Medical
Council of India Vs. Rajiv Gandhi University of Health Sciences & Ors [2004] Insc 246 (12 April 2004)
S. Rajendra
Babu , Dr. Ar. Lakshmanan & G.P. Mathur. Rjaendra Babu, J. :
[with
S.L.P. Nos. 21464-21552/2003 & 20385/2003] SPECIAL LEAVE PETITIONS (C) NOS.
21390- 21442 OF 2003, SPECIAL LEAVE PETITIONS Nos. 21464-21552/2003
A writ
petition bearing No. 39772/2002 is filed before the High Court of Karnataka for
a direction that the Union of India should be directed to grant renewal of
permission to the institution run by the first and second respondents. They
also sought for direction to make selection for admissions into the institution
for the academic session 2002-03 and to allocate students to enable
continuation of imparting education in the said institution.
A
permission has been granted to the first and second respondent's institution in
terms of Section 10-A of the Medical Council Act and also renewed for the
subsequent year. As it was not renewed in time for the academic year 2002-03,
they filed writ petition No. 39772/2002. The High Court by an interim order
dated 4.11.2002 directed the Medical Council of India (for short 'Council') to
complete the inspection by 11.11.2002 and send a report/recommendation
immediately to the Central Government for passing appropriate orders. In
pursuance of the above said order, the Council had sent its report to the
Central Government on 11.11.2002.
However,
till 15.11.2002, no order had been made by the Central Government. As the
renewal for permission was not granted to the institution concerned, MBBS seats
of the institution were not included in the seat matrix which had to end on
15.11.2002 and, therefore, in the absence of the institution not being notified
no admission had been done. Having regard to the fact that the permission had
been granted earlier and renewed for the previous years, the Council had also
sent a report regarding renewal for the current year, but unfortunately, the
Central Government did not act with necessary expedition as was needed in the
said case. As the counselling of Common Entrance Test is coming to end on
15.11.2002 and even if renewal was granted by the Central Government after that
date, 100 seats would go waste. The High Court, by an order made on 15.11.2002,
directed the Government to include the seats of the respondent's institution in
the seat matrix to allocate the same to the deserving students in accordance
with rules. By another order made on 03.12.2002, after adverting to the
decision of this Court in Union of India vs. Era Educational Trust & Anr.,
2000 (5) SCC 57, the learned single Judge of the High Court passed further
orders imposing conditions to the following effect :-
i) The
Central Government on consideration of the recommendations of the Medical
Council of India would grant the renewal of permission if the
petitioner-institution satisfies all the legal requirements within seven days
from the date of receipt of such recommendations.
ii)
Pending receipt of such permission being granted, the 4th respondent-State
Government is directed to issue seat matrix for 50 seats for the
petitioner-institution for the academic year 2002-2003 forthwith.
iii)
The 5th respondent CET Cell shall issue necessary advertisement and complete
the counselling and allot 50 seats included in the seat matrix to the eligible
students on or before 20th of December, 2002
iv) As
the students are admitted to the college in pursuance of the interim order
passed by this Court, even before the permission is granted by the Central
Government, it is made clear that this will not give any right to the students
or the college to claim credit for the classes conducted after the commencement
of the course till the permission from the Central Government under Section
10-A is accorded.
v)
Students are not entitled to appear in any examination until they complete the
prescribed minimum period of studies after the permission is granted under
Section 10-A
vi) No
further admission would be made to the first batch of MBBS course of the
petitioner institution except on vacancies arising from any of the students now
allotted or refusing to pursue their studies.
vii)
If any student who has been admitted to the petitioner college refused to join
the course, the petitioner college shall duly intimate the 5th respondent-CET
Cell and after confirming the same, is at liberty to admit the students to
those vacancies. Admission for such vacancies shall be filled up on or before 23rd December, 2002.
viii)
In the event of the petitioner failing to obtain the necessary permission from
the Central Government under Section 10-A, this order will not aid any equities
in favour of the petitioner institution or those students who have been
admitted in pursuance to the interim order passed by this Court.
ix) In
the event of the Central Government declining to grant permission under Section
10-A, the petitioner institution shall refund to the students admitted in
pursuance of this order, the entire fee collected by them and similarly the
students shall not claim any right to pursue the studies in the even of refusal
of such permission. The petitioner institution shall file an undertaking to
this effect before 10.12.2002, and all the students who are to be admitted in
pursuance of the interim order also shall given an undertaking to the CET Cell
before collecting the admission order.
x) In
so far as the payment of fee is concerned, the students shall pay the fee as
prescribed by the Government to the free seats, payment seats and the fee
payable by the student is subject to the same being worked out in terms of
eleven member judgment of the Supreme Court in T.M.A. Pai'' case.
xi)
The petitioner institution shall on production of the admission order issued by
the CET Cell shall admit the students without raising any objections.
xii)
It is made clear that having regard to the exceptional circumstances this order
is passed and it is further made clear that it shall not be precedent to any
institution approaching this Court.
xiii)
The Central Government is directed to consider the request of the petitioner
for renewal of the permission which is pending before them within fifteen days
from today.
Copy
of this interim order shall be handed over to the learned counsel appearing for
all the parties forthwith." As a consequence of this order having been
made, some of the students on not being permitted to take first year
examination scheduled to be held in the month of September, 2003 they filed
writ petitions before the High Court. The High Court, by an order made on
28.08.2003, directed that they may be permitted to take the examinations for
the first year MBBS scheduled to commence in the month of September, 2003 by
accepting the examination fee tendered by them on or before 29.08.2003 or such
other date as the University may fix subject to the result of the said writ
petition.
As
against that order writ appeals were filed before the High Court. The Division
Bench of the High Court in W.A. No. 6568-6619/03 and W.A. 6791/03, pending the
admission of the appeal, granted an interim relief. The High Court noted that
it could not allow the concerned institutions to perpetuate the illegality, but
in the circumstances of the case, declined to interfere with the order of the
learned Single Judge permitting the students to appear for the examination,
which was scheduled to be held from September 23, 2003 without making the
decision of the learned Single Judge a precedent.
It is
against this order dated 22.09.2003 passed in the writ appeals these petitions
have been filed.
Inasmuch
as the Council has not challenged the orders of the High Court by which
students were admitted and to which we have adverted to earlier and these
matters are still pending before the High Court for final consideration, we do
not think, this is a fit case in which we should interfere.
We
once again emphasis that the law declared by this Court in Union of India vs.
Era Educational Trust & Anr. (supra) that interim order should not be
granted as a matter of course, particularly in relation to matter where
standards of institutions are involved and the permission to be granted to such
institutions is subject to certain provisions of law and regulations applicable
to the same, unless the same are complied with. Even if the High Court gives
certain directions in relation to consideration of the applications filed by
concerned educational institutions for grant of permission or manner in which
the same should be processed should not form a basis to direct the admission of
students in these institutions which are yet to get approval from the concerned
authorities or permission has not been granted by the Council.
Now,
in the present case such orders have led to a stage on which the examination
was to take place and students have appeared in such examination and matters
are still pending final consideration by the High Court, we do not think it
necessary to say anything further in this matter.
The
petitions shall stand disposed of subject to the observations made by us.
SPECIAL
LEAVE PETITION (C) No. 20385/2003 Respondent No. 1 had established a Medical College and hospital, respondent No. 2. The college was granted
permission as provided under Section 10-A of the Medical Council Act for the
academic year 2001-02 to enable the college to make admissions of first batch
of students in the first year of the MBBS. However, on 4th and 5th June, 2002
the Inspectors of the Council conducted an inspection of the respondent college
for the purpose of renewal of permission for the academic year 2002-03. On
account of certain deficiencies the respondent college was not granted renewal
of permission for admission of 2nd batch of students of the college for the
academic session 2002-03.
The
inspection report of 4th and 5th June 2002 was considered by the Executive
Committee of the Council in its meeting held on 24.6.2002 and due communication
thereof was made to the respondents. On 2.7.2002, respondent Nos. 1 and 2 made
a communication stating that they have complied with the deficiencies pointed
out in the inspection report. By a communication dated 22.08.2002 the
compliance report sent by respondents Nos. 1 and 2 was disputed by the Council.
Another inspection for compliance verification was carried out by the Council
on 11th and 12th
October, 2002 and
deficiencies found in the said inspection report the Executive Committee of the
Council which met on 31.10.2002 did not recommend renewal of permission for
admission of 2nd batch of MBBS students. A communication dated 5.11.2002 was
sent to this effect which also indicated the deficiencies pointed out in the
inspection report. The respondents were also advised by a communication sent on
6.11.2002 not to admit fresh batch of students till the deficiencies are
rectified.
A writ
petition No. 42277/2002 was filed in the High Court praying for a direction
that the petitioners herein be directed to grant renewal of permission for
admission for the academic session of 2002-03 and that writ petition is still
pending adjudication before the High Court.
On
3.12.2002 a learned Single Judge of the High Court directed inclusion of the
annual intake capacity of the respondent college for the grant of admissions to
the first year of the MBBS course through CET for the year 2002-03. The learned
Single Judge after adverting to the decision of this Court in Union of India
vs. Era Educational Trust & Anr. (supra) made an order granting permission
for admission to the second batch of students in the 1st year of the MBBS
course; stipulating that in the event the Government of India declined to grant
permission in terms of Section 10-A of the Medical Council Act, the students
should not claim equities to pursue further studies and students who wanted to
be admitted in such colleges also had to give an undertaking to this effect.
The learned Single Judge also granted an interim order staying the operation of
the communication of the Government of India dated 6.12.2002 and the matter was
carried in appeal before the Division Bench of the High Court in Writ Appeal
No. 1603/2003. However, the writ appeal filed by the Council challenging the
orders dated 3.12.2002 and 4.12.2002 passed in the writ petitions referred to
earlier was dismissed as having become infructuous on the ground of subsequent
interim orders having been passed by the learned Single Judge.
When
the matter stood thus, even in terms of the order made by the learned Single
Judge on 3.12.2002 in Writ Petition no. 42277/2002, the requirements having not
been fulfilled in terms of the Medical Council Act, the college should have
discharged the students admitted for the academic session 2002-03 in terms of
the orders of the High Court itself as the Central Government has not as yet
granted permission to the respondent college renewing permission admitting the
students. But that part of the matter is not before us. What is pointed out now
is that when the respondent college sought for renewal of permission for the
subsequent year 2003-04; that when the said college was not entitled even for
admission for the academic session 2002-03, the High Court granted identical orders;
that
when the issue of admissions of students for the academic session 2002-03 was
still pending to be decided; that according to the Council such admissions are
contrary to law; that in terms of direction issued in the interim order dated
3.12.2002 the students have to be discharged and the Government of India had
passed an order on 13.6.2003 declining permission to the respondent college,
another interim order should not have been passed on 12.09.2003 directing
admissions of another batch of students for the academic session 2003-04 once
again completely disregarding the provisions of the Act and regulations made thereunder
and the decisions of this Court.
Aggrieved
by the order made on 12.09.2003 by the learned Single Judge in identical terms
that had been done on previous occasion in Writ Petition 42277/2002 the
petitioners preferred a writ appeal No. 33442-32443/2003 which was dismissed by
the Division Bench of the High Court. The High Court while dismissing the said
writ appeal noticed as follows :- "We find that the first respondent has
been permitted by the Government of India to establish a new college on
18.5.2001 and the college is running and admissions have been made for
2001-2002 and 2002-2003. We also find that the terms under which learned Single
Judge has granted interim relief is practically in terms of the conditions
imposed by the Supreme Court in para 11 of the decision in Union of India v.
Era Medical Educational Trust & Anr. 2002 (5) SCC 57. We find that learned
Single Judge has also taken care to ensure that no equities can be claimed in
the event of college not getting renewal for the year 2003-2004. In view of the
submissions made by learned counsel for the Medical Council of India, the
counsel for the institutions/medical college submitted that any other
reasonable further condition may be imposed to safeguard the students who may
be admitted." Thereafter, the High Court continued the order adding
further conditions.
There
is serious dispute between the parties as to what are the requirements to be
fulfilled to get necessary permission. Whether majority of the requirements
have already been fulfilled or not; whether all the primary conditions that
have been provided have been fulfilled or not; whether non- fulfilment of
certain other requirements which are of minor character should not come in the
way of grant of permission, are all such matters to be decided in the course of
the writ proceedings before the High Court rather than in these proceedings.
Therefore,
we do not wish to enter upon the controversy in this regard at this stage.
Law is
well settled that Section 10-A of the Medical Council Act which provides for
terms and conditions have to be fulfilled before starting or establishing a
medical college or starting higher courses making it clear that what is
postulated thereunder is evaluation of application made by the institution
concerned by the Central Government in the first instance and then forwarding
the same to the Medical Council of India for its further examination. There are
various steps envisaged under the Scheme such as
(a) issuance
of letter of intent by the Central Government on the recommendation of the
Council;
(b) issuance
of letter of permission by the Central Government on the recommendation of the
Council for starting admissions;
(c) issuance
of annual renewal to be granted by the Central Government on the recommendation
of the Council;
(d) at
the stage of 1st batch of students admitted in MBBS course go for final year
examination, grant of formal recognition by the Central Government on the
recommendation of the Council;
(e) if
at any stage after the grant of initial permission entitling permission of 1st
batch of students any college fails to fulfil the minimum norms in any
successive year, as per the statutory regulations, further admissions are
liable to be stopped at any stage.
In the
normal circumstances, the High Court ought not to issue an interim order when
for the earlier year itself permission had not been granted by the Council.
Indeed, by grant of such interim orders students who have been admitted in such
institutions would be put to serious jeopardy, apart from the fact that whether
such institutions could run the medical college without following the law.
Therefore,
we make it clear that the High Court ought not to grant such interim orders in
any of the cases where the Council has not granted permission in terms of
Section 10-A of the Medical Council Act.
If
interim orders are granted to those institutions which have been established without
fulfilling the prescribed conditions to admit students, it will lead to serious
jeopardy to the students admitted in these institutions.
Arguments
have been advanced before us that there should be transparency in the matter of
granting permission by the Central Government and Medical Council of India for
starting or continuing colleges; that the Council has to objectively look at
the matters in the matter of grant of permission and not withholding the same
on unnecessary or flimsy reasons; that the Council should also bear in mind
that when an institution has been established and initial permission has been
granted and thereafter large expenditure has been incurred by such institution,
the same should not be allowed to be withered away; that the Council should be
helpful for starting and establishing medical colleges which are absolutely
needed in this country and their attitude should be positve and not negative.
It is
unnecessary for us to examine all these aspects in the present case because
these matters arise out of interim orders passed by the High Court. All that we
need to emphasise in the present proceedings is that the High Courts should be
very cautious in the matter of issuing interim orders in such matters. If for
one year students are not admitted and writ petitions seeking for grant of
permission or renewal are considered by the High Courts quickly and appropriate
directions are issued to the Council by the High Courts to process such
applications and decision to give or refuse permission to continue such
institutions should be taken finally and it is only thereafter if further
difficulties arise, the same could be sorted out and not to grant permission to
the colleges year after year when only initial permission has been granted to
such educational institutions.
Subject
to these observations, these petitions stand disposed of.
We
direct that the observations made by us shall be communicated to all the High
Courts to be placed before the concerned Hon'ble Judges to take note of the
same.
The
special leave petitions stand disposed of accordingly.
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