Union of India Vs. Era Educational
Trust & ANR [2000] INSC 196 (5 April 2000)
APRIL 5, 2000
Shah, J.
L.I.T.J Leave granted.
Heard learned counsel for the parties
exhaustively.
These appeals are filed by the Union of India
and the Medical Council of India respectively. It is to be stated that Medical
Council has not recommended for grant of permission to establish medical
college, yet Medical Council was not joined as a party respondent in the
petition before the High Court.
Normally, this Court would hesitate to
interfere with an interlocutory order, but in a case where prima facie it
appears that the said order cannot be justified by any judicial standard, the
ends of justice and the need to maintain judicial discipline requires us to do
so and to indicate the reasons for such interference without prejudice to the
rights of one side or the other.
It is unfortunate that the High Court of
Allahabad (R.H.Zaidi and Bhanwar Singh, JJ) exercised the extra-ordinary
jurisdiction under Article 226 of the Constitution of India, in an
extra-ordinary manner by granting interim mandatory relief to run Medical
College, despite the fact that the Central Government has rejected such
permission, after obtaining recommendation from the Medical Council twice.
The extra-ordinary powers under Article 226
are to be exercised for rendering justice in accordance with law.
Medical College cannot be established except
with the previous sanction of the Central Government as provided under the
Indian Medical Council Act, 1956 (102 of 1956).
Unfortunately, by granting this interim
mandatory order, without allowing the respondents therein time to file counter
affidavit, the Court not only violated the norms for grant of interim relief, but
has also violated the principles of natural justice and has allowed the
petition on the date of its admission. It is apparent that on the day when the
petition was presented, the Court straightaway granted mandatory order
permitting respondent No.1 to establish the Medical College. Learned counsel
who appeared on behalf of the Union of India sought an adjournment for filing
an affidavit in reply after obtaining instructions from the concerned
Department, but the same was refused.
This unusual relief was granted in a case
where respondent No.1 filed an application for consent of the Central
Government to establish the Medical College at Lucknow in January, 1997. That
application was considered, re- considered and the Medical Council had carried
out the inspection twice and finally on 04.6.1999 application was rejected by
the Central Government. In hot haste, in a case where there was no urgency, the
High Court by the impugned order dated 11.10.1999 directed that operation of
the impugned order dated 04.6.1999 passed by the Central Government shall be
stayed and the State of U.P. was directed to allocate the students to the
medical college for the purpose of admission. As such, it is to be stated that
by granting stay of the order passed by the Central Government it is difficult
to hold that that would amount to a permission to establish the medical
college.
May be that Order XXXIX of the C.P.C. would
not be applicable at the stage of granting interim relief in a petition under
Article 226 or 227 of the Constitution, but at the same time various principles
laid down under Order XXXIX for granting ad interim or interim reliefs are
required to be taken into consideration. In the case of Morgan Stanley Mutual
Fund v. Kartick Das [(1994) 4 SCC 225], after considering the various
authorities this Court laid down the guiding principles in relation to grant of
an ad interim injunction which are as under:
As a principle, ex parte injunction could be
granted only under exceptional circumstances. The factors which should weigh
with the Court in the grant of ex parte injunction are:
(a) whether irreparable or serious mischief
will ensue to the plaintiff.
(b) whether the refusal of ex parte
injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at
which the plaintiff first had notice of the act complained so that the making
of improper order against a party in his absence is prevented;
(d) the court will consider whether the
plaintiff had acquiesced for sometime and in such circumstances it will not
grant ex parte injunction;
(e) the court would expect a party applying
for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction
would be for a limited period of time.
(g) General principles like prima facie case,
balance of convenience and irreparable loss would also be considered by the
court.
Apart from Order XXXIX even with regard to the
Medical education, there are various decisions of this Court laying down the
principle that normally Court should not interfere and even if interference is
required in a case of unsustainable order, the authority should be directed to
re-consider the case on the norms prescribed under the Act and/or the Rules. In
Shivaji University v. Bharti Vidyapeeth and Others [(1999) 3 SCC 224], after
considering the order passed by the University, the Court directed the
University to re-consider the question in the light of the observations made in
the judgment. In similar set of circumstances, in Civil Appeal Nos.5045 and
5046 of 1998 in Medical Council of India, New Delhi v. State of H.P. and
Another, this Court on 16.2.2000 observed that since the refusal was based on
deficiences for running a Medical College, it would have been appropriate for
the High Court to have remitted the matter to the Medical Council of India or
the Union of India for reconsideration, even if it was of the opinion that the
order of the Medical Council of India deserved to be set aside and the Court
ought not to have issued a writ of Mandamus directing grant of permission.
Further, in Andhra Pradesh Christian Medical
Educational Society v. Government of Andhra Pradesh and another [(1986) 2 SCC
667], it was held that even in a case where students were admitted in the
Medical Colleges and who had continued their studies for more than a year, this
Court refused to recognise such admission and observed:
We regret that the students who have been admitted
into the college have not only lost the money which they must have spent to
gain admission into the college, but have also lost one or two years of
precious time virtually jeopardising their future careers. But that is a
situation which they have brought upon themselves as they sought and obtained
admission in the college despite the warnings issued by the University from
time to time.
The Court further observed:
Any direction of the nature sought by Shri
Venugopal would be in clear transgression of the provisions of the University
Act and the regulations of the University. We cannot by our fiat direct the
University to disobey the statute to which it owes its existence and the
regulations made by the University itself. We cannot imagine anything more
destructive of the rule of law than a direction by the court to disobey the
laws.
Similarly in Krishna Priya Ganguly and Others
v.University of Lucknow and others [(1984) 1 SCC 307], for granting interim
order, this Court cautioned thus:- that whenever a writ petition is filed
provisional admission should not be given as a matter of course on the petition
being admitted unless the court is fully satisfied that the petitioner has a
cast-iron case which is bound to succeed or the error is so gross or apparent
that no other conclusion is possible.
The Court further observed:
Unless the institutions can provide complete
and full facilities for the training of each candidate who is admitted in the
various disciplines, the medical education will be incomplete and the
universities would be turning out doctors not fully qualified which would
adversely affect the health of the people in general.
In the present case, this type of situation
has arisen because of interim order passed by the High Court without taking into
consideration various judgments rendered by this Court for exercise of
jurisdiction under Article 226. It is apparent that even at the final stage the
High Court normally could not have granted such a mandatory order.
Unfortunately, mystery has no place in
judicial process.
Hence, the impugned order cannot be justified
by any judicial standard and requires to be quashed and set-aside.
However, it appears that after passing of the
impugned order, respondent No.1 has started the Medical College. At the time of
admission and hearing of these matters, on 6.3.2000, this Court passed the
following order:
The learned Additional Solicitor General of
India submits that the facts of these cases require a stay order to be passed
today. On the other hand, learned senior counsel appearing for the students
submits that the matter may be taken up next Monday 13.3.2000 so that they can
file their counters. It is however, made clear that while we are granting an
adjournment today even if it is by one week this order will not be treated as a
refusal of granting stay.
The respondents cannot claim any equity in
their favour on account of the fact that stay was not granted today.
Whenever the interlocutory application is to
be taken up, it will be disposed of on the basis of the facts as existing
today.
Hence, considering the fact that the
respondent No.1 has started the college, students are admitted and that we are
setting aside the impugned order passed by the High Court, but as a specific
statement is made by learned counsel for respondent No.1 that all other
infrastructure requirements under the Regulations framed by the Medical Council
are/or will be complied with, and that 300 bedded hospital is likely to be
ready within a period of six months, we direct as under:- (1) The Medical
Council of India shall inspect within one month from today whether other
infrastructural requirements contemplated by the Regulations are complied with
by respondent No.1. If any deficiency is found, the Medical Council would
intimate respondent No.1 and respondent No.1 would see that the deficiencies
are removed;
(2) As soon as respondent No.1 is in a
position to complete the 300 bedded hospital, it would intimate the Medical
Council and the Central Government for carrying out inspection as required
under the Regulations. Thereafter within 15 days from the receipt of the said
communication, the Medical Council would carry out the necessary inspection and
if there is compliance with the conditions prescribed by the Medical Council of
India for commencement of the Medical College, it would recommend the Central
Government for grant of permission. If the recommendations are favourable,
within seven days from the receipt of such recommendations, the Central
Government would grant the necessary permission.
The Medical Council would carry out the
inspection without waiting for the inspection fees which could be recovered
subsequently;
(3) In the event permission under section 10A
of the Medical Council of India Act is granted by the Central Government, the
students who have been admitted to this College after the passing of the
impugned order by the High Court, shall stand allotted to the first year MBBS
Course of that college and the 1st MBBS Course will commence there from;
(4) In the intervening period, if respondent
No.1 College wants to carry on classes for teaching the students, it may do so
but this will not give any right to the students or the College to claim credit
for the said period prior to the date on which permission under section 10A is
accorded;
(5) Students will not be entitled to appear
in any examination until they complete the prescribed minimum period of studies
after the permission is granted under section 10A;
(6) No further admissions will be allotted to
the first batch of MBBS course of respondent No.1 Trust except on vacancies
arising from any of the students now allotted or refusing to pursue their
studies further;
(7) In the event of respondent No.1 failing
to comply with the MCI requirements including a 300 bed hospital and not being
accorded the permission under section 10A by the Central Government, this order
will not create any equities in favour of the respondent-Trust or those
students who have been admitted pursuant to the impugned order of the High
Court.
With the aforesaid directions, appeals are
allowed and the impugned order dated 11.10.1999 in Civil Writ Petition No.4387
(MB) of 1999 passed by the High Court of Allahabad is hereby quashed and set
aside.
Ordered accordingly.
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