Institution on 22nd and 23rd April 2014. By the communication dated 28.05.2014 22 certain deficiencies were brought out. The petitioner Institution submitted a compliance report dated 11.06.2014. However the MCI without considering the same issued the communication to the Central Government on 13.06.2014 declining to consider the same. The hearing accorded by the Ministry was attended on 07.07.2014. Despite the same, similar procedure was adopted herein as well and the communication dated 15.07.2014 was issued by the Central Government conveying disapproval. The petitioners being aggrieved are therefore before this Court seeking for the following reliefs:
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 15.07.2014 issued by the 1st respondent (Annexure `A').
b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to give Letter of Permission for the fourth batch of MBBS Students in the petitioner institution from 150 to 200 for the academic year 2014-15.23
W.P.No.38804/2014 - Sri Siddartha Medical College, Tumkur.
9. The petitioner Institution which had the sanctioned intake of 130 MBBS seats was permitted an additional 20 seats and as such the intake was 150 seats from the academic year 2010-11 onwards. An increase to 200 seats was sought for the academic year 2013-14. The application was made on 08.05.2012. The non-production of essentiality certificate and consent of affiliation was pointed out as deficiency. Hence another application was made on 27.09.2012 complying with the same and also raising issues with regard to Essentiality certificate which led to writ proceeding. However subsequently an application dated 19.09.2013 was filed seeking the increased intake from 150 to 200 seats for the academic year 2014-15. The MCI sought for particulars by the communication dated 28.11.2013, which was submitted by the petitioner on 27.01.2014. A team of four assessing officers of MCI inspected and submitted a favourable report on 08.02.2014. The petitioner contends that subsequently a single assessor 24 conducted an abrupt inspection and submitted a contrary report based on which a communication dated 04.04.2014 was made by the MCI to the Central Government declining the request. The petitioner is stated to have replied on 08.04.2014 furnishing all particulars, but without considering the same, the disapproval letter dated 15.07.2014 is issued. The petitioner being aggrieved is therefore before this Court seeking for the following reliefs:
a) Issue a writ of certiorari quashing the impugned communication bearing No. File No. U-12012/732/2014-ME(P-II) dated 15.07.2014 passed by respondent No. 1 as per Annexure-T as arbitrary, illegal and void and also as unsustainable in law.
b) Issue a writ of Mandamus to direct the respondents to confirm the intake from 130 to 150 for the present academic year 2014-15 in terms of the letter of permission MCI No. 34(41)/2010-Med/818 dated 12.07.2010 by the 2nd respondent as per Annexure-C and to allow the students admitted for the present academic year 2014-15 with approved intake of 150 for the present academic year 2014-15 as per the 25 Admission List and permit them to commence and complete the course.
c) Direct the respondents to grant approval for further additional intake from 150 to 200 for the academic year 2014-2015 the compliance submitted by the petitioner college on 08.04.2014 and 02.07.2014, as per Annexure-N and Annexure-S respectively.
W.P.Nos.34363-364/2014 - Akash Institute of Medical Sciences, Research Centre & Hospital.
10. The petitioner herein is seeking to set up a new medical college. In that regard the petitioner having set up a medical hospital has secured affiliation from the Health University for MBBS course with 150 intake and the essentiality and feasibility certificate is also obtained from the Government. Accordingly an application seeking permission from the MCI was made on 28.08.2013. The financial arrangement was also made for running such institution. The scrutiny committee of MCI conducted the meeting on 22.01.2014 and sought documents relating to the land and finance. 26 In that regard, all further procedures were followed and ultimately the assessment team of the MCI visited the petitioner Institution on 15th and 16th May 2014. Pursuant thereto the MCI pointed out deficiencies and addressed a communication dated 10.06.2014 to the Central Government. The Central Government addressed a communication dated 20.06.2014 to the petitioner Institution granting an hearing on 26.06.2014. In the meanwhile, the petitioner Institution also submitted the compliance report on 23.06.2014. Despite the same the MCI without considering the case of the petitioner Institution, decided only to consider the case of the Government Colleges and the case of certain other colleges were also considered, but a similar procedure was not followed and the petitioner Institution was issued with a communication dated 15.07.2014 disapproving the scheme for establishment of new medical college. The petitioner having made huge investment is aggrieved by such disapproval and is before this Court seeking for the following reliefs: 27
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 15.07.2014 issued by the 1st respondent conveying its disapproval of the scheme to establish new Medical College for the academic year 2014-
15 (Annexure "A").
b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to grant permission/approval to the scheme for establishment of new medical college for the academic year 2014-15.
c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction modifying the time limit of 15th June 2014 to the Medical Council of India to make its recommendation to the Central Government and also time limit of 15th July for the Central Government.
d) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to consider the petitioners for grant of permission for the academic year 2014-15.
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11. The respondent-MCI has filed its short response affidavit by way of objection to the petitions. At the outset it is contended that the petitions are not maintainable since the time provided as 15.06.2014, by the Hon'ble Supreme Court to MCI to send its recommendation and the last date for the Central Government to grant renewal of permission has also expired. The provisions of The Indian Medical Council Act, 1956 ( 'MC Act' for short) and the various decisions by which the Hon'ble Supreme Court to underline the importance of the standard of medical education to be ensured by the MCI is referred. It is therefore contended that steps taken in that regard is justified. The decision in the case of Mridul Dhar & Another -vs- Union of India [(2005) 2 SCC 65] is referred since it is held therein that the teaching and training in MBBS course must commence from 2nd of August and the last date for making admissions against any stray vacancy is 30th September of each academic year. No admissions are permissible by any authority thereafter. The time schedule provided therein from the stage of receiving 29 applications under Section 10-A of MC Act is relied upon to justify its action in not considering the matter beyond the time prescribed. The decision in the case of Medical Council of India -vs- Manas Rajan Behera (2010 (1) SCC 173 ) and in the case of Priya Gupta
-vs- State of Chhattisgarh [(2012) 7 SCC 433] wherein the adherence to the time schedule is reiterated is also relied on. The decision in the case of Maa Vaishno Devi Mahila Mahavidyala -vs- State of Uttar Pradesh & Others [(2013) 2 SCC 617 ] to the same effect is also referred. In that light it is contended that in the case of Shree Chhatrapti Shivaji Education Society & Another -vs- Medical Council of India & Others (W.P.(C) No.3976/2014, when the disapproval letter dated 17.05.2014 of MCI was challenged, the Delhi High Court on relying upon the said decision of the Hon'ble Supreme Court, by its order dated 03.07.2014 had declined the relief since time frame of 15.06.2014 fixed for recommendation of MCI to the Central Government had expired.
30
12. Having taken up the above common contention in respect of all the petitions, the individual facts are referred thereafter. In that regard the sequence of events with regard to the applications having been made seeking renewal of the increased intake and also about the setting up of the new medical college, the team having inspected and the nature of consideration made by MCI is not disputed. It is however contended that on inspection, the deficiencies were noticed. The nature of deficiency in each of these cases is listed out and it is contended that the said deficiencies are fundamental in nature and cannot be brushed aside in larger public interest. It is contended that the Executive Committee of MCI decided to recommend against grant of approval. The nature of consideration made thereafter by the Central Government is also referred. Since no inspection can be made after 15.06.2014 the MCI has accordingly informed the Central Government by the communication dated 10.07.2014. They, therefore seek to justify their action.
31
13. In the light of the rival contentions, I have heard Sriyuths Nanjunda Reddy, Madhusudhan Naik, Shashi Kiran Shetty, learned Senior Counsel and Chandrakanth Goulay, learned Counsel, on behalf of the respective petitioners. Sriyuths N.Khetty and Aniyan Joseph, learned Counsel were heard on behalf of the respective respondents and perused the petition papers.
14. The emphasis of the contention by the learned Senior Counsel for the petitioners is on the provision contained in Section 10A of the MC Act with regard to provision therein for submission of the scheme to the Central Government and the nature of the consideration that is to be made both by the MCI and the Central Government by providing opportunity to the applicant college. It is contended that the requirement mandated under Sub-sec. (3)(4)and (7) of Sec. 10A has not been complied. In that regard it is contended that opportunity is to be provided both at the end of MCI and the Central Government. The Central Government 32 cannot be bound by the recommendation of the MCI. It is further contended , the Central Government no doubt is required to take the assistance of the MCI to carryout the inspection and assessment of the infrastructure. Thereafter the Central Government should provide opportunity and make its own assessment of the materials and thereafter pass appropriate orders either approving or disapproving the scheme. It is their contention that in the instant case the MCI at the first instance has not provided the opportunity of hearing nor has the MCI adopted the appropriate procedure after the return of the reference from the Central Government. The schedule to the MCI Establishment of Medical College Regulations, 1999 is referred to indicate that the schedule therein provides for the time frame for receipt of applications and the same time frame has been incorporated in the decision of the Hon'ble Supreme Court. It is contended that the time frame fixed is on two different aspects i.e., one with regard to the consideration of the application which is as per the Regulations and the other with regard to the admission 33 process which is fixed by the Supreme Court. It is therefore the submission that 30th September fixed as the last date for admission by the Hon'ble Supreme Court would not be violated if the Central Government exercises its power as contained in the 'Note' to the Regulations for modification of the time schedule by recording the reasons in writing. The fact that there are valid reasons for extending the time is evident from the reasons assigned in the application filed by the Central Government itself before the Hon'ble Supreme Court is the contention.
15. In the backdrop of the contention urged, two aspects would arise for consideration. Firstly, whether the recommendation made by the MCI and the subsequent impugned order/communication of the Central Government is in violation of the mandatory provision and procedure contemplated under Sections 10A (3) and (4) of the MC Act? Secondly, even if this Court arrives at such conclusion in favour of the petitioner Institutions, whether it would be open for this 34 Court to direct reconsideration by the MCI and the Central Government since the last date for admission i.e., 30th September has not expired, without effecting the same? Further, whether such direction is permissible to be issued in view of the time frame fixed by the Hon'ble Supreme Court for completion of the process by MCI and the Central Government?
16. For analyzing the requirement under Sub-sec (3) and (4) of Sec.10A and to notice as to whether the same has been complied, it would be appropriate to refer to the factual matrix arising in W.P.Nos.34373- 74/2014, since in all the cases it is almost similar except for the dates of assessment and the nature of deficiencies raised. The fact that the team visited the petitioner institution on 8th and 9th May 2014 is not in dispute, though in the other writ petitions the date of assessment was on different dates as noticed above while narrating the facts. While assessing the report of the inspection team if the MCI was of the opinion that the scheme is defective and does not contain the 35 necessary particulars so as to make it comply with the requirements under Sub-sec.(7) of Sec.10A, reasonable opportunity is necessary to be provided as contemplated under Sub-sec.(3)(a) of Sec.10A. Thereafter on obtaining the particulars the consideration as to whether the scheme submitted complies the requirement of Sub-sec.(7) is to be made as provided under Sub-sec.3(b) and recommendation thereon is to be made by the MCI to the Central Government.
17. In the instant case, the MCI instead of providing the opportunity as contemplated, after considering the report of the assessor, by its communication dated 14.06.2014 addressed to the Central Government has abruptly recommended not to renew the permission but it was not after considering the compliance report. Subsequently, though the Central Government has accorded a hearing on 07.07.2014 and sent the compliance report submitted by the petitioner Institution to MCI the same has been 36 sent back without consideration on the ground of want of time which will indicate that the opportunity as required has not been provided and the consideration by the MCI is not done as provided under Sub-sec.(3) to Sec.10A. The learned Counsel for the MCI would however contend that the said requirement of providing opportunity is only with regard to the consideration of the scheme as a whole for setting up the college and would not apply to a case of increase in intake. It is therefore contended that in the present process all interaction with the Institution is by the Central Government and not by the MCI.
18. While examining the provision in its entirety to appreciate such contention, in this regard I find that vide Sub-sec.(1) to Sec.10A, both for establishing the medical college and for increase in admission capacity, no doubt, the previous sanction of the Central Government is to be sought. Sub-sec.(2) would however provide that on such application being made, the Central government would refer the same to the Council 37 and it is thereafter the procedure which is necessary to be followed by the Council that is prescribed, which contemplates opportunity to be provided by the Council to the medical college to rectify the defects, if any, specified by the Council. It is only thereafter the Council will consider the scheme after rectification of defects and submit its recommendations to the Central Government. If the deficiencies notified are not rectified to the satisfaction of the Council the adverse recommendation is certainly permissible. But, after the deficiencies are pointed out if the compliance report is submitted which is a permissible procedure, the rejection by the Council can only be after considering the same. If there is refusal to consider the compliance report it would amount to denial of the opportunity available in law vide Sub-sec.(3)(a) and the Council also cannot be considered to have discharged its statutory function.
38
19. The requirement of opportunity from the Council to the medical college to comply with the deficiencies, if any, pointed out even in respect of an application for increase of intake is also to be the understanding of the provision for the reason that MCI Regulations 2000 refers to the scheme for permission of the Central Government to increase the admission capacity and thereby prescribes the procedure which includes evaluation by the Council and it further provides that while evaluating the application, the Council may seek further information, clarification or additional documents from the applicant as considered necessary and shall carry out a physical inspection to verify the information, clarification or additional documents supplied by the medical college. In fact the amendment to Clause 8.3 by the notification dated 16.04.2010 makes it more explicit about the opportunity to rectify the deficiencies and the percentage of deficiency that is permissible/ impermissible when the consideration is for the second and third renewal i.e., third and fourth batch. The 39 entire scheme of things on its proper understanding will therefore indicate that the purpose of the first assessment pursuant to the application is not to declare as to whether the Institution has passed or failed in the assessment and it is not the end of all. Especially in the case of renewal of increase in intake, when approval in the earlier years is granted, that also has to be considered and thereafter, there is also a need to see that the college concerned becomes compliant and that is the purpose of granting opportunity.
20. The learned Counsel for the MCI in that regard also contended that the petitioner Institutions cannot complain of such denial of the opportunity when at the first instance the petitioner Institutions could have invited for the assessment only after complying with the requirement and possessing the infrastructure ready for inspection. The said contention though has force to the extent that required infrastructure must be provided, but as already noticed the inspection and the defects noticed is not the end of the matter, but what is 40 required is to provide reasonable opportunity to rectify the defects. As noticed when the renewal is for the second batch onwards, there would be infrastructure during the earlier year and keeping in view the intake permitted, the Institution will provide the infrastructure as per the Regulations yet the Council may in fact find it not compliant as per the Council. Noticing of the defects, if any, can happen only after the inspection and such defects if notified will have to be rectified as the next procedure as the law provides for the same and the satisfaction or otherwise thereof can be recorded only after the same is examined by the Council if need be based on the documents supplied or after physical inspection. If such re-verification is not made at all, it cannot be assumed that the defects have remained un-rectified. It is another matter that the Council could not complete the said procedure since by then it was beyond 15th of June i.e., the time frame fixed by the Hon'ble Supreme Court, but the fact remains that the procedure contemplated in law had not been complied when it should have been done by the MCI prior to the 41 said date. Only with a view of complying with the time schedule the farce of a consideration was made on 13.06.2014 and recommended disapproval by the letter dated 14.06.2014 addressed to the Central Government. The Council could not have declined to examine the compliance report which had been sent to it by the Central Government. In fact, in respect of Government colleges, both for new college and increase of intake, recommendation for conditional permission has been sent to the Central Government on 10.07.2014 and 12.07.2014 and even in respect of a private medical college on 10.06.2014 (Annexure-P series and Annexure-Q in W.P.Nos.34363-64/2014) and the Central Government has issued the conditional permission on 15.07.2014 and 02.07.2014 respectively. Hence, in any event, the action of the MCI is not only unsustainable but is also arbitrary, discriminatory and violates the statutory provision resulting in denial of the valuable right of the parties concerned. 42
21. Insofar as the consideration by the Central Government as contemplated under Sub-sec.(4) , it is required to consider the scheme and the recommendations of the Council under Sub-sec.(3) after obtaining where necessary, such other particulars as may be considered necessary from the college concerned and thereafter either approve with such conditions, if any, as it may consider necessary or disapprove. The proviso contemplates that the disapproval shall not be made without providing the college concerned reasonable opportunity. In the instant facts, there is no dispute that all the colleges concerned were given the opportunity of hearing by the Central Government on 07.07.2014 wherein the colleges concerned have placed material and particulars contending that the deficiencies pointed out by the Council has been complied. The fact that the Central Government had again referred it to the Council along with the compliance report will demonstrate that the Central Government on hearing the concerned colleges did not find necessary to disapprove the scheme based on the 43 earlier recommendation made by MCI on 14.06.2014, but found it appropriate to refer it back to the Council to re verify and make its recommendation. The Council however being of the opinion that the time fixed by the Hon'ble Supreme Court has lapsed have returned the same on 10.07.2014 expressing their inability to reassess though as noticed above conditional permission is recommended in some cases. The Central Government in such event without applying its mind and reiterating consideration, only with a view to comply with time frame has by its communication dated 15.07.2014 disapproved the scheme exhibiting its helplessness merely because the Council had declined to reassess/verify the compliance report. This would indicate that the Central Government also has not discharged its statutory obligation.
22. The learned Counsel for the MCI on referring to deficiencies raised by the MCI at the first instance would contend that the fact that there were deficiencies would indicate that the petitioners were not ready for 44 the assessment at the first instance when the team of MCI was invited for the same. The "Minimum Requirements for 100 MBBS Admissions Annually Regulations, 1999" is referred to contend that the hand book thereto would provide all the requirements that is to be complied which has not been adhered to. It his further contention that considering the nature of deficiencies listed out by the MCI and the compliance claimed to have been made by the petitioners itself will disclose that the compliance as stated is not trustworthy. In that regard reference is made to the specific deficiencies relating to the staff quarters etc., to contend that the same could not have been complied. On the other hand, the respective learned Counsel appearing for the petitioners also referred to the deficiencies raised by the MCI and contended that most of the deficiencies raised are non existent and are frivolous. Even otherwise, the compliance was made and it was open for the MCI to have inspected is the contention. The learned Senior Counsel for the petitioner in W.P.Nos.34373-74/2014, more particularly 45 sought to refer to the report that was drawn up by the assessing team which did not find any deficiencies, the reliance to the same at the time of argument was no doubt objected to by the learned Counsel for MCI.
23. Though such detailed reference is made to deficiencies and the compliance thereof by all the learned Counsel for the parties, I am of the firm opinion that this Court cannot enter into the arena of taking note of the deficiencies pointed out and further take upon itself, the exercise of examining the documents to return a finding as to whether the compliance has been made by the petitioner Institutions nor is it expected from this Court, more particularly when the MCI itself has not verified the compliance report and thereafter recorded its satisfaction or otherwise. This Court can limit itself only to notice the validity or otherwise of the decision making process adopted by the statutory authorities and not with regard to the decision itself. 46
24. In that regard, when it is evident that irrespective of the nature of deficiencies pointed out by the MCI, when the petitioners claim to have already met the requirement at the first instance itself or when they claim that it has been rectified and when the provision of law examined above provides such opportunity to the medical college concerned to rectify the deficiencies, it is incumbent on the MCI to re-verify/re-examine the matter and arrive at its final conclusion. In the instant case admittedly the re verification has not been made by the MCI as disclosed from the impugned communication of disapproval dated 15.07.2014. In such circumstance the contention put forth by the learned Counsel for MCI cannot cut any ice on that aspect nor can the MCI justify through the counter affidavit. As already noticed, the course adopted by the MCI is not justified. On the concerned medical colleges submitting the compliance report it was incumbent on the MCI to reassess the material or carryout inspection and thereafter a final recommendation ought to have been made. It would have been a different matter if the MCI re-verified the 47 material and yet if it was of the opinion that the deficiencies still existed. In a normal circumstance, when the Court reaches the conclusion that there was denial of opportunity or when there was non-adherence to the statutory provision by the authorities leading to prejudice the logical and permissible course is to remit the matter to the authorities concerned to consider the matter as per law and arrive at its own conclusion. However, in the instant case whether such course is permissible also needs consideration in the light of the time frame prescribed in this regard by the Hon'ble Supreme Court.
25. The learned Senior Counsel for the petitioner, on this aspect, at the outset contended that there was no impediment whatsoever for the Central Government itself to extend the time for the said purpose. It is contended that the time frame fixed by the Hon'ble Supreme Court is on two aspects, one relating to verification process and the other relating to the admission of students. It is his contention that since 48 the 'note' at the foot of the Schedule to the Establishment of Medical College Regulations,1999 provides for modification of the time frame by the Central Government, for reasons to be recorded in writing, in the present circumstance it was open to the Central Government itself to extend the time. To buttress his contention, reliance is placed on the decision of the Hon'ble Supreme Court, in the case of Dr. B.R.Ambedkar Medical College & Others -vs- Union of India & Another [(2013) 10 SCC 280]. A perusal of the said case would no doubt indicate that the exercise of power by the Central Government as per the 'note' to the said schedule to extend the time from 15.07.2013 to 24.07.2013 for receipt of applications only from Government colleges was the issue therein and the challenge was made to the same. It is true that the Hon'ble Supreme Court upheld such action, but it was on the ground that it was made in respect of a class or category of applications which is permissible. I am afraid that the same cannot be made applicable to the case on hand to hold that the Central Government 49 themselves ought to have extended the time and considered the application as the situation herein is not akin and further the application made by the Central Government has in fact been rejected. However, the said decision could be noticed to the extent that even subsequent to the time frame fixed in the case of Mridul Dhar and Priya Gupta, in appropriate circumstance the Hon'ble Supreme Court has not been averse to approve the extension of time.
26. The learned Counsel for the MCI on the other hand has laid emphasis on the directions of the Hon'ble Supreme Court in the case of Priya Gupta -vs- State of Chhattisgarh [(2012) 7 SCC 433] with specific reference to the following paragraphs which read as hereunder:
"40. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which 50 also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations.
41. Inter alia, the disadvantages are:
41(1) xxxxxxx xxxxxxxxxxxx 41(2) xxxxxxx xxxxxxxxxxxx 41(3) The delay in adherence to the schedule, delay in the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.
42. The Medical and Dental Councils of India, the Governments and the Universities are 51 expected to act in tandem with each other and ensure that the recognition for starting of the medical courses and grant of admission are strictly within the time frame declared by this Court and the regulations. It has come to the notice of this Court that despite warnings having been issued by this Court and despite the observations made by this Court, that default and non-adherence to the time schedules shall be viewed very seriously, matters have not improved. Persistent defaults by different authorities and colleges and granting of admission arbitrarily and with favouritism have often invited criticism from this Court.
45. The maxim Boni judicis est causas litium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance.
It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu 52 and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above- stated principles.
47. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:-
47.1) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc. 47.2) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching 53 them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.
47.3) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.
78.4. With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit. We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to convenience of the Court. We may refer the dictum of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences [(2004) 6 SCC 76, para 14] in this regard.
78.5. We have categorically returned a finding that all the relevant stakeholders have failed to perform their duty/obligation in accordance with law. Where the time schedules have not been complied with, and rule of merit has been defeated, there nepotism and manipulation have prevailed. The stands of 54 various authorities are at variance with each other and none admits to fault. Thus, it is imperative for this Court to ensure proper implementation of judgments of this Court and the regulations of the Medical Council of India as well as not to overlook the arbitrary and colourable exercise of power by the authorities/colleges concerned."
27. The learned Counsel for the MCI would further point out that the Delhi High Court in W.P.No.(C) 3976/2014 - Shree Chatrapathi Shivaji Education Society & Another. -vs- Medical Council of India & Others dated 03.07.2014, had declined the direction to MCI and had only directed the Central Government as it was prior to 15.07.2014 and this was to keep in compliance with the directions in Priya Gupta (supra).
28. The learned Senior Counsel for the petitioners relied on the decision of the Hon'ble Supreme Court in the case of Priyadarshini Dental College and Hospital -vs- Union of India and Others [(2011) 4 SCC 623] wherein, though while considering 55 the case relating to the Dental Council, in the circumstance where the High Court of Madras had directed reconsideration by the Government, the Government considered and accorded permission making it subject to approval of the Hon'ble Supreme Court in view the time schedule prescribed in the case of Mridul Dhar. The Hon'ble Supreme Court was of the view that the condition in such manner cannot be made but it would be open to the authority to either grant or not grant. It was ultimately held therein as follows:
"21. Though we have rejected the prayer for `approval' of the order of the Central Government, sought in the writ petition, we are of the view that the petitioner is entitled to a suitably moulded relief. As noticed above, the delay was beyond the control of DCI and the Central Government. The petitioner college was also not responsible for the delay in applying for renewal of permission. The last date for admissions had not yet expired. The order was passed on the direction of the High Court to reconsider the matter. There were several other similar cases pending before the Central Government. All those applications for renewal of permission, which were directed to be 56 reconsidered by the High Court could be considered to be a special category of applications where the Central Government had modified the time schedule for grant of renewal of permissions under Note (2) to the schedule to the DCI Regulations. By so deeming, the order of the Central Government dated 17.8.2010 granting renewal of permissions in this case and other similar cases can be considered as having been validly made."
29. It was also contended on behalf of the petitioners that in the case of Priya Gupta, the issue essentially had arisen in the context of there being illegal admissions and further the case of Priyadharshini was referred therein to emphasise that the process of inspection of colleges, grant of permission should also be done well in advance to allow time for setting right the deficiencies pointed out. It is therefore contended that in the instant case when it is clear that the MCI itself had defaulted in rejecting the case on a day prior to the last date fixed without allowing time to rectify the deficiencies which is permissible in law, their default should not be burdened on the petitioners. It is 57 their case, when such is the position what is to be ensured by this Court is to see that admission process should not be interfered or altered but it would still be open to direct consideration without disturbing the admission and such cases are held in the case of Priyadarshini, to be a separate class.
30. To point out that such course by the Court is permissible, the order dated 29.07.2013 passed in W.P.No.19447/2013 by the Madras High Court, wherein the learned Single Judge had directed reconsideration by MCI was upheld by the Hon'ble Division Bench of that Court in W.A.No.1638/2013 dated 07.08.2013 after referring to Priya Gupta's case. When the same was questioned by the Board of Governors in SLP No.25812/2013. The Hon'ble Supreme Court not only dismissed the appeal but granted two weeks time to comply with the order by staying the contempt proceedings, if any, only for two weeks. The said reconsideration and compliance directed therein by the Court is after 15.07.2013. The learned Counsel for the 58 MCI sought to distinguish the same on facts arising in that case where the Court had arrived at the conclusion that the very manner in which the consideration made by the MCI was erroneous and therefore the direction was issued. Such distinction in my opinion may not be material since the fact of the matter is that after consideration the Court had remanded the matter to the MCI for reconsideration which was subsequent to 15.07.2013 and such order passed by the High Court was not interfered by the Hon'ble Supreme Court. Even otherwise, the contention in the instant case is total non-consideration as per law and not just erroneous consideration by MCI. The learned Counsel for the petitioners has also relied on the order of the Hon'ble Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench in Misc. Bench No. 7504/2014 relating to F.I.S.Maulana Ali Mian Institute of Medical Sciences, wherein the similar order of disapproval dated 15.07.2014 is set aside. 59
31. In the above backdrop, in the fact situation herein I have already arrived at the conclusion that the respondents have not discharged their statutory duty in consonance with law. The very manner in which the MCI has rejected the grant of approval on 14.06.2014 would indicate such action is only with a view comply the time frame which is great injustice caused to the petitioner. The time frame fixed by the Hon'ble Supreme Court in fact is to compel all the stakeholders in the process including the respondents to act within the time frame by completing the process in accordance with law and same is certainly to be adhered. But, such time frame cannot be used as a ruse for not discharging the statutory obligation and thereafter use it as a shield. Being aware that they are bound by the time frame, the initial assessment should have been made well in advance deficiencies should have been pointed out early and sufficient time to rectify should have been provided by MCI as has been held in Priyadarshini's case by the Hon'ble Supreme Court. The only way of addressing this anomaly preventing arbitrariness and ensuring the 60 adherence to time frame in its true spirit would be by the Hon'ble Supreme Court itself prescribing the time frame for notifying deficiencies and compliance of the same and period for re-assessment/re-verification. Whether the petitioners were ultimately entitled to the grant of approval is a matter which cannot be speculated, but certainly they were entitled to an opportunity of reporting their compliance and the report being considered prior to 15.06.2014.
32. The learned Counsel for the MCI contended that the petitioners were also required to comply within time and in the matter of time frame even if a right is there the same will get eclipsed and the remedy would not be available. The remedy no doubt would not be available if the same is barred by limitation and in such case, the person seeking the remedy himself should be wholly guilty of causing the delay. In the instant case, the entire blame cannot be that of the petitioners. Firstly, none of the applications of the petitioners has been rejected for not complying the time schedule but 61 all are cases of deficiencies being pointed out after the initial assessment and not after re-inspection/ re-verification. In that light, what would be relevant is as to whether the MCI had inspected and pointed out the deficiencies well in advance providing sufficient time to comply and despite that there was non-compliance till the last date, which is also to be kept in perspective.
33. In that direction, the default causing delay on the part of the MCI is not far to seek. The very application filed by the MCI before the Hon'ble Supreme Court will disclose the reasons for which they have sought extension of time to complete the process. It is true that there were large number of application and also the present dispensation in the MCI was handicapped by the fact that they were to proceed further only after taking over from the Board of Governors and therefore they cannot be blamed as being negligent, but the fact remains that their delay cannot effect the valuable right of the citizens to thereafter skip the legal procedure. In this case, it is 62 not only the persons administering the Institutions concerned are the effected citizens but also the students who may secure a MBBS seat if an appropriate consideration is made and if the increased seats were available.
34. In that regard, it is seen that though the colleges were to make the applications for consideration before end September 2013, the MCI was re-constituted only on 05.11.2013 and they were thereafter exchanging correspondence with the Central Government with regard to the time schedule etc., which was approved only on 05.12.2013 and the letter dated 30.01.2014 is referred. The draft notification was being processed even during March 2014 and the General elections having caused hindrance in the process is also referred. By letter dated 12.05.2014 the MCI had sought for revised notification to consider the applications. It is also stated that the Board of Governors had not even processed a single application till 05.11.2013. Despite the contention of the learned Counsel for MCI that the 63 colleges were not compliant and therefore are to blame themselves, the reasons noticed above will disclose that except the visit of the assessment team on 8/9th May, 26/27th May, 26th February, 11/12th April 2014, 5/6th May, 22/23rd April, 8th February and 15/16th May 2014 in the respective petitions, there was practically no consideration made by the MCI and meeting of the Executive Committee fixed was on 13.06.2014 to consider the applications. The deficiencies were raised only thereafter which did not provide sufficient time for compliance, yet the petitioners claim to have complied. In fact, in the case in W.P.Nos.34888-889/2014 the letter dated 15.06.2014 was addressed seeking compliance in three months, but the letter dated 15.07.2014 was issued disapproving the scheme even before compliance dated 18.07.2014 was submitted within the time provided.
35. The said application in I.A.No.10/2014 was allowed by the Hon'ble Supreme Court on 06.06.2014. Obviously the application of the petitioners herein had 64 not been considered prior to this but was considered in the meeting dated 13.06.2014 and deficiencies were raised and recommended disapproval which did not provide any time to comply, which is a requirement. On the other hand all that has been done is to adhere to the time schedule by completing their part before the extended date i.e., 15.06.2014 and Central Government has conveyed the disapproval before 15.07.2014 though the procedure required to be followed was not adhered to. In the batch of cases herein, except in W.P.Nos.34363-364/2014 which is seeking for a new college, all other cases are where the renewal sought is for the second to fourth batch of increased intake and if the curtains are brought down in such a fashion without even a re-verification of rectification of the alleged deficiencies, the interest of justice will suffer and any illegal and arbitrary action of the authorities will go unchallenged for no fault of the citizen concerned and without redressal from the justice delivery mechanism which can only embolden the authorities to flout the legal procedures.
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36. This Court is conscious that irrespective of the situation if a an absolute bar of interference even by the High Court is imposed by the Hon'ble Supreme Court this Court is bound to follow without even batting an eyelid. The contents in paragraph 78.4 in my humble opinion does not create such an absolute bar, since the Hon'ble Supreme Court has allowed interim orders only in exceptional cases and it has been left open to dispose of finally so that a final determination could be made and appropriate relief if entitled could be granted in deserving cases, thus allowing legal redressal. This is evident from the fact that the Hon'ble Supreme Court has laid emphasis on para-14 of its earlier decision in the case of Medical Council of India -vs- Rajiv Gandhi University of Health Sciences [(2004) 6 SCC 76] which relates to grant of interim orders. In fact, one other factor which prompts me to conclude in this manner is that, the petitioner in W.P.Nos. 34373- 374/2014 at the first instance had assailed the impugned order dated 15.07.2014 by filing 66 W.P. No.666/2014 before the Hon'ble Supreme Court on the assumption that it would be appropriate for the Hon'ble Supreme Court to address this issue. But, when it was taken up for mentioning on 17.07.2014, leave was granted to withdraw the petition and approach the High Court. If no examination whatsoever was permissible, the Hon'ble Supreme Court would have foreclosed the same without granting liberty as on that day the time frame had expired. But, insofar as the High Courts are concerned, it is clear that even in such circumstance the completion of the admission process in all eventuality before the 30th of September of that year cannot be interfered. In fact the Hon'ble Supreme Court while extending the time at the instance of MCI has also clarified that aspect. Hence, re-verification if ordered cannot interfere with the admission schedule.
37. Since at the first instance, keeping in view the emergent situation, the respondents have made an exception in respect of Government colleges and certain private colleges to issue conditional 67 permission for acceptance of the deficiencies/compliance/ representation/ undertaking without physical verification it could even be open to MCI to consider the case of the petitioners in such fashion for the present academic year, if overwhelming materials are available by making an objective reconsideration. Trust deficit alone should not be the reason to deny a valuable right of re-verification. But, it would also be advisable to make physical verification if need be and time permits.
38. Having reserved the matter, I had made the consideration and the above conclusion based on my analysis and was in preparation for pronouncing the order on 22.08.2014. At that stage, in the afternoon of 21.08.2014, the learned Counsel for MCI furnished to me the copies of three orders passed by the High Court of Judicature at Madras and as such on deferring, I have perused the same as well. In W.P.No.19453/2014 dated 13.08.2014- Tagore Medical College and Hospital-vs-Union of India & MCI; in 68 W.P.No.19131/2014- Madha Medical College and Research Institute -vs- The Union of India & MCI and in the case of W.P.No.19253/2014-Sri Muthukumaran Educational Trust -vs- The Secretary to Government, Ministry of Health and Family Welfare Department & MCI, though the orders dated 15.07.2014 and dated 11.07.2014 have not been interfered and the petitions have been dismissed, it is seen that the colleges therein had in fact approached the Court even before the MCI had considered the compliance report for the purpose for re-verification. In that petition the interim orders to direct the MCI to consider the compliance report was issued, but thereafter the impugned orders were made which was challenged in the subsequent petitions where the Court has considered the correctness of the decision. Rather than the process adopted, in the facts therein it was found that the deficiencies pointed out had not been rectified and the contention of the petitioner was not accepted. Though the legal contentions therein has also been adverted to and 69 reasons are given, I am unable to accept the same in view of the nature of consideration made by me. In any event, I have taken note a decision of a Hon'ble Division Bench of the same Court which directed re-verification during the earlier year and was also upheld by the Hon'ble Supreme Court.
39. Therefore, taking all aspects into consideration when it is found that the right of the petitioners has been denied without opportunity the orders impugned are liable to be quashed. Further, having taken note of the observations of the Hon'ble Supreme Court relating to the re-verification ordered by the Madras High Court after 15th June has not been interfered by the Hon'ble Supreme Court, the re- verification is necessary to be ordered herein without interfering with the completion of the admission process as scheduled.
40. For all the afore stated reasons, I pass the following:
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ORDER
(i) The W.P.Nos.34373-374/2014, 34888-
889/2014, 38495-496/2014, 38791-792/2014, 35049-050/2014, 35055-056/2014, 38804/2014 and 34363-364/2014 are allowed in part without order as to costs.
(ii) The letter addressed by the MCI to the Central Government dated 10.07.2014 and 12.07.2014 in the case of each the respective petitioners herein returning the reference made by the Central Government to reassess/re-verify the compliance report is held to be unsustainable.
(iii) Consequently, the letter dated 15.07.2014 addressed to each of the petitioners by the Central Government impugned herein, conveying disapproval in view of such refusal by MCI to consider the reference stands quashed.
(iv) Consequent thereto, a direction is issued to the respondent-MCI to consider the reference 71 made by the Central Government along with the compliance report submitted by each of the above noted petitioners and reassess /re- verify the same in accordance with law and re-submit the recommendation to the Central Government on or before 03.09.2014.
(v) On receipt of the recommendation from the MCI, the Central Government shall consider the same in accordance with law, pass and communicate the order to the petitioners on or before 06.09.2014.
(vi) It is made clear that the compliance of the above directions and the orders passed thereto shall not in any manner violate the time schedule in respect of the admission process.
Sd/-
JUDGE LRS/hrp/bms