Calcutta High Court (Appellete Side)
West Bengal University Of Health ... vs Indian Centre For Advancement Of ... on 30 August, 2013
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mrs. Justice Nishita Mhatre
And
The Hon'ble Mr. Justice Kanchan Chakraborty
AST No. 221 of 2012
West Bengal University of Health Services & Anr.
-Vs.-
Indian Centre for Advancement of Research and Education,
Haldia & Ors.
with
AST No. 239 of 2012
State of West Bengal & Ors.
-Vs.-
Indian Centre for Advancement of Research and Education,
Haldia & Ors.
and
CAN 8737 of 2012
with
MAT No. 1516 of 2012
Board of Governors in Super-session of Medical Council of India &
Ors.
-Vs.-
Indian Centre for Advancement of Research and Education & Ors.
and
CAN 7311 of 2013
with
W.P. No. 25229 (W) of 2012
Sweety Som
-vs.-
State of West Bengal & Ors.
with
W.P. No. 4481 (W) of 2012
Devasmita Chakraborty & Ors.
-Vs.-
The State of West Bengal
and
CAN No.8804 of 2012
with
W.P. No. 2030 (W) of 2012
Indian Centre for Advancement of Research and Education,
Haldia & Ors.
-Vs.-
The State of West Bengal & Ors.
With
MAT No. 1998 of 2012
Board of Governors in Super-session of Medical Council of India &
Ors.
-Vs.-
Devasmita Chakraborty & Ors.
and
CAN No. 1088 of 2013
and
CAN No. 11771 of 2012
For the Appellants : Mr. Saugata Bhattacharya
Mr. Sunit Kumar Roy
Ms. Debopama Mukherjee
For the Respondent
No.1/ICARE Society : Mr. Samaraditya Pal
Mr. Bikash Ranjan Bhattacharyya
Mr. Anindya Sundar Das
Mr. S. M. Hassan
Ms. Binita Meheria
Mr. Dharmeswar Mishra
For the Respondent
No.2/ICARE College : Mr. S.K. Kapoor
Mr. Lakshmi Gupta
Mr. Goutam Dey
Mr. Ashok Jena
Mr. Probir Majhi
Ms. Soochandra Chakrabarti
Mr. Soumyajyoti Nandy
For the Petitioner in WP
No. 4481(W) of 2012 : Mr. Arunabha Ghosh
Mr. A. Lahiri
For the West Bengal University
of Health Sciences : Mr. Bimal Kumar Chatterjee,
learned Advocate General
Mr. Ashok De
Mr. Joydeep Kar
Mr. Shamim Ul Bari
For the State : Mr. Ashoke Kr. Banerjee
Mr. Subrata Talukdar
Mr. T.M. Siddiqui
For the Petitioner in WP
No. 25229 (W) of 2012 : Ms. Sutapa Sanyal
Mr. Arijit Roy
Heard On : 11.07.2013, 19.07.2013, 26.07.2013,
01.08,2013, 02.08.2013, 05.08.2013
Judgement on : 30.08.2013
Nishita Mhatre, J. :
1. All these matters arise from the judgment and order of the learned single judge (Gupta, J.) dated 1st August, 2012 delivered in W.P No. 2030(W) of 2012 filed by the Indian Centre for Advancement of Research and Education, Haldia (hereinafter referred to as 'ICARE') and the ICARE Institute of Medical Science and Research, Haldia (hereinafter referred to as 'the College'). MAT No. 1516 of 2012 is an appeal preferred by the Medical Council of India (hereinafter referred to as 'MCI') against the judgment of the learned single judge. AST 221 has been preferred by the West Bengal University of Health Science (hereinafter referred to as 'the University'). AST 239 is an appeal preferred by the State of West Bengal. W.P. No. 4481(W) of 2012 has been filed by seventy seven students of the College while W.P. No. 25229(W) of 2012 has been filed by one student. MAT No. 1998 of 2012 is an appeal filed by the MCI against the judgment of another learned single judge (Aniruddha Bose, J.).
The Facts
2. ICARE wanted to establish a Medical College and hospital at Haldia. It took steps to complete the formalities required by the MCI for establishing a Medical College in accordance with the Medical Council of India Establishment of Medical College Regulations, 1999 (hereinafter referred to as 'MCI Regulations') and the Minimum Standard Requirements For The Medical College for hundred admissions annually Regulations, 1999 (for brevity the Minimum Standard Requirements Regulations). There was some delay in setting up the Medical College although some of the structures required for the Medical College were available. ICARE therefore decided to set up a Dental College. It was thus established on an adjoining property and became operational from the year 2006. Some of the departments of the Dental College were housed in a portion of the properties of the Medical College.
3. An application was submitted by ICARE on 7th July, 2010 to the State Government for issuing the essentiality certificate which is one of the prerequisites under the MCI Regulations for setting up a Medical College. After inspection and evaluation of the application submitted, the officers of the Health Department of the Government of West Bengal issued an essentiality certificate on 6th August, 2010 for setting up a Medical College at Haldia with an annual intake of hundred students.
4. The University issued a consent letter of affiliation of the Medical College subject to the grant of permission by the Government of India under Section 10A of the Indian Medical Council Act, 1956. This letter of affiliation was issued on 13th August, 2010.
5. ICARE then applied to the MCI for the letter of permission to commence a Medical College on 24th September, 2010 proposing to make it operational from the academic year August, 2011 to July, 2012. Extensive inspection and assessment of the infrastructural facilities, clinical materials, patients, teaching and non-teaching staff and other necessities was carried out by the assessors of the MCI. The assessment report was issued on 22nd/23rd March, 2011 indicating some minor deficiencies. ICARE was directed to remove the deficiencies by a letter dated 27th April, 2011 by the MCI. A compliance report was filed by ICARE on 10th May, 2011, after which a second inspection was carried out by the MCI on 24th May, 2011. On being satisfied and on verification of the assessment reports, the MCI issued a letter of permission to ICARE for establishing a Medical College on 30th June, 2011. Thus, ICARE was permitted to admit the first batch of hundred students for the academic session 2011-12.
6. ICARE then applied to both, the Fee Fixation Committee to approve its fee structure, as well as to the Committee for monitoring the admission process between 7th July, 2011 and 26th August, 2011 in order to enable it to admit students. The affiliation granted by the University earlier was renewed in favour of the ICARE on 18th August, 2011 after it was informed that the MCI had issued a letter of permission. Since there was no response from either the Fee Fixation Committee or the Committee monitoring the admission of students, ICARE published its admission notice indicating that it would admit students to its Medical College. This was done because the cut-off date for completion of the admissions was 30th September, 2011. However, the Government of West Bengal prohibited the admission process by an order dated 29th August, 2011. Challenging that order, ICARE moved W. P. No. 385(W) of 2011 before the Supreme Court under Article 32 of the Constitution of India on 7th September, 2011. The Supreme Court by its orders dated 16th September, 2011 and 28th September, 2011 permitted ICARE to admit students in accordance with the merit list prepared by it to the extent of 50 per cent of the total students available. The remaining 50 per cent of the seats were directed to be filled in by the students allotted by the State. However, the State declined to send students to the College and therefore, the Supreme Court permitted ICARE to fill the all the hundred seats subject to certain conditions. ICARE, thus, admitted 88 students to the first year of the MBBS course for the year 2011-12 in its College.
7. Certain objections were raised by the State Government regarding the lack of infrastructure for the College because of the existence of a Dental College within the premises of the Medical College building. The Supreme Court, therefore, directed a joint inspection of the College by both the MCI and the Dental Council of India (for brevity DCI) of the campus of ICARE, and directed them to file a report.
8. A joint inspection was conducted by the MCI and the DCI on 8th October, 2011. The University issued a cause notice on 25th October, 2011 requiring ICARE to show cause why the affiliation of the College should not be cancelled. A reply was submitted by ICARE on 8th November, 2011. ICARE informed both MCI and DCI that a few departments of the Dental College, which had been temporarily housed in the Medical College building, had been shifted to the newly constructed blocks of the Dental College on the land admeasuring 5.2 acres meant exclusively for the Dental College. ICARE informed these two bodies that no department of the Dental College remained in the Medical College building.
9. However, the State withdrew the essentiality certificate issued by its order dated 16th November, 2011 on the ground that both the Medical College and the Dental College operated from the same building and because ICARE had failed to develop the requisite infrastructure as prescribed under the MCI Regulations to start a Medical College.
10. This withdrawal of the essentiality certificate had a cascading effect, inasmuch as the University cancelled its consent for affiliation on the ground that the Medical College was operating from the premises of the Dental College. The affiliation was cancelled under Section 56 of the West Bengal University of Health Sciences Act, 2003. Immediately thereafter, the MCI revoked the letter of permission issued to ICARE under Regulation 2(8) of the MCI Regulations by its letter dated 9th December, 2011.
11. As these events, of cancellation of the permissions granted, had overtaken the pending writ petition before the Supreme Court, ICARE sought leave from the Supreme Court to withdraw the writ petition with liberty to approach the appropriate Court for necessary reliefs with respect to the cancellation of the essentiality certificate, the affiliation and the letter of permission. Accordingly, leave was granted and ICARE was permitted to withdraw the writ petition with liberty as prayed for. This culminated in ICARE and the College filing Writ Petition No. 2030 of 2012 on 30th January, 2012 before this Court.
12. The Supreme Court on 25th May, 2012 permitted the first batch of student admitted to the college to appear in the first year MBBS examination on certain terms and conditions. This order was passed in a writ petition filed by some students. Though the University applied to the Supreme Court to set aside the order, the application was rejected on 28th May, 2012.
13. The Medical College then submitted an application to MCI for renewal of permission to admit students for the academic year 2012- 13 on 28th June, 2012. This application was ignored by the MCI probably because the letter of permission had already been revoked. Therefore, the question of renewal of permission for the subsequent year did not arise.
14. On 1st August, 2012 the learned Single judge (Gupta, J) set aside all the three orders of the authorities, i.e., the revocation of the essentiality certificate, the cancellation of the affiliation and the cancellation or revocation of the letter of permission issued by the MCI.
15. The learned Single judge formulated two issues for consideration, namely, "(a) Whether Rule 2(8) of Establishment of Medical College Regulation, 1999 as amended from time to time, prohibits the user of any portion of the Medical College building for the purpose of running the Dental College? (b) Whether the petitioners have succeeded in obtaining the permission of the Medical Council of India by perpetrating fraud or by making any misrepresentations?"
16. The learned Single judge found that there is no requirement in law which prohibits a Medical College being housed together with a Dental College in one single building. It was held that though a unitary campus is required, a unitary Medical College building is not essential under the Regulations. The only restriction was that the Medical College building has to be constructed within the area of a campus which must not be less than 20 acres. The learned single judge further observed that the Dental Council of India does not permit the establishment of a Dental College unless the proposed Dental College is in the proximity of a Medical College. It was, therefore, held that the existence of any part of a Dental College in the building of a Medical College is not an anathema. It was observed that the Regulations do not, in any manner, suggest that a part of the Medical College building cannot be used for the purpose of a Dental College, more so when some of the departments of both the Dental College and the Medical College are common. The Court then observed that the University, the MCI and the State were fully aware of the fact that a part of the Dental College was functioning from the Medical College building and they had not opposed it, presumably because the law did not prohibit their coexistence. The Court further held that there was therefore no suppression of facts on the part of ICARE and the College in order to secure permission for establishing the College. The Court did not accept the submission advanced on behalf of the State that there was a lack of infrastructure and held that the State had no right to withdraw the essentiality certificate when the need for the Medical College for the area for which it was granted continued to exist. The Court held that the withdrawal of permission by the Medical Council of India and the revocation of the affiliation by the University were bad in law. The order dated 16th November, 2011 withdrawing the essentiality certificate, the order dated 28th November withdrawing the consent for affiliation of the University, and the order dated 9th December, 2011 issued by the MCI withdrawing the letter of permission were set aside by the Court. The authorities were directed to allow the College to continue the MBBS course commenced for the academic session 2011-12 and to ensure that the students found no difficulty in pursuing their studies subject to the structure of the fees being decided by the Fee Fixation Committee.
17. The learned single judge, however, did not concede to the prayer of ICARE and the College to permit the College to admit students for the academic session 2012-13 as the necessary application in that regard would have to be made to the MCI which would decide the matter in accordance with the MCI Regulations. The Court then considered the submissions made on behalf of the University that the students admitted were not registered with the University, and therefore they could not continue the MBBS course. It was also the submission of the University that students had been admitted without the process being monitored by the Monitoring Committee, i.e., the Barua Committee, and the Bisi Committee for approving the fee structure and therefore, the admissions had been granted by the College illegally to the students. The Court then considered the orders of the Supreme Court dated 16th September, 2011 and 28th September, 2011. The learned single judge held that when the College filed the writ petition before the Apex Court it was affiliated to the University and it was incumbent on the University to register the students. Instead, while the petition was pending, the University sought to non-suit the students by withdrawing the affiliation wrongfully and illegally. The learned single judge therefore concluded that since the petition had been allowed, the students who had been permitted to appear for the examination by the Supreme Court would continue in the College. The Court observed that the State had given a go by to its objection raised in the letter dated 29th August, 2011 regarding the fee structure and the unilateral examination. The learned single judge held that the objection was not of any consequence since the Supreme Court had permitted the College to admit students, having regard to the fee structure proposed by the college and the merit of the students.
18. After hearing the counsel for the parties we are convinced that the judgment of the learned single judge requires no interference in these appeals. The learned single judge has considered all the issues raised before him and has appreciated them properly. On hearing Counsel, we find that the following points arise for our consideration:
(i) Whether a Medical College can be established by a Society when a few departments of the Dental College run by the same Society co-exist in a building allocated for the Medical College?
(ii) Whether there was any suppression of facts or a fraud perpetrated by ICARE while obtaining the letter of permission from the MCI?
(iii) Whether the students who have been admitted to the college pursuant to the orders of the Supreme Court are entitled to continue to prosecute the MBBS degree course?
(iv) Whether it is permissible for the appeal court to take into account events which have occurred after the impugned judgement was rendered?
(v) Whether the relief granted to the college and ICARE can be suitably moulded considering the subsequent events?
19. In order to appreciate the submissions of the counsel in respect of these issues it is necessary to bear in mind that the main reasons for revocation of the essentiality certificate on 16th November, 2011, based on a joint inspection report of the MCI and DCI dated 8th October, 2011 filed before the Supreme Court, are (a) it was established that the Medical College was operating from the premises of the main building of the Dental College and the staff quarters, boys hostel and canteen were shared by the medical students and the dental students; (b) there was suppression of facts amounting to a fraud in order to obtain the letter of permission from the MCI; and (c) the students had been admitted to the first year MBBS course without waiting for the recommendation of the Fee Fixation Committee and by demanding fees at a much higher rate.
Point (i): Co-existence of departments of Dental College in the premises of Medical College.
20. The main bone of contention appears to be whether a Medical College and a Dental College could function from the same building or whether it was essential that the Medical College should be housed in a separate building for itself. Mr. Bhattacharya, learned Counsel for MCI, the learned Advocate General appearing for the University and Mr. Talukdar for the State submitted that the ICARE has flouted the provisions of Regulation 2(8) of the MCI Regulations which stipulates that only a Medical College can be set up on the plot of land earmarked for that purpose. According to them the single plot of land of 25 acres, which is required for setting up a medical institution under Regulation 2, cannot be used for any other purpose but for a Medical College. They submitted that the Medical College cannot include a Dental College or vice versa. They have drawn our attention to the various reports of the inspection committees which indicate that some departments of the Dental College were running in the building constructed for the Medical College. According to the learned Counsel, the infrastructure which is required as per the Regulations is mandatory and there must be strict compliance with the MCI Regulations. The learned Advocate General urged that substantial compliance of the Regulations is of no consequence and that a proper construction and interpretation of the Regulations indicates that there can be no other building on the campus earmarked for a Medical College. All the learned Counsel for the appellants have submitted that the learned single judge has not interpreted the Regulation 2(8) correctly and has therefore, committed a serious error by setting aside the three orders impugned in the writ petition. Mr. Bhattacharya for the MCI submits that under Section 10A of the Indian Medical Council Act there is an absolute bar to the running of the Dental College in the premises of a Medical College. The learned Counsel have relied on several judgements to which we will advert shortly.
21. Section 10A of the aforesaid Act stipulates the manner in which a permission for establishing a new Medical College or a course of study is to be granted. In exercise of the powers conferred under Section 10A and Section 33 of the Act, the MCI has framed Regulations. It is necessary at this stage to consider the relevant Regulations governing the establishment of a Medical College.
22. As per the MCI Regulations a Medical College as defined means an institution in which a person may undergo a course of study or training which will qualify him for the award of any recognised graduate medical qualification. Such a college can be established only after obtaining the prior permission from the Central Government by submitting a scheme. The organisations which are eligible to apply for permission to set up a Medical College have been mentioned in Regulation 1. The qualifying criteria for an applicant which fulfils the eligibility criteria to apply for permission are: (1) Medical education is one of the objectives of the applicant; (2) A suitable plot of land, admeasuring not less than 25 acres, is owned or possessed by the applicant on a lease for 99 years for the construction of the college. These criteria were modified after 2008 and the area of the plot required was dependant on the location of the Medical College; (3) An essentiality certificate in form 2 issued by the State Government to establish a proposed Medical College at the proposed site and the availability of adequate clinical material; (4) Consent of affiliation from a university in Form 3 of the proposed Medical College; (5) The applicant owns and manages a hospital of not less than three hundred beds with the necessary infrastructural facilities; (6) The applicant has not admitted students to the proposed Medical College; (7) Two performance bank guarantees of specific amounts, and (8) Opening of a Medical College in hired or rented building shall not be permitted. The Medical College shall be set up only on the plot of land earmarked for that purpose. The dispute in the present appeals centres on the interpretation of Regulations 2(8) which reads as follows:
"2(8): Opening of a Medical College in hired or rented building shall not be permitted. The Medical College shall be set up only on the plot of land earmarked for that purpose as indicated."
23. It has been argued by the learned Advocate General appearing for University that the interpretation of the regulation framed by an expert body must have primacy and the Court cannot substitute its own interpretation of the regulations framed by the MCI. We are not able to accept this submission of the learned Advocate General. There is no doubt that the Regulations framed by the MCI are mandatory. It is necessary for us to examine whether Rule 2(8) requires the applicant to establish only one building or only a Medical College in the campus. Emphasis is placed by the learned Advocate General on the word 'only' contained in Regulation 2(8) and he submits that no other institution or college but a Medical College can be established on the earmarked plot. The learned Advocate General has further submitted that there cannot be substantial compliance of the Regulations but the compliance must be strictly in terms of the Regulations. He also urged that the learned single judge had misdirected himself while framing the issues for consideration which has resulted in erroneous conclusions being drawn.
24. In the case of Al-Karim Educational Trust and Anr. Vs. State of Bihar and Ors. reported in AIR 1996 SC 1469, a bench of three Hon'ble Judges of the Supreme Court has held that it is ordinarily for the State Government, after consulting the Medical Council of India, to arrive at a decision whether to grant affiliation to a college. However, if it is found that the affiliation is being withheld unreasonably or the decision is being prolonged for one reason or the other, the Court would, though reluctantly, be constrained to exercise jurisdiction. The Court observed that the importance of fulfilling the essential pre-requisites set by the MCI before granting recognition cannot be diluted. However, in exceptional and special circumstances where the deficiencies have found substantially complete and the minor deficiencies are not such as to permit the withholding of affiliation, the Court must direct the grant of affiliation. The Supreme Court has observed that it is impractical to insist, for a fool proof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially when the institution has begun to function, students have been admitted and have appeared for the examination and the fate of such students should not hang in the balance in an unending or everlasting manner. The Court observed that the question to be posed is "....whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set up more efficient and more satisfactory should be insisted as "a wooden" rule".... The Court further observed that minor deficiencies which called for rectification can be set right with time. In the opinion of the Supreme Court, what is required is a total, practical, overall view especially when there is material placed before the Court to show that there has been substantial, though not literal, compliance with the deficiencies.
25. We have noted that the application for permission to set up a Medical College was submitted on 24th September, 2010 for the academic year 2011-12. ICARE was informed of the deficiencies after an extensive inspection was carried out by the MCI inspecting team on 22nd - 23rd March, 2011. The compliance report was filed by ICARE on 10th May, 2011. A second inspection was carried out by the MCI Inspector to verify whether the deficiency indicated had been removed. It was only after there was satisfactory compliance with the requisites that the letter of permission was issued on 30th June, 2011. We therefore do not find any substance in the submissions of the learned Counsel for the appellants that ICARE had either suppressed any facts while seeking permission for establishment of a Medical College or that the existence of a Dental College or departments of a Dental College in the premises of a Medical College is prohibited. There is no mandatory requirement that the campus of Medical College cannot house any other allied institute so long as the infrastructure available to both the institutions is as per the requirements of law. Indisputably, the area required for the departments of the Medical College had not been compromised because some departments of the Dental College were in the same building. The mere fact that some departments of the Dental College were operating in the building of the Medical College cannot be deemed as a deficiency at all, unless the minimum standard requirement for each department of the Medical College for hundred admissions, annually, was compromised.
26. The submission that there has to be strict compliance of the Regulations is unsustainable. The permission granted to the College of Medicine and Sagar Dutta Hospital for establishing a Medical College at Kamarhati, Calcutta for the academic year 2011-12 has been annexed to Writ Petition No. 4481 of 2012 filed by seventy seven students. We have perused this annexure and we find that there is not even substantial compliance of the MCI Regulation in the case of this college, let alone strict adherence to the Regulations. The specific observations and the overall impression in respect of the college are as under:
1. Infrastructure is under process of construction and presently available infrastructure is not adequate for starting a new Medical College.
2. Teaching facilities, investigation facilities, radiological facilities are inadequate.
3. Residential facilities for students, faculty, (both teaching and non teaching) are inadequate.
4. Faculty and residents are grossly inadequate.
5. Nursing and other paramedical staffs are also inadequate.
6. Central Library, CSSD, Laundry, ICCU and ICU are not available.
7. Medical record department is not computerized and not as per the MCI norms.
8. There are no common room for Boys and Girls in the college.
9. Departments like General Medicine, General Surgery, Paediatrics, Orthopaedics, ENT, Opthalmology, Obstetrics & Gynaecology, Anaesthesiology, Dentistry, and Radio-
diagnosis do not exist.
10.College may not be ready to admit medical students for 2011-12.
27. In fact, the report annexed to the petition indicates that on the day of the inspection only the old Sagar Dutta Hospital building was in existence with a few residential quarters. Only the Dean was available when the Assessors arrived for inspection and a few faculty members were transferred from other colleges as medical teachers, including the Medical Superintendent. The infrastructure of the hospital was found inadequate and it was suggested by the Dean that a Memorandum of Understanding for collaboration with the adjacent Employees State Insurance Hospital was to be executed. Thus the proposed Medical College did not even have a hospital with the requisite intake capacity when that is one of the qualifying criteria under the MCI Regulations.
28. Similarly, the Assessors had inspected the Malda Medical College and Hospital for the issuance of the letter of permission on 11th June, 2011, the last assessment date being 6th April, 2011. It was found that:
1. There are no lecture theatres. Few areas with tin shades without seating arrangements are marked for lecture theatres.
2. Hostels (boys, girls and residents) are under construction.
3. No Library. No books. Only 89 sqm area is marked for library.
4. Anatomy, Physiology and Biochemistry department and laboratories are still under construction.
5. No extra equipment is procured in OT block.
6. Faculty positions are grossly deficient.
Only one Assistant Professor in Opthalmology has joined after the last inspection
7. No extra paramedical staff has been appointed after the last inspection. So there is gross deficiency.
8. Administrative blocks and college blocks are still under construction.
9. Common rooms under construction.
10. Animal house area is marked but not functional and not according to norm.
11. Residential quarters are not available at present.
12. No pharmaco vigilance committee formulated yet.
13. Website not fully functional.
14. Only one PHC (Habibpur BPHC) is identified (Document attached).
29. The Assessors reported that the Medical College building was under construction. There was no constructed part of any building.
The proposal to acquire the equipment necessary for starting the departments was yet to be initiated. It was therefore suggested that another assessment should be made before considering whether the letter of permission should be granted. Despite the lack of facilities, these colleges have been granted the letter of permission for launching a new Medical College for hundred admissions in each college, on the basis of the minutes of the meeting of the Board of Governors held on 29th June, 2011. The earlier decision of the Board of Governors dated 27th June, 2011 was reviewed in the light of the undertaking given by the then Secretary, Government of West Bengal, that the aforesaid two colleges were fully furnished and functional with the required infrastructure, equipment, teaching material, faculty and staff for new Medical Colleges for 100 admissions in each college. It defies logic that these colleges could acquire the infrastructure within two days when even the buildings for the colleges were not complete when the inspection had been carried out by the assessors. This smacks of complete arbitrariness and the whimsical manner in which the MCI accords permission for setting up Medical Colleges. Both these colleges not only do not have the required infrastructure as per the norms set by the MCI but their facilities are nowhere near completion. In fact, the facilities are grossly inadequate despite which they have been granted permission to establish a Medical College. Discrimination is writ large in this case. Regulation 8 of the Medical Council Regulations stipulates that formal permission may be granted for the establishment of a Medical College in a phased manner. Clause 3 of Regulation 8 which has been inserted by the notification dated 16th April, 2010, provides that admissions shall not be made at any stage unless the requirements of the Council are fulfilled. With respect to the renewal of permission for the establishment of a College, if there is a deficiency of more than a certain percentage the MCI would not renew the permission in that academic year. We have found that and in fact the MCI has stated in its affidavit filed before the learned single judge that there was no infrastructural deficiency at all with respect to the College. It was only because the college suppressed the fact that it was running a Dental College in the premises of the Medical College that the letter of permission was withdrawn.
30. A bare reading of Regulation 2(8), in our opinion indicates that a Medical College cannot be set up or established in a hired or rented building, and may be set up only on a plot of land earmarked for this purpose. Having regard to the provisions of Regulation 2 as a whole, this means that a Medical College has to be set up on a campus of not less than 20 acres or 25 acres, which is owned by the applicant or has been leased to the applicant for 99 years. Unfortunately, the State, the MCI and the University have read the second sentence of Regulation 2(8) without any reference to the first sentence of the Regulation. When both the sentences are read together and in the context of the entire Regulation 2, the only interpretation possible is that a Medical College cannot be set up in a rented building but on a plot of land earmarked for that purpose as indicated in the Regulation 2(2). In our opinion the State, the MCI and the University had unnecessarily created a bogey to revoke the permission granted because of a Dental College being set up in the campus. The Regulations do not prohibit the Dental College and Medical College operating from the same building. It is obvious that if the two colleges operate from one building, the area required for the purpose of the departments of the Medical College and that of the Dental College must be well-defined and sufficient and must be in accordance with the requisite area stipulated by the MCI and the DCI. Had the MCI been of the view that only a Medical College could be set up on the plot of land, it would have specifically mentioned so in the qualifying criteria stipulated in Regulation 2(8). It merely stipulates that a Medical College must be set up on a plot of land earmarked for that purpose in accordance with Regulation 2(2) as opposed to being established in a hired or rented building. We do not therefore find any infirmity in the conclusion drawn by the learned single judge that, the applicant possesses the requisite plot for the campus to set up a Medical College. We find that the essentiality certificate, the affiliation of the College to the University and the letter of permission from the MCI have been revoked or withdrawn malafide with ulterior motives and for extraneous reasons.
Point (ii): Suppression of facts or fraud
31. The requirement of a single plot of land has been relaxed over the years. Now in metropolitan cities the plot area has in fact been reduced to 10 acres, based on the permissible FAR/FSI allowed by the competent authority for those Medical Colleges/institutions established from 13th November, 2009 onwards. There is no dispute that ICARE owns a plot of land on which it proposed to set up a Medical College. There is also no dispute that the plot of land is of the requisite area. The only reason for contending that there is a lack of infrastructure is that departments of the Dental College were being run from the building of the Medical College. While seeking the essentiality certificate by their application dated 7th July, 2010, ICARE had disclosed that after constructing the non-clinical department of the Medical College and establishing a full-fledged hospital on a plot of 25 acres it decided to have one Dental College at Haldia on the available land by bifurcating the plot: 20 acres for the Medical College and 5 acres for the Dental College. ICARE had mentioned that the existing infrastructure of the proposed Medical College would be temporarily used for the Dental College. Thus, there was no suppression on the part of ICARE while applying for the essentiality certificate. It had disclosed that the Dental College would partly utilise the existing infrastructure of the proposed Medical College.
32. The essentiality certificate is to be issued by the State in Form 2 of the MCI Regulations. A bare perusal of Form 2 which is the proforma of the essentiality certificate indicates that the certificate is to be issued by the State Government if it is of the opinion that the establishment of a Medical College in the proposed area "would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State." Before the State issues the certificate it has to assess the number of such institutions already existing in the State, the number of seats available, the number of doctors being qualified annually and who are registered with the State Medical Council, the number of doctors in Government service, the number of Government posts vacant and those in rural/difficult areas, the number of doctors registered with the employment exchange, the doctor population ratio in the State and the doctor patient ratio proposed to be achieved by permitting the opening of a Medical College. The essentiality certificate is required to contain the justification for opening of the proposed Medical College. Thus, it is apparent that the essentiality certificate has to be issued only after a careful assessment of the availability of qualified doctors in the area where the Medical College is proposed to be established as well as in the State. While issuing the essentiality certificate on 6th October, 2010, the State certified that the applicant owned and managed a three hundred bedded hospital. It further certified that it was desirable to establish a Medical College in public interest and that the establishment of a Medical College at Haldia by ICARE was feasible. This was because adequate clinical material as per the Medical Council of India norms was available. The issuance of the essentiality certificate was made subject to the creation of the necessary infrastructure as per the MCI norms. In the event fresh admissions were stopped by the Central Government, the State Government would take over the responsibility of the students already admitted in the college, with the permission of the Central Government. Therefore, in our opinion the contention of the State, that there was no disclosure on the part of ICARE that there was a Dental College partially utilising the existing infrastructure of the proposed Medical College, is without merit. The essentiality certificate had been issued, we trust, after a proper consideration of the application. The certificate issued indicates that it had been issued in public interest as it was desirable to establish a Medical College in the area and adequate clinical material was available.
33. When the writ petition filed by ICARE came up before the Supreme Court on 27th September, 2011, the Pro Vice-Chancellor of the University stated that when he visited the Campus on 27th September, 2011 to oversee the admission test for the BDS posts, it came to light that there was no separate building for the Medical College and that it was functioning from the building of the Haldia Institute of Dental Sciences and Research. On the next day an affidavit to this effect was filed by the Pro Vice-Chancellor of the University before the Supreme Court in the pending Writ Petition filed by ICARE. The University had given its consent for affiliation of the Medical College in the year 2010 and had renewed the affiliation on 18th August, 2011. The Supreme Court found that it was difficult to accept the statement of the Pro Vice-Chancellor that the infrastructure for the College was not adequate when the University had granted affiliation twice. The Court directed that there should be a joint inspection by the MCI and the DCI of the college premises to ascertain where the requisite infrastructure was available. On 12th October, 2011 the MCI and the DCI filed a joint report dated 8th October, 2011 indicating that the main building No. 1 had departments of both the Medical College as well as the Dental College. The Court further observed that if there was any irregularity it would be open for the MCI and the DCI to take action in accordance with law. However, instead of these bodies' taking action, it was the University which issued a letter on 25th October, 2011 indicating that its inspection team sent to the College on 30th September, 2011 found that there was inadequate infrastructure to run the Medical College. The Board of Governors of the MCI issued a show cause notice on 31st October, 2011 after the joint inspection report dated 8th October, 2011. This show cause notice was replied by ICARE and the College in detail on 8th November, 2011. The ICARE indicated that only a few departments of the Dental College had been housed in the Medical College building, temporarily, and that they had been shifted to the building exclusively belonging to the Haldia Dental College constructed on a plot earmarked for the Haldia Dental College admeasuring 5.2 acres. ICARE denied that it had obtained the letter of permission by fraud as it had submitted the compliance report indicating the Dental College and the proximity between it and the Medical College. The ICARE also pointed out that the deficiencies found by the inspecting team of the MCI had been cured after which the letter of permission was issued. Not being satisfied with the explanation given by ICARE, the MCI revoked the letter of permission issued to ICARE for establishing a Medical College for the academic year 2011-12 on the ground that the letter of permission had been obtained by committing a gross violation of the MCI Regulations and misrepresentation.
34. Significantly, an affidavit was filed on 13th March, 2012 by MCI before this Court in the writ petition where the MCI indicated that its letter dated 9th December, 2011, revoking the letter of permission issued on 30th June, 2011, was issued primarily because of misrepresentation and fraud on the part of ICARE and not because there was a deficiency in the existing infrastructure for the College.
35. The learned Counsel for the parties have, painstakingly, taken us through the documents on record, including the compliance report submitted by ICARE when it sought permission for establishing a Medical College. The compliance report clearly indicates that the Dental College exists and that it is housed on an adjacent plot of land. Indisputably, in the application submitted by ICARE to the State for the essentiality certificate, there was a disclosure on the part of the ICARE that it was running a Dental College and that some of the departments were housed in the infrastructure available for the Medical College, temporarily. The application submitted on 24th September, 2010 by ICARE to MCI for the establishment of a Medical College indicates at paragraph 3.3.12.7 that the Haldia Institute of Dental Science and Research is functioning alongside the Medical College and that it had two hundred state-of-art dental chairs in the Dental hospital.
36. The contention that there was suppression of facts on the part of ICARE is without any basis. Not only has there been a disclosure about the Dental College, but under the DCI Regulations, a Dental College can be established only if it is proximate to a Medical College. Similarly, the Minimum Standard Requirements Regulations for a Medical College indicate that a Department of Dentistry is one of the essential departments for establishing a Medical College. Furthermore, there could be a suppression of facts only if it was incumbent on ICARE to disclose the existence of a Dental College on the campus of the Medical College. As we have said earlier there is no prohibition for such coexistence. Besides, ICARE in its application had disclosed that it had a dental hospital having two hundred state- of-art dental chairs. One would expect that when the MCI's representatives inspected the infrastructure of the College, they would have noticed these dental chairs. It would be unlikely, if not improbable, that a three hundred bedded hospital for the Medical College would require two hundred state-of art dental chairs. Had there been no permission for the coexistence of the two colleges, the inspection would certainly have resulted in the MCI refusing to grant the letter of permission. It is obvious from the facts and documents before us that the cancellation of the essentiality certificate had a cascading effect resulting in the cancellation or revocation of the affiliation and the letter of permission. All these documents have been revoked mala fide and for extraneous reasons. We uphold the judgment of learned single judge that there was no fraud or misrepresentation on the part of ICARE.
Point (iii): Relief to students
37. The next question which we will have to consider is whether there was any illegality in admitting students to the College. W.P. No. 4481(w) of 2012 has been filed by seventy seven students, seeking a direction against the appellants to revoke the orders cancelling the essentiality certificate, withdrawal of the consent for affiliation and the revocation of permission to set up the Medical College. The other prayer sought was to permit the petitioners to complete the MBBS course in the college. A further direction has been sought against the University to register the students.
38. This writ petition has been referred to us pursuant to an order passed by another learned single judge (Aniruddha Bose, J.) on 27th December, 2011. The learned single judge concurred with the view of Gupta J on the issue of the cancellation or revocation of essentiality certificate, the affiliation and the permission. However, Bose J differed with the opinion of Gupta J on the issue whether the students are entitled to continue in the College considering the principles delineated in Islamic Academy (supra) and P.A. Inamdar's case (supra).
39. Two committees, namely, the Fee Structure Committee and the Admission Monitoring Committee have been set up in accordance with the directions of the Supreme Court in the case of Islamic Academy of Education and Anr. vs. State of Karnataka and Anr. reported in AIR 2003 Supreme Court 3724. The Court observed in this judgment that there can be no rigid fee structure fixed by any Government; each institution must have the freedom to fix its own fee structure, taking into consideration the need to generate funds to run an institution and to provide facilities which are necessary for the benefit of the students. In order to give effect to the judgment of the Supreme Court in the case of T.M.A. Pai Foundation vs. State of Karnataka reported in AIR 2003 Supreme Court 355, the Supreme Court directed in Islamic Academy (supra) that the State Governments of each State should set up a committee for fixing the fee structure for medical institutions, headed by a retired High Court Judge. An educational institution is required to place before the Committee its proposed fee structure well in advance of the new academic year. The Committee must then decide whether the fees proposed by the institution are justified and do not amount to profiteering or charging a capitation fee. The fees fixed by the committee shall be binding on the institution for a period of three years, at the end of which the institute would be at liberty to apply for a revision. The Fee Committee thus regulates the fees, not only of Government colleges, but also all private Medical Colleges, both minority and non-minority colleges.
40. In the same judgment of Islamic Academy (supra), the Supreme Court has directed the appointment of another permanent committee headed by a retired Judge of the High Court of that State to oversee the tests conducted for entrance into a medical institution. The Court has observed that if any student is admitted de hors merit a penalty can be imposed on that institution and in an appropriate case the recognition/affiliation may also be withdrawn. Institutions which have their own admission procedure for at least 25 years were at liberty to apply to the Committee to permit them to adopt their own admission procedure.
41. In P.A. Inamdar vs. State of Maharashtra reported in AIR 2005 Supreme Court 3226 the Supreme Court reiterated that the two committees' set up as directed in Islamic Academy's case (supra) would be applicable to unaided institutions as well. This is because it is their duty to maintain the requisite standard of professional education by admitting students on the basis of merit and making education equally accessible to eligible students through a fair and transparent admission procedure and a reasonable fee structure. The Court held that the directions issued by it for the constitution of the two committees was an ad hoc arrangement, made in exercise of the powers conferred on the Supreme Court under Article 142, until a suitable legislation was framed by the State. The Court further observed that the Committees should be sensitive, rational and have due regard for realities while considering what should be the ideal and reasonable fee structure for an institution.
42. It has been submitted by Mr. Bhattacharya, the learned Advocate for MCI that the College had admitted students without waiting for the fee structure to be notified and without considering the merit of the students. He submitted that the admission of any student to the College, contrary to the principles laid down in Islamic Academy (supra) and P.A. Inamdar (supra), is illegal.
43. Mr. Kapoor appearing for the College pointed out that the sequence of events would indicate that between 2nd July, 2011 and 26th August, 2011, ICARE repeatedly applied to the Fee Fixation Committee as well as the Committee established for monitoring the selection process for admission. There was no response from these Committees. Since the cut-off date for completion of admission was 30th September, 2011, ICARE informed the Committees on 28th August, 2011 that it would commence the admission process by publishing admission notices on 29th August, 2011. On the notices being published, the State Government prohibited the admission process altogether. Soon thereafter, on 7th September, 2011, ICARE filed W.P. No. 385 (W) of 2011 under Article 32 of the Constitution before the Supreme Court. Pursuant to the orders passed thereon between 16th September, 2011 and 28th September, 2011, ICARE was permitted by the Supreme Court to fill 50 per cent of the total seats with students from the merit list prepared by the College, while the remaining 50 per cent seats were to be allotted for students sent by the Government. The State, however, declined to send any students to the College and, therefore, the Supreme Court permitted ICARE to fill the all the seats, subject to the conditions that: (a) the admissions would be dependent on the final result of the writ petition; (b) each of the admitted students would be intimated in writing about the pendency of the case; (c) the College would secure an undertaking from each student admitted that he/she will not claim any equities on being admitted in pursuance of the orders, if ultimately it was found that they were not entitled to continue. Accordingly, ICARE admitted 88 students to the first year MBBS course for the year 2011-12. After admission of the students it appears that many of them failed in the examination. Therefore, as directed by the Supreme Court, a supplementary examination was held, and students were permitted to appear for the examination.
44. The learned single judge (Gupta J) has held that the order of the Supreme Court dated 16th September, 2011 permitting the admission of students was unconditional; the conditions were stipulated for the first time by the order of 28th September, 2011. The learned single judge, therefore, held that those conditions were applicable to the students who were admitted after that order was passed, i.e., the remaining 50 per cent students admitted on the refusal of the Government to allot students for those seats. The learned single judge then observed that on the day the College filed the writ petition before the Supreme Court it was affiliated to the University and the latter was bound to register the students. Instead, the university non-suited the students by withdrawing the affiliation wrongfully and illegally. The Court observed that the State had waived the objection raised in its notice dated 29th August, 2011 regarding admission of students without obtaining the approval of the fee structure from the Committee. The learned single judge noted that though the State had sought a modification of the order dated 16th September, 2011, it was not on the ground indicated in its notice to ICARE dated 29th August, 2011. Moreover, on 27th September, 2011 the State submitted before the Supreme Court that it intended to allot students to fill the balance 50 per cent seats. The learned single judge found that this was an unequivocal waiver of the objection raised by the State in the notice dated 29th August, 2011. The learned single judge noted that the State did not express any dissatisfaction about the selection of students. Indeed, even before us the basic objection was not to the selection of the students and their continuation but to the fact that they had been admitted without the fee structure having been approved by the committee.
45. The learned single judge, therefore, held that as the essentiality certificate, affiliation and permission had been wrongly and illegally revoked, the students were entitled to continue in the College, and the College was directed to charge such fees as would be fixed by the Fee Committee, post facto. Any amount which the petitioners, i.e., the College and ICARE had overcharged the students would remain to their credit subject to the decision of the Fee Committee. The Court also observed that on 19th August 2011 the College had written to the Admission Monitoring Committee requesting it to approve its admission process which it had completed through the Institute of Education and Psychology Management, Kolkata, an agency approved by the Committee. The Court therefore held that there was no impediment for the students to continue in the College.
46. We have no reason to take a different view in the matter. In the peculiar facts and circumstances of the present case the students cannot be thrown to the winds only because of the lack of communication from the Fee Committee and the Admission Monitoring Committee. Therefore, there can be no doubt that these students who were admitted in the academic session 2011-12 are entitled to continue in the college.
47. It appears that the students, i.e., the petitioners in W.P. No. 4481 of 2012 approached the Supreme Court because the Division Bench had not granted interim relief to the effect that their registration forms should be accepted. An interim order was passed on 25th May, 2012 by the Supreme Court in Civil Appeal nos. 440 - 441 of 2013 permitting the students to appear for the examination for the academic session 2011-12, subject to their depositing the requisite fees and on completion of the requisite attendance. Their results were directed to be kept in a sealed cover and on the condition that they would not claim any equities in their favour. Accordingly, the students did appear for the examination. While passing the order in the Civil Appeals on 4th April, 2013 the Supreme Court noted that in the judgment impugned in these appeals, the learned single judge had directed the State, the MCI and the University to permit the ICARE and the College to continue the MBBS course commenced for the academic session 2011-12. The Court also noted that the order was made subject to the condition that the fees charged would be decided by the Fee Committee. The Court observed that the prayer of the MCI, the University and the State for stay of the order of the learned single judge had been refused by the Division Bench. In these circumstances the Supreme Court disposed of the application and directed that the results of the examination which were kept in a sealed cover be declared forthwith. It was then found that many students had failed, and therefore, the Court directed by an order dated 4th April, 2013 that a supplementary examination should be held. The Court did not accept the contention of the University that it would be futile to hold a supplementary examination when there was hardly any time left for the course of the second year professional MBBS course to be completed. The Court further observed as follows:
"Having regard to the peculiar facts involved in this case we have given our serious attention that the matter since the fact of a large number of students, who were not themselves to blame for the problem, which had been created, are to be affected adversely. The appellants/applicants were admitted to the M.B.B.S. Course at a point of time when all the essential permissions and affiliation were in place. It was not as if the College concerned had allowed the students to be admitted, despite the fact that they did not have any such permission or clearances. It is unfortunate that having been admitted in a lawful manner, the appellants/applicants should be made to suffer the consequences of the withdrawal of such permissions and affiliation. It is possibly with that object in mind that the learned single judge had directed that, in the event the appellants/applicants were successful, they should be allowed to take the supplementary examination to enable them to set for the second professional M.B.B.S. Examination."
With respect to the supplementary examination the Court observed that if there was a problem of the lack of requisite attendance it could be addressed; the College could hold extra classes, even on weekends, so to enable students to make up the percentage. We have been informed that only 15 out of 88 students who were admitted in the College in that academic year have passed.
48. Mr. Bhattacharya for the MCI has submitted before us that the prescribed date for admissions has passed by and therefore, no new student can be admitted to the College. He submitted that even the earlier students, that is, the first batch of hundred students who were admitted for the session 2011-12 are not entitled to continue in the College as they were not registered, and they were admitted subject to the result of the petition filed by ICARE in the College. He urged that since the petition was withdrawn by ICARE the fate of the students is sealed and they cannot continue to prosecute their medical studies in the College because the Supreme Court had directed by its orders that they cannot claim equities.
49. We are not oblivious to the fact that all the aforesaid orders of the Supreme Court have been passed by making it clear that the students cannot claim any equities for continuation of their course of studies in the College. However, the embargo would have been applicable had the College failed in its challenge to the orders revoking the permission, affiliation and essentiality certificate. The students would then have been left in a lurch. When the College has succeeded before the learned single judge and in our view rightly, we do not find any impediment to permit the students to continue their course of studies in the College. Of course, only 15 students have passed in the first MBBS and can proceed to the second year of the College. The others will continue in the same class as per the University and MCI Regulations.
Point (iv): Subsequent events
50. An application being CAN No. 7311 of 2013 has been preferred by the ICARE and the College in which the following prayer has been sought "direct the respondents/appellants to grant first renewal of permission under Section 10A of the Indian Medical Council Act to the applicant/respondent No. 2-College for admission of second batch of hundred students in MBBS course for the academic session 2013-14." This application has been opposed by the learned Counsel for the MCI on the ground that such an application is not maintainable as the relief sought has to be applied for in a substantive writ petition. It has been submitted that the application is of no consequence because the date for admitting students for the session 2013-14 was 31st July, 2013. The learned Counsel for the MCI urged that late admissions cannot be granted with respect to the year 2013-14 as the Supreme Court had time and again disapproved of such exceptions being made once it had fixed the time schedule for the he admission of the students. Mr. Bhattacharya submitted therefore, that even assuming ICARE and the College did have the requisite infrastructure for the session 2013-14 they cannot be permitted to admit a fresh batch of 100 students at this stage, beyond the scheduled date of admission.
51. A supplementary affidavit has also been filed by ICARE and the College to place on record events which have occurred subsequent to the judgments under challenge in these appeals. This affidavit is also opposed by the learned Counsel for the MCI on the ground that it was not served in advance and in any event what was material before this Court is only the judgment and order under challenge and the scope of the appeals cannot be widened. The learned Counsel has submitted that the MCI has had no opportunity to reply to that supplementary affidavit and therefore, we should not consider the same.
52. We will first consider whether the application filed is maintainable at all, and whether the prayers sought in the application can be granted without filing a substantive writ. The Counsel for the appellants in each of these appeals have submitted that the ICARE and the College would have to adopt the proper procedure by filing a substantive writ petition if they desired to challenge the decision of the MCI to refuse the renewal of the letter of permission. They urged that the ICARE and the College cannot challenge the decision by adopting a shortcut and filing an application.
53. It has been argued by Mr. Kapoor, the learned Counsel appearing for ICARE and Mr. Pal, the learned Counsel appearing for the College that events which occurred subsequent to the order of the learned single judge dated 1st August, 2012 will have to be considered by the appellate court while deciding what relief should be granted. It was submitted that the effect of the judgment of the learned single judge was sought to be defeated by MCI by not considering the application for renewal submitted well in advance by the College. The learned Counsel pointed out that once the learned single judge had allowed the writ petition of ICARE and had found that the stand taken by the Government, the University and the MCI for cancellation of the essentiality certificate, the affiliation and the letter of permission was illegal, it was the bounden duty of these authorities to comply with the judgment and to take such steps as were required for furtherance of the ratio in that judgment. It was submitted that the MCI's inaction has led to a situation where not only has there been no admission for the academic year 2012-13 but the College would face the same prospect for the academic year 2013-14 if no relief was granted in the application. The learned Counsel submitted that complete justice is required to be done and therefore it is necessary to hear the application.
54. In the case of Pasupuleti Venkateswarlu Vs. The Motor & General Traders reported in (1975) 1 SCC 770, the Supreme Court dealt with the issue whether the High Court ought to have taken cognisance of subsequent events. The Court held thus:
"4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-à-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink as it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.
5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri which is a leading case on the point. Gwyer, C.J., in the above case, referred to the rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama :
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
and said that view of the Court's powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co.. Sulaiman, J., in the same case relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard(emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously:
It is also on the theory of an appeal being in the nature of a re-
hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against."
55. Similarly, in Rameshwar and Ors. vs. Jot Ram and Anr.
reported in (1976) 1 SCC 194 the Supreme Court held that the Court's procedural delays cannot deprive a litigant of real justice or rights crystallised in the initial cause of action. The Court observed:
"....where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts."
The Court further observed:
".........subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and its made applicable at any stage."
56. In Amarjit Singh Vs. Smt. Khatoon Quamarain reported in AIR 1987 SC 741 and in Ramesh Kumar vs. Kesho Ram reported in 1992 Supp (2) SCC 623 the Supreme Court reiterated its view expressed in Pasupuleti Venkateswarlu (supra). In Ramesh Kumar (supra) the Supreme Court, after taking into account the principles enunciated in Pasupuleti Venkateswarlu (supra) and other judgments, observed that when subsequent events are pleaded, the Court may, having regard to the nature of the allegations of fact on which the plea is based permit evidence by way of affidavits. The Court observed that there cannot be any hard and fast rule governing the procedure to be adopted while bringing on record subsequent events of fact or law which would have material bearing on the entitlement of the parties to relief or aspects which bear on the moulding of the relief. The Court observed that technicalities should not burden the procedure which is required. Processual law is but a hand maiden of justice.
57. We are inclined to consider the facts which have evolved after the judgment of the Ld. Single judge was rendered on 1st August, 2012. In our opinion it would be a travesty of justice to drive the ICARE and the College to another round of litigation for the Courts to decide whether permission should be renewed for the year 2013-14 for the third batch and for the second renewal. Considering the heavy docket of this Court it would not be improbable that the ICARE and the College would have to face the entire gamut of litigation all over again keeping the students in suspended animation. Point (v): Moulding the relief
58. It has been submitted by Mr. Pal appearing on behalf of the ICARE that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire gamut of facts of a case and pass appropriate orders in order to give the parties complete relief and substantial justice. He submitted that in a given case the Court may also give a direction in favour of the respondents in a writ petition, as, what is relevant while rendering justice is the consideration of interest and good conscious. Mr. Pal has drawn our attention to the judgments of the Supreme Court in Shangrila Food Products Ltd. and anr. vs. Life Insurance Corporation of India reported in 1996 (5) SCC 54 and Ramesh Chandra Sankla and ors. vs. Vikram Cement and ors. reported in 2008 (14) SCC 58.
59. In Shangrila Food Products Ltd. (supra) the Supreme Court considered whether the High Court could have re-opened a finalised litigation when the orders had not been challenged in proceedings under Article 226 or 227 of the Constitution of India. The Court held that the High Court in its exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of the case in order to pass appropriate orders to give the parties complete and substantial justice. The Court observed that one of the ends of equity is to promote honesty and fair play. If there be any unfair advantage gained by a party before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and direct the party to shed the unfair gain before granting relief. The High Court could not be faulted when it balanced the equities, held the Supreme Court. In Ramesh Chandra Sankla (supra) the Supreme Court observed that the power of the High Court under Articles 226 and 227 is very wide and can be exercised to meet the ends of justice. It has been held that it is not only within its power but also the duty of the High Court while exercising such power to advance the ends of justice and to uproot injustice. While granting relief the High Court is expected to balance equities by moulding the relief and passing an appropriate order which justice may demand and equities may project. Courts of equity should go much further, both to give and refuse relief in furtherance of public interest. The granting of relief or withholding it would depend upon considerations of justice, equity and good conscience.
60. These principles would equally apply to the Court deciding an appeal from an order of a learned single judge passed in exercise of the powers conferred under Article 226 of the Constitution. The application which has been filed by the College and ICARE, being CAN 7311 of 2013 was necessitated only because of the inertia on the part of the MCI in deciding the application for renewal submitted in November, 2012. Had the MCI been more cognizant of its duties and decided the application, subject to the result of their appeals, the present unfortunate situation would not have arisen. The inspection could have been carried out well in advance. To drive ICARE and the College to file independent proceedings at this stage would, in our opinion, be a travesty of justice. The subsequent events which have been brought on record are the inspection reports of the assessors of the MCI and the final order passed by the MCI indicating that although the College may have cured the deficiencies there was a need for physical verification.
61. After the impugned order dated 1st August 2012 was passed, the College sought renewal of the permission granted under Section 10A of the Indian Medical Council Act on 8th August, 2012 so as to admit students for the academic year 2012-13. ICARE and the College were informed by a letter dated 13th September, 2012 that their application was rejected under Regulation 8(3) of the MCI Regulations. It was contended therein that an application for renewal of permission must be made six months prior to the last date for grant of permission, which is 15th June of each year. The Central Government had extended the time to 30th June, 2013 for the current academic year. The MCI also pointed out in its communication that the time schedule must be strictly adhered to for the establishment of new colleges or for the additional intake in existing colleges as observed by the Supreme Court in the case of Mridul Dhar vs. Union of India reported in 2005 (2) SCC 65 and Priya Gupta vs. State of Chattisgarh reported in 2012 (7) SCC 433. In these circumstances the application for renewal of permission was rejected by MCI.
62. On 19th November, 2012 ICARE sought permission for the first renewal of the letter of permission for the academic year 2013-14 with hundred annual admissions in the MBBS programme. This application was obviously made well in advance of the cut-off date, 15th June, 2013. There was neither any acknowledgement of this application from the MCI nor were any steps taken by the MCI on the application. Reminders were sent to the MCI on 22nd April, 2013 and 29th April, 2013. Thus, ICARE had sought renewal of the permission sufficiently in advance, giving the MCI enough time to assess the infrastructural attributes of the college and other requirements. The MCI was completely apathetic. Even assuming it was because they had filed the present appeals, in our opinion the MCI could have decided the application without prejudice to its rights in the appeals as it had done in respect of the applications submitted by ICARE on 8th August, 2012. For reasons best known to it, MCI chose to sleep over the applications submitted.
63. It appears that the MCI carried out an inspection on 11th - 12th June, 2013, pursuant to the statement made by Mr. Bhattacharya, before the earlier Division Bench which was hearing these matters, but did not furnish the College a copy of the report. The application was rejected on 2nd July, 2013. However, that decision was not communicated to the College or ICARE and they learnt about it from the website of MCI on 3rd July, 2013. Immediately thereafter, on 4th July, 2013 the College and ICARE sought a copy of the report from the MCI and the reasons for the rejection of their application. On 8th July, 2013 a copy of their rejection letter dated 6th July, 2013 was given to the representative of ICARE when he visited the office of the Secretary of the MCI. However, the rejection letter did not describe the deficiencies nor did it mention the date for a personal hearing. On 9th July, 2013 the ICARE again sought a copy of the assessment report. However, ICARE was not informed the date for hearing. On 11th July, 2013 the website of the MCI indicated that ICARE had failed to appear for the hearing fixed on 9th July, 2013. Immediately thereafter the representatives of ICARE met the Chairman of the MCI, who informed them, orally, that their application dated 19th November, 2012 was being treated as an application for the second renewal for admitting the third batch of students. A list of deficiencies was also furnished to ICARE. A compliance report was submitted by ICARE on 13th July, 2013 indicating that all the deficiencies had been cured with respect to the second renewal as well. On 15th July, 2013 the MCI informed ICARE by email that a physical verification regarding the shortage of faculty and Resident Doctors would have to be undertaken. It reiterated that the application submitted by ICARE for admitting students to the third batch of hundred MBBS students for the academic year 2013-14 was rejected.
64. Mr. Kapoor for the College submitted that the MCI had not considered their application in the proper perspective. He pointed out that the application was for the first renewal for the second batch of hundred students for the MBBS programme for the year 2012-13. The learned Counsel submitted that the MCI had misdirected itself by considering the application for renewal as one for the second renewal for the third batch of the students when undeniably the second batch of students could not be admitted because of the pending litigation. He submitted therefore the College cannot be faulted for not having sought permission within the stipulated time and the result of the decision of the learned single judge cannot be defeated by MCI by a devious method of not completing the assessment within the requisite time. The learned Counsel further submitted that even assuming that the application of the College can be treated as one for the second renewal for the third batch of students, the College has complied with all the requisites and there are no deficiencies. He pointed out that the deficiencies, if any, are only to the extent of 6.6 per cent as assessed by the assessors of MCI, and therefore, these deficiencies can be ignored in view of MCI Regulations. He pointed out that the Sagar Dutta College and the Malda Medical College had been granted permission to admit students to the MBBS course without there being any infrastructure at all in both these colleges. We have already set out the deficiencies in these colleges which indicate that there is no infrastructure at all.
65. The learned Counsel for the MCI pointed out that renewal of permission is not relatable to the number of students who had been admitted or would be admitted, but to the number of years of existence of a college. According to him therefore since the college had been established in the academic session 2011-12, the application of the petitioners would have to be treated as a second renewal since the permission has to be renewed every year, for six years, from the year of establishment of the college, after which the college may be recognised. Mr. Bhattacharya also took objection to any reference being made to the Sagar Dutta College and the Malda College because the documents indicating their deficiencies were annexed to the supplementary affidavit filed by the College and ICARE which had been served on him at the last moment, after he had finished his arguments.
66. This submission of Mr. Bhattacharya regarding service of the documents is untenable. The same documents have been annexed to writ petition No. 4481(W) of 2012 which has been referred to us and has been considered by us along with appeals. No affidavit in reply to the writ petition has been filed by the MCI, nor did the MCI deem it proper to instruct Mr. Bhattacharya on the obvious discrimination displayed by it in accepting and granting a letter of permission to the Malda Medical Hospital and College of Medicine and Sagar Dutta Hospital, Kolkata. That permission was granted on the basis of an undertaking given by the Additional Chief Secretary, Government of West Bengal, that the deficiencies which we have set out earlier would be cured. The permission was granted to establish the colleges by reviewing the earlier order of rejection of the Board of Governors of the MCI only because of an undertaking submitted by an officer of the Government.
67. The procedure for the renewal of permission to establish a Medical College is stipulated in Regulation 8(3) of the MCI Regulations. It also indicates when deficiencies are curable or can be ignored. It reads as under:
"8 (3) (1). The permission to establish a Medical College and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the Medical College and expansion of the hospital facilities are completed and a formal recognition of the Medical College is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
PROVIDED that in respect of
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):
If it is observed during any regular inspection of the institute that deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 60%, such an institute will not be considered for renewal of permission in that Academic Year."
68. We have seen the assessment report dated 12th June, 1993 produced before us by Mr. Bhattacharya for the MCI as directed by this Court in its order dated 5th June, 2013. It appears that according to the MCI there was a shortage of the teaching faculty inasmuch as there was a lack of Senior Residents and Associate Professors. The MCI suggested that the situation can be corrected and the deficiencies of four Associate Professors can be set off against the part time professors who had been recruited in excess. The deficiencies in the number of Senior Residents were suggested to be set off against the additional Assistant Professors. Accordingly, having setting off those posts, there was a remaining deficiency of three Junior Residents and two Senior Residents which would total to 15.2 per cent deficiency in the infrastructure. Despite this, the total number of posts required was 158 and available staff was 159. As seen from Regulation 8(3) a deficiency of less than 30 per cent for third year that is the second renewal can be rectified. A deficiency of the teaching faculty and/or Residents which is less than 30 per cent need not hinder the consideration for renewal of permission in that academic year. We have been informed by Mr. Kapoor appearing for the college that even these deficiencies, if at all, could be rectified within a short period by the College.
69. The assessment of the inspection conducted on 11th and 12th June, 2013 reads as under :
"We visited the Icare Institute of Medical Sciences & Research on 11th & 12th June 2013.
Following things have been noted.
1) College & Hospital Building is in a single campus are well built, maintained & infrastructure is available.
2) Staff is as per report & laboratories are well maintained.
3) Para clinical staff including laboratory technicians is available.
4) Hospital is available & No. of patients required needs to be improved.
NICU/PICU needs to be improved.
5) Dental College is situated in same campus.
It is housed in five blocks. The Dental College buildings of five blocks are separated from Hospital & College buildings. Hostel for students is common to both. Dental College building has separate entry and they are coloured in blue. Medical College & allied buildings are white coloured.
The first batch of admission was in 2011 of 88 students. They appeared in exam at Kolkata in 2012 and result was zero (all fail).
They appeared in supplementary exam in 2013 at Kolkata and this result is awaited.
Pending result, vacation & due to rains the students have gone home. The classes for II MBBS may be started pending result of supplementary exams."
70. The contention of the State, the MCI and the University that the Dental College exists within the campus and in the same building is no longer true. That deficiency has been cured as seen from the report of the assessors. The Dental College is housed in five blocks which are separated from the Hospital and the Medical College building. It has a separate entrance. However, the students' hostel for both the colleges is common.
71. We have not found any Regulation which indicates that there cannot be a common hostel for students if the area specified for the Medical College students is available for them. Indeed, the Assessors have not found that there is any lack of space.
72. All the submissions of Mr. Bhattacharya regarding the infrastructure of the College are of no avail to the MCI, especially when they have filed an affidavit and admitted that it was not due to the lack of infrastructure that the renewal was denied but because of suppression of facts when the permission was first granted. We have already held that there was no suppression of facts. The renewal therefore ought to have been automatic provided the infrastructural requirements were met.
73. In our opinion therefore the MCI has illegally, mala fide and without reason refused to renew the permission for admission for the third batch of hundred students. However, since MCI desires to have a physical verification we direct that such physical verification be conducted within one week and the permission be renewed within week thereafter.
74. In Priya Gupta's case (supra) the Court had delineated the manner in which the admissions to Medical Colleges were to be regulated. The Court noted that the time schedule for admissions to professional colleges are governed by its earlier judgments and the schedule notified by the MCI. The last date for joining the allotted College and course is 31st July. The date of commencement of the academic session is 1st August. The Court observed that this schedule must be strictly adhered to and that after 15th July, of each year, neither the Union of India nor the Medical Council nor the Dental Council should issue recognition or approval for the current academic year. If such approval is granted after 15th July of any year it should be operated for the next academic year. Where a college was granted permission for admitting students subsequent to 15th July of the current academic year it would be liable for withdrawal of recognition/approval in addition to any students who were admitted or who are wrongly admitted to the College. The Court however recognised that the State Government and MCI and Colleges do violate the time schedule with impunity in order to give admission to students in an arbitrary manner. Therefore, the Court held that there should be strict adherence to the principle of merits and midstream admissions should be avoided while having a transparent, non- exploitative and fair admission process.
75. However, the Supreme Court departed from this rule in Asha vs. Pt. B.D. Sharma University of Health Sciences and Ors. reported in (2012) 7 SCC 389. The Supreme Court observed as follows:
"38.2. Question (b): 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counselling by 15th September of the relevant academic year (in terms of the decision of this Court in Priya Gupta). Thereafter, only in very rare and exceptional case of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the Court. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year.
This, however, can be done if the conditions stated by this Court in Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction. 38.3. Questions (c) & (d): Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of the rules, regulations and conditions of the prospectus, causing prejudice to the rights of the of the students, the court shall award compensation to such students as well as direct initiation of disciplinary action against the erring officers/officials. The court shall also ensure that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment. Where the admissions given by the authorities concerned are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course."
Having regard to the aforementioned observations of the Supreme Court, in our opinion there is no impediment in the way of the students continuing their medical education in the College. This case is fraught with exceptional circumstances where the State, the University and the MCI have acted with ulterior motives and raised unnecessary and frivolous objections for revoking the permissions granted earlier. This has resulted in the students' career being jeopardised. We therefore agree with the view of the learned single judge that the students who are before us and others similarly situated are entitled to continue their education in the College. The petitioner in W.P. no. 25229(W) of 2012 has sought a transfer to any other Medical College. She will have to apply for such a transfer in accordance with law and the Rules governing such transfer.
76. In the peculiar circumstances of the present case we have no doubt that the MCI intentionally, mala fide and with ulterior motive has refused to consider the application submitted by the College in November, 2012 for the academic session 2013-14 within a reasonable time. It has thus defeated the entire process by not assessing the College till an order was passed by this Court on 5th June, 2013. Arbitrariness is writ large on the conduct of the appellants, namely, the Government of West Bengal, the West Bengal University of Health Sciences and the MCI. It was only after this Court recorded the statement made that the MCI would conduct the assessment by a particular date that the report was submitted. As we have already observed the assessment report indicates that there is a minor deficiency which can always be cured.
77. In these circumstances, the appeals are dismissed with costs quantified at Rupees ten thousand in each appeal. The Writ Petitions filed by the students are allowed to the aforesaid extent. We pass the following order:
1) The State shall restore the essentiality certificate within one week from today.
2) The University will restore the affiliation within a week.
3) The MCI shall restore the letter of permission granted earlier within one week.
4) The MCI will carry out physical verification of the faculty available for the College, if so desired and will grant permission for the third batch on the basis of the second renewal within two weeks from today.
5) The University shall register each student who has been
admitted in the academic session 2011-2012
immediately.
6) The College is entitled to admit students for the academic
year 2013-14 and may charge fees subject to the approval of the fee structure. The Fee Committee is requested to issue orders regarding its approval or otherwise of the fee structure suggested by the College within two weeks from today. The Admission Monitoring Committee will also consider the selection process immediately and the College may admit students accordingly.
78. Urgent certified photocopies of this order and judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Kanchan Chakraborty, J) (Nishita Mhatre, J.) All the appellants, i.e., the State, the University and the MCI seek stay of this order. The learned Advocate for the College and ICARE oppose this application vehemently.
This order is stayed for a period of two weeks. However, the MCI will carry out the physical verification, if so desired, within that period without prejudice to the rights and contentions of the parties.
Let photostat plain copy of this order and judgment, duly countersigned by the Assistant Registrar (Court), also be given to the parties upon usual undertaking.
(Nishita Mhatre,J.) (Kanchan Chakraborty, J.)