Gujarat High Court
Nootan Sarva Vidyalaya Kelavani Mandal vs Union Of India on 29 June, 2018
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/6517/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6517 of 2018
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NOOTAN SARVA VIDYALAYA KELAVANI MANDAL
Versus
UNION OF INDIA
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Appearance:
MR SHALIN MEHTA SR.ADV. WITH MR HEMANG M SHAH(5399) for the
PETITIONER(s) No. 1
MS ML SHAH LD. GOVERNMENT PLEADER WITH MR VENUGOPAL
PATEL AGP (1) for the RESPONDENT(s) No. 2
MR SIDDHARTH DAVE FOR MR DEVANG VYAS LD. ASST. SOLICITOR
GENERAL OF INDIA (2794) for the RESPONDENT(s) No. 1
MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 29/06/2018
ORAL ORDER
1. By way of the present petition under Article 226 of the Constitution of India, the petitioner challenges the decision dated 22.11.2017 and also decision dated 31.05.2018 passed by respondent Nos.3 - Medical Council of India (for short, the 'M.C.I.') and respondent No.1 - Union of India (for short, the 'U.O.I.') respectively rejecting the application submitted by the petitioner for establishing a new self-financed medical college at Visnagar, Mehsana, Gujarat and pending hearing of the present petition, the petitioner also seeks to stay operation, implementation and execution of the said orders, to direct the M.C.I. to carry out inspection and other formalities on or before 30.05.2018 as well as to direct the M.C.I. to issue/grant Letter of Permission pending the inspection and other formalities of the infrastructure of the self-finance medical college set up by the petitioner institution.
Page 1 of 16 C/SCA/6517/2018 ORDER2. Learned Senior Counsel Mr.Shalin Mehta appearing with learned advocate Mr.H.M. Shah for the petitioner, after inviting attention of the Court to the various communications and decisions rendered in the matter of establishment of new medical college, would submit that the petitioner had submitted an application dated 07.07.2017 for establishing a new self-financed medical college for the academic year 2018- 19 for M.B.B.S. Course. Vide communication dated 06.09.2017, the respondent No.3 - M.C.I. has pointed out certain deficiencies/defects in the application and disapproved the scheme under Section 10A of the Indian Medical Council Act, 1956 (for short, the said 'Act'). According to learned Senior Counsel Mr.Shalin Mehta, the petitioner was not addressed the said decision of the respondent No.3 - M.C.I. but, the petitioner came to know about the same only on 26.09.2017. Thereafter, the petitioner remained present on 04.10.2017 for personal hearing alongwith necessary information/documents. The petitioner also sought re-appointment on 05.10.2017 which was also granted on 10.10.2017. According to him, though the respondent No.1 - U.O.I. resolved that respondent No.3 - M.C.I. should review its decision, the respondent No.3 - M.C.I., without calling upon the petitioner, once again rejected the application on 22.11.2017 which, the petitioner came to know on 25.12.2017. As per say of learned Senior Counsel Mr.Mehta, as the petitioner came to know about decision dated 22.11.2017 on 25.12.2017, the petitioner made a request to reconsider the application for establishment of a new college but, no information was provided to the petitioner and, therefore, the petitioner has filed present petition on 20.04.2018.
Page 2 of 16 C/SCA/6517/2018 ORDER3. Learned Senior Counsel Mr.Mehta drew attention of the Court to the orders dated 09.05.2018, 30.05.2018 and 04.06.2018 passed by this Court at the admission stage of the matter. It seems that as per communication dated 16.10.2017 addressed by the respondent No.1 - U.O.I. to respondent No.3 - M.C.I., the respondent No.1 - U.O.I. has found the scheme in order and recommended respondent No.3 - M.C.I. to consider the application and request the committee to furnish its recommendations accordingly to respondent No.1 - U.O.I. Thereafter, the respondent No.3 - M.C.I. took up the matter for review and rejected the application on 22.11.2017. According to learned Senior Counsel Mr.Mehta, despite letter dated 16.10.2017 issued by respondent No.1, respondent No.3 - M.C.I. did not approve the scheme and, therefore, respondent No.1 - U.O.I. disapproved the petitioner's scheme for the academic year 2018-19 citing that;
"(i) Consent of Affiliation in the prescribed format was not attached with the application and is now enclosed in the prescribed format but on the same date and number i.e. 20.06.2017.
(ii) Due Diligence Certificate of Advocate is issued only on 03.10.2017.
(iii) The Supreme Court hald vide judgment dated 20.08.2015 in WP(C) No.705/2014 [Royal Medical Trust and Anr. V/s. Union of India and Anr.] and judgment in SLP(C) No.15043/2015 Padmashree Dr.D.Y. Patil Medical College V/s. Medical Council of India & Anr. that incomplete applications be rejected."
4. Learned Senior Counsel Mr.Mehta would submit that disapproval of the scheme was on technical grounds, as aforesaid and despite respondent No.1 - U.O.I. found the scheme in order, there was no reason for respondent No.1 -
Page 3 of 16 C/SCA/6517/2018 ORDERU.O.I. to disapprove the scheme vide communication dated 31.05.2018 which is annexed at Annexure-R to the present petition. Lastly, he also placed on record certain approval of schemes of some other colleges wherein, approval is issued after 31.05.2018 by the respondent No.1 - U.O.I.
5. In response to the show-cause notice, respondent Nos.1 and 3 have filed their reply affidavits, inter alia, stating that the Executive Committee of respondent No.3 - M.C.I. reiterated its decision dated 06.09.2017 in its communication dated 22.11.2017. According to respondent Nos.1 and 3, the petitioner is required to submit complete application as per the provisions of the said Act and Regulations made thereunder before cut-off date i.e. 07.07.2017 to the Central Government. It is a matter of fact that the petitioner has submitted an application/scheme seeking permission for establishment of a new self-financed Medical College at Mehsana for the academic year 2018-19 on 07.07.2017 without providing valid Consent of Affiliation in the prescribed format and required land documents including due diligence certificate of the advocate. It is the case of the answering respondents that letter dated 20.06.2017 bearing letter No.SPU/MEDICAL/158/2017-18 was not valid Consent of Affiliation as it was not in prescribed format of Form-3 of the Establishment of Medical College Regulation, 1999. It is the case of the answering respondent No.3 - M.C.I. that Consent of Affiliation as submitted to the Central Government during hearing on 04.10.2017 is also dated 20.06.2017 and also bears the same letter number and, therefore, it is not possible for any recognized University to issue firstly letter dated 20.06.2017 on the same issue and thereafter, issue a Page 4 of 16 C/SCA/6517/2018 ORDER purported backdated Consent of Affiliation bearing the same letter number as well as same date of 20.06.2017. So, it is contended by both the answering respondents that the petitioner - college in collusion with the University, is trying to hoodwink the respondents in illegally procuring the letter of permission to establish the new medical college. As per say of the answering respondents, the petitioner - college could not submit complete application by 07.07.2017 and to match the time frame as fixed by the Hon'ble Apex Court in the case of Ashish Ranjan and others V/s. Union of India and others reported in (2016)11 SCC 225 and to show that, it has complied with the requirement of submitting the scheme in time, the petitioner got obtained same dated and same numbered letter dated 20.06.2017 on the same issue from the University. It is specifically stated by the answering respondents that the respondents are required to follow the strict adherence of time schedule for processing the application and grant of permission for which, the respondents have placed reliance on various pronouncements, more particularly, cited in para 11 of the reply of respondent No.3 - M.C.I. The respondent No.3 - M.C.I. further stated that the last date of 30.04.2018 for sending final recommendations for letter of permission by the respondent No.3 - M.C.I. for issuing letter of permission by the Central Government for the academic year 2018-19, as laid down by the Hon'ble Court in the case of Ashish Ranjan (supra), is already over and, therefore, the petitioner has not made out a case to grant any interim relief at this stage i.e. after expiry of the time limit fixed for final recommendation for letter of permission by the respondent No.3 - M.C.I. and also for issuance of letter of permission by the Central Government i.e. 30th April and 31st Page 5 of 16 C/SCA/6517/2018 ORDER May.
6. Having heard submissions made at bar, considering the pleadings, communications exchanged between the parties, documents placed on record and the principles settled in the various pronouncements cited in the pleadings and placed on record, it is a matter of fact that the petitioner is required to submit the complete application under Section 10A of the said Act for establishment of a new Medical College with the Central Government between 15.06.2017 to 07.07.2017. As held in the case of Union of India V/s. All India Children Care and Educational Development Society reported in (2002)3 SCC 649, it is settled therein that it is only such applications which are complete in all respect as per the qualifying criteria, deserve to be treated as application under Section 10A of the Act which then become eligible for consideration. The second stage is such that complete applications received by the Central Government between 15.06.2017 to 07.07.2017 are required to be forwarded to the M.C.I. before 15.07.2017. Upon receipt of such complete application from the Central Government on or before 15.07.2017, the respondent No.3 - M.C.I. is required to undertake exercise to evaluate those applications, technical scrutiny and conducing inspections for sending the recommendation to the Government for grant of letter of permission. This exercise has to be completed by the respondent No.3 - M.C.I. on or before 15.12.2017 and this time stage is absolute imperative. As per the settled principle, two months' time from the receipt of recommendation from the respondent No.3 - M.C.I. but, not beyond 31.01.2018 is provided to the petitioner for sending reply/compliance to the Central Government, for personal hearing and forwarding of Page 6 of 16 C/SCA/6517/2018 ORDER compliance by the Central Government to the respondent No.3
- M.C.I. Thereafter, the final recommendation for letter of permission has to be made by the respondent No.3 - M.C.I. by 30.04.2018. Lastly, the statutory time schedule permits the Central Government to issue Letter of Permission to Medical College for establishment of new college on or before 31.05.2018. It appears that the petitioner failed to submit complete application in all respect. Not only that, the petitioner could obtain Consent of Affiliation dated 20.06.2017 from the University which bears the same letter number and on the same issue and placed the same during the hearing on 04.10.2017. So, meaning thereby, the petitioner has procured the letter of the same number and on the same issue and placed it for consideration having difference in the contents of the letter. For ready reference, both the letters bearing same number and same date, are reproduced hereinunder (annexed at page - 507 and 510 to the present petition) "No.SPU/MC/Proposed/158/2017-18 Date: 20/06/2017 To, The Secretary, Nootan Sarva Vidyalaya Kelavani Mandal, Visnagar - 384315, Gujarat Subject: Letter of consent for proposed New Self- finance (green Field) Medical College.
Ref.: Your Letter No.: 304/2017-18 dated 19/06/2017 Dear Sir, With regard to above mentioned subject, this is to hereby refer that this office has received your above-mentioned letter regarding the application for establishment of New Self-finance (Green Field) Medical College with hospital at Sankalchand Patel Vidyadham, Visnagar by our trust i.e. Nootan Sarva Vidyalaya Kelavani Mandal.
Page 7 of 16 C/SCA/6517/2018 ORDERFurther to state that as per the approval of competent authorities, the university hereby gives consent for the affiliation of new Self-Finance (Green Field) Medical College as a proposed constituent institute of Sankalchand Patel University, Visnagar."
AND "No.SPU/Medical/158/2017-18 Sankalchand Patel University Place:-Visnagar Date: 20/06/2017 CONSENT OF AFFILIATION On the basis of the report of the Local Inquiry Committee the Sankalchand Patel University has agreed, in principle, to affiliate the proposed Nootan Medical College and Research Centre to be established at Sankalchand Patel Vidyadham, Visnagar in Visnagar Taluka, District: Mehsana (North Gujarat), India by the Nootan Sarva Vidyalaya Kelavni Mandal subject to grant of permission by the Government of India, Ministry of Health and Family Welfare, New Delhi under/Section 10(A) of the Indian Medical Council Act, 1956 (102 of 1956)."
7. The Hon'ble Apex Court in the case of Royal Medical Trust & Anr. V/s. Union of India & Anr. reported in (2015)10 SCC 19, more particularly, in para 31(A), has observed as under:-
"31(A). Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfill these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfill the basic requirements would be considered at the next stage."
8. So, looking to the facts of the present case, it appears that the petitioner has submitted incomplete application on one hand and further, obtained letter dated 20.06.2017 having same number but, with different contents from the University Page 8 of 16 C/SCA/6517/2018 ORDER with a view to meet with the time limit fixed by the Hon'ble Apex Court in the case of Ashish Ranjan (supra). Vide communication dated 11.04.2018 addressed to the respondent No.1 which is annexed at Annexure-R-I/2 at page 681 to the present petition, it appears that the respondent No.3 - M.C.I. has rejected the application of the petitioner and further, reiterated its decision on 22.11.2017. No doubt, the respondent No.1 - U.O.I. has tried to confirm from the respondent No.3 - M.C.I. that whether, it has followed the provisions of Section 10A(3) of the said Act in respect of the petitioner's case, more particularly, on the issue of "Deficient C.O.A.". Upon analysis of the pleadings and documentary evidence placed on record, it appears that the respondent - M.C.I. has extended an opportunity to the petitioner to obtain proper Consent of Affiliation from the University in a prescribed format. But, instead of availing the opportunity, the petitioner got obtained Consent of Affiliation of backdated from the University bearing the same number and on the same issue and place it for consideration in the meeting on 04.10.2017. Such conduct on the part of the petitioner deserves to be deprecated as there was no reason to do so. Apart from it, the Court is not inclined to grant any interim relief of the nature, as sought for, by the petitioner because, the last date for issuance of letter of permission under Section 10A of the Act for establishment of a new Medical College was 31.05.2018 which is already over.
9. The Hon'ble Apex Court, in the case of Dental Council of India V/s. Dr.Hedgewar Smruti Rugna Seva Mandal, Hingoli and others reported in AIR 2017 SC 1826, has observed in para 19 as under:-
Page 9 of 16 C/SCA/6517/2018 ORDER"19. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the court grants approval in a way which is the subject matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.
10. Even otherwise, the Hon'ble Apex Court observed that Order XXXIX of the C.P.C. would not be applicable at the stage of granting interim relief in a petition under Articles 226 and 227 of the Constitution of India and, in the case of Morgan Stanley Mutual Fund V/s. Kartick Das reported in (1994)4 SCC 225, after considering the various authorities, the Hon'ble Apex Court laid-down the guiding principles in relation to grant of ad-interim injunction, which are as under:-
"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The Page 10 of 16 C/SCA/6517/2018 ORDER factors which should weigh with the court in the grant of ex parte injunction are--
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction would be for a limited period of time;
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court."
Apart from Order XXXIX of the C.P.C. with regard to medical education, the Hon'ble Apex Court, in the case of Shivaji University V/s. Bharti Vidyapeeth & Ors. reported in (1999)3 SCC 224 and in the case of Medical Council of India, New Delhi V/s. State of H.P. & Anr. reported in (2000)5 SCC 63, observed that since the refusal was based on deficiencies for running a medical college, it would have been appropriate for the High Court to have remitted the matter to the Medical Council of India or the Union of India for reconsideration. Even if it was of the opinion that the order of the Medical Council of India deserve to be set aside and the Court ought not to have issued a writ of mandamus directing granting permission. So, on both Page 11 of 16 C/SCA/6517/2018 ORDER these counts, the petitioner is not entitled to interim relief since after rejection of application on 22.11.2017, the petitioner did not step in or move a step ahead till the present petition is filed in the month of April, 2018.
11. Not only that, the petitioner could not submit complete application by 07.07.2017 and in any event, the Consent of Affiliation has been submitted on 04.10.2017 during the hearing which was forwarded to the answering respondents vide Central Government letter dated 16.10.2017 i.e. after 07.07.2017 which was the last date by which, the applications complete in all respects as per the Regulations had to be submitted to the Central Government. Thus, the petitioner failed to observe strict adherence of time schedule for processing the application and, therefore, there is no reason on the part of this Court to interfere with the impugned order of rejection of the scheme for academic year 2018-19.
12. Thus, it is crystal clear that as per the M.C.I's regulations, the petitioner is obliged to fulfill all the mandatory/statutory preconditions alongwith the submission of all the requisite documents including the Consent of Affiliation etc., as provided for in the qualifying criteria of Statutory Regulations of MCI - Establishment of Medical College Regulations, 1999 for being eligible to make an application under Section 10A of the said Act. It seems that the petitioner's application did not meet the qualifying criteria which is not required to be considered and rightly not considered. Suffice it to refer to the observations made by the Hon'ble Apex Court in the case of Dental Council of India V/s. S.R.M. Institute of Science and Technology reported in (2004)9 SCC 676, relevant part of which, reads as Page 12 of 16 C/SCA/6517/2018 ORDER under:-
"..... 10. In this case, the High Court made an interim order to complete the processing of the application including inspection even in the absence of the permission or essentiality certificate from the State Government in terms of the Regulations framed by the Dental Council of India. The process of the Courts or the process of law should not be allowed to subvert the law. In cases of recognition of Dental Colleges or starting of higher courses, this Court has in several cases including Islamic Academy of Education and State of Maharashtra v. Indian Medical Associate etc. held that they are of mandatory character and have got to be complied with. When that is the position in law, the High Court ought not to have made an interim order to process the application even in the absence of the permission or essentiality certificate because the application will not be complete without being accompanied by permission or essentiality certificate by the State Government along with certain other documents. An incomplete application cannot be processed either by the Central Government or by the Dental Council....."
13. Needless to say that as per the statutory time schedule with regard to processing of application under Section 10A of the said Act, every complete application, fulfilling all the conditions of the statutory qualifying criteria including all the documents, required a period of full one year for conducing necessary process and for grant of permission under Section 10A of the Act after the petitioner becomes entitled to make admissions in the course.
14. In the case of Medical Council of India V/s. V.N. Public Health and Educational Trust & Ors. reported in (2016)11 SCC 216, the Hon'ble High Court of Kerala directed the respondents therein to consider the application for establishment of a medical college and took into consideration the revised essentiality certificate submitted by the medical college after Page 13 of 16 C/SCA/6517/2018 ORDER last date i.e. 30.09.2015 for submitting complete application/scheme under Section 10A of the said Act was over. The respondent No.3 - M.C.I. being aggrieved by the said directions passed by the Hon'ble High Court of Kerala, approached the Hon'ble Apex Court, which has held in paras 16-17 as under:-
"16. The impugned order [Medical Council of India v. V.N. Public Health & Educational Trust, 2016 SCCOnline Ker 431] passed by the High Court is to be tested and adjudged on the anvil of the aforesaid authorities. The application for grant of approval was filed with the Essentiality Certificate which was a conditional one and, therefore, a defective one. It was not an Essentiality Certificate in law. In such a situation, the High Court could not have directed for consideration of the application for the purpose of the inspection. Such a direction, we are disposed to think, runs counter to the law laid down in Educare Charitable Trust [Educare Charitable Trust v. Union of India, (2013) 16 SCC 474: AIR 2014 SC 902] and Royal Medical Trust [Royal Medical Trust v. Union of India, (2015)10 SCC 19]. We may further proceed to state that on the date of the application, the Essentiality Certificate was not in order. The Schedule prescribed by the MCI, which had been approved by this Court, is binding on all concerned. MCI cannot transgress it. The High Court could not have gone beyond the same and issued any direction for conducting an inspection for the academic year 2016-
17. Therefore, the directions issued by the learned single Judge and the affirmation thereof by the Division Bench are wholly unsustainable.
17. Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside. It will be open to the Trust to submit a fresh application for the next academic year in consonance with the provisions of the Regulations of the MCI and as per the time Schedule; and in that event, it will be considered appropriately. In the facts and circumstances of the case, there shall be no order as to costs."Page 14 of 16 C/SCA/6517/2018 ORDER
15. It is also important to note here that no relief can be granted to the petitioner for the academic year 2018-19 as the petitioner being aware that the petitioner's application was returned reiterating the earlier decision of recommending disapproval of the scheme under Section 10A of the said Act on 22.11.2017. Admittedly, the petitioner has instituted the petition on 20.04.2018 and, therefore, the petitioner had acquiesced for some time and in such circumstances, no relief can be granted to the petitioner by way of interim relief.
16. The petitioner gave much emphasis to the averments made in para 21 of the reply filed by the respondent No.1 - U.O.I. wherein, it is stated that respondent No.1 - U.O.I. had no intention of delaying the matter and orders could not be passed by 21.05.2018 since it was in the process of making the respondent No.3 - M.C.I. to agree to the view of respondent No.1 - U.O.I. that the scheme of the petitioner - Trust should not be rejected solely on the ground that Essentiality Certificate or Consent of Affiliation or other documents submitted at the time of making the application were defective, since the petitioner was able to cure the defects and submit a valid document subsequently on being given an opportunity to rectify such defects. Such averments made in para 21 made with a view to explain the delay caused in complying with the Court's earlier order. But, in any case, the respondent No.3 - M.C.I. extended an opportunity to the petitioner to rectify the defects in compliance of the provisions of Section 10A(3) of the I.M.C. Act but, as stated hereinabove, the petitioner has played some mischief in obtaining the Consent of Affiliation from the University bearing the same number and same date and placed it at the time of meeting Page 15 of 16 C/SCA/6517/2018 ORDER held on 04.10.2017. So, in that view of the matter also, the Court is not inclined to consider the interim relief, as prayed for, by the petitioner so as to issue order/direction to the respondents to issue a letter of permission after expiry of the last date i.e. 31.05.2018 and, therefore, prayer for interim relief, pending hearing of the present petition, is hereby refused.
17. Before parting with the order, it requires to be noted that learned Senior Counsel Mr.Shalin Mehta placed reliance on certain communications of respondent No.1 in the form of Letter of Permission dated 10.06.2016 issued in favour of Parul University and others. Since such Letters of Permission issued in favour of Parul University and American International Institute of Medical Sciences are not the subject matter in present case, the Court is not inclined to consider the same as the same are not part of pleadings.
18. However, it is clarified that the petitioner is at liberty to file/submit fresh scheme/application for establishment of a new Medical College in the next academic year 2019-20 in accordance with the provisions of the said Act and Regulations made thereunder.
S.O. to 04.09.2018.
(S.H.VORA, J.) Hitesh Page 16 of 16