Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 21390-21442 of 2003
PETITIONER:
Medical Council of India
RESPONDENT:
Rajiv Gandhi University of Health Sciences & Ors.
DATE OF JUDGMENT: 12/04/2004
BENCH:
S. RAJENDRA BABU , DR. AR. LAKSHMANAN & G.P. MATHUR.
JUDGMENT:
JUDGMENT
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,
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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
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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.
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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
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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;
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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
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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
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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.