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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.