Rohan Yadav & Ors. vs U.O.I. Thru Secy Ministry Of ...
2018 Latest Caselaw 3086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Court No. - 19
 
Case :- MISC. SINGLE No. - 26505 of 2018
 
Petitioner :- Rohan Yadav & Ors.
 
Respondent :- U.O.I. Thru Secy Ministry Of Health & Family Welfare & Ors.
 
Counsel for Petitioner :- Saurabh Lavania,Meenu Kumar,Mukund Nagarkar
 
Counsel for Respondent :- A.S.G.,Anil Kumar Mishra,Gyanendra Kumar Srivastav
 
with
 
Case :- MISC. SINGLE No. - 26839 of 2018
 

 
Petitioner :- Shashi Yadav
 
Respondent :- U.O.I. Thru. Secy. Ministry Of Health & Family Welfare & Ors
 
Counsel for Petitioner :- Prafulla Kumar Yadav
 
Counsel for Respondent :- A.S.G.,Gyanendra Kumar Srivastav,Pradeep Kumar Shukla,Ram Raj
 

 
Hon'ble Vivek Chaudhary,J.

1. Heard learned counsels for parties.

2. Petitioners in the aforesaid two writ petitions are all students, who have passed their M.B.B.S. course and have also completed their internship, but, are not getting their certificate to practice as a doctor and therefore they are also not getting chance to pursue their post graduation and, thus, have approached this Court.

3. The facts of the case, admitted and simply put, are that on 29.06.2012 the Medical Council of India (MCI), after carrying out its inspection and formalities with regard to Mayo Institute of Medical Sciences, Barabanki (Mayo Institute), issued a letter of permission under Section 10(A) of the Indian Medical Council Act, 1956 (MCI Act, 1956) for establishment of a medical college with intake capacity of 150 M.B.B.S. seats with effect from academic session 2012-13. U.P. Combined Medical Entrance Test (U.P. C.M.E.T.) for the said year was held which included the Mayo Institute also. Petitioners appeared in the U.P.C.M.E.T. and after being successful in the examination and councelling, were granted admission for the said academic session 2012-13 in the Mayo Institute.

4. On 19.06.2013, as the MCI was under suspension, the Board of Governors in charge, issued renewal of permission to the Institute. The said permission was revoked on 14.07.2013 but the same was set aside by an order dated 19.09.2013 by the Hon'ble Supreme Court in Writ Petition (C) No.693 of 2013 and the Mayo Institute was permitted to take admissions for the academic year 2013-14. For the academic year 2014-15 also, in pursuant of order of the Court, admissions were granted. However, for the academic session 2015-16, the Mayo Institute was not permitted to take fresh batch of students. For the academic session 2016-17, pursuant to the directions issued by an Oversight Committee formed by the Hon'ble Supreme Court, conditional permission was granted to the Mayo Institute to admit students.

5. Meanwhile, batch of 2012-13, to which petitioners belonged, continued their regular education of M.B.B.S. and their final examination was conducted in March, 2017 by the Dr. Ram Manohar Lohia Avadh University, Faizabad, U.P. (R.M.L. University). Having passed in the said examination, petitioners were issued certification of provisional (Medical) registration by the Medical Council of U.P. The said certificate was valid for one year and was sufficient for rotating internship. On 31.05.2017, Mayo Institute was permitted to admit fresh batch for academic session 2017-18. On 01.04.2018, petitioners completed their compulsory internship of one year (w.e.f. 01.04.2017 to 31.03.2018). On 02.04.2018, pursuant to completion of compulsory internship of one year, petitioners were provided their internship completion certificates also. Thus, all the petitioners completed their M.B.B.S. course as well as one year compulsory internship program, as required under law, and became eligible for receiving permanent registration number, from U.P. State Medical Council, as a doctor.

6. However, looking into the later conduct of the Mayo Institute, the Ministry of Health and Family Welfare, Government of India, on recommendation made by the MCI, by order dated 31.05.2018 decided not to grant permission of fresh batch for the academic session 2018-19. Mayo Institute challenged the order dated 31.05.2018 by a Writ Petition No.815 of 2018 before the Hon'ble Supreme Court which was dismissed by order dated 14.08.2018. There was no reference with regard to the batch of the petitioners in the said writ petition. Since, the petitioners were not being granted their Permanent (Medical) Registration, they also filed a writ petition before the Hon'ble Supreme Court being Writ Petition (C) No.1050 of 2018. By an order dated 10.09.20018, the said writ petition was dismissed by the Hon'ble Supreme Court, granting liberty to the petitioners to approach the High Court, notwithstanding the dismissal of the writ petition filed by the Mayo Institute by the Supreme Court. Therefore, petitioners have approached this Court.

7. The sole submission of the petitioners is, that, at the time they were getting their education from the Mayo Institute the same was duly recognized. There is no illegality in their admissions or completion of their education or in their internship. There is no adverse orders passed by any authority, be it MCI, the State Government or the Central Government with regard to them. For the entire period, in which they got their education at the Mayo Institute, the Institute was having required approval. Therefore, petitioners are entitled to be granted their Permanent (Medical) Registration number from U.P. State Medical Council.

8. The sole objection raised by the counsel for MCI is that the Mayo Institute was granted permission under Section 10(A) of the MCI Act but it could never get itself registered under Section 11 and, therefore, until the Mayo Institute is registered under Section 11, the MCI cannot recommend for registration of the students passing out from the said Institute. The stand of learned Additional Solicitor General for the Union of India is that unless a recommendation is made by the MCI, the Government cannot proceed further. Counsel for MCI placed reliance upon the judgment in case of Indian Centre for Advancement of Research and Education Haldia (ICARE) and Ors. Vs. Union of India (UOI) and Ors reported in (2017) 16 SCC 1.

9. I have heard counsels for the parties.

10. There is no dispute that the institution was having permission under Section 10(A) of the MCI Act for the entire period during which petitioners got education and completed their internship. Similar Situation, i.e., whether an institution which was having recognition earlier and later got de-recognized, occurred in number of cases and the Hon'ble Supreme Court had occasioned to decide the said issue. Relevant judgments on the said issue are:-

(i). AIR 1987 SC 2027; Civil Appeal No. 4161 of 1986 (Arising out of Spl. Leave Petn. (Civil) No. 3308 of 1986), Suresh Pal and Ors.Vs. State of Haryana and Ors. The said judgment reads:-

"1. Special Leave granted.

2. The certificate course in Physical Education in Shri Hanuman Vayayam Prasarak Mandal, Amravati, Maharashtra was recognized by the Government of Haryana in 1975 for appointment to the post of Physical Training Instructor in Govt. Schools in Haryana. On the basis of this recognition granted by the State of Haryana to the certificate course of physical education in this Institute in Amaravati, the petitioners joined the certificate course and were receiving instruction in this Institution until 9th January, 1985 when the State of Haryana derecognized the certificate course with the result that the certificates obtained by the petitioners at the end of the certificate course became useless for obtaining service as Physical Training Instructor in Haryana. The petitioners, therefore, filed a Writ Petition in the High Court of Punjab and Haryana for a writ directing the State of Haryana to recognise the certificates obtained by them, because they had joined the course on the basis of the recognition given by the State of Haryana and the recognition was in force at the time when they joined the course. The Writ Petition was however rejected summarily by the High Court and hence the present appeal by special leave.

3. We are of the view that since at the time when the petitioners joined the course, it was recognised by the Govt. of Haryana and it was on the basis of this recognition that the petitioners joined the course, it would be unjust to tell the petitioners now that though : at the time of their joining the course it was recognized, yet they cannot be given the benefit of such recognition and the certificates obtained by them would be futile, because during the pendency of the course it was derecognized by the State Govt. on 9th January, 1985. We would, therefore, allow the appeal and direct the State Govt. to recognize the certificates obtained by the petitioners and others similarly situate as a result of completing the certificate course in Shri Hanuman Yayayam Prasarak Mandal Amravati for the purpose of appointment as Physical Training Instructor in Govt. Schools in Haryana. Of course, if any person has joined the certificate course after 9th January, 1985 he would not be entitled to the benefit of this order and any certificate obtained by him from the said Institute would be of no avail. There will be no order as to costs of the appeal."

(ii). Apollo College of Veterinary Medicine Vs. Rajasthan State Veterinary Council and Others reported in (2015) 2 SCC 291. Relevant paragraphs of the said judgment read:-

"5. The writ petitions filed by the alumni and the students of the Apollo College were heard together and the Division Bench of the Rajasthan High Court, Jaipur Bench, Jaipur by a common judgment dated 17-11-2011 dismissed the writ petitions and upheld the orders, letters and notifications issued by the Veterinary Council of India/Union of India refusing to grant recognition to the Apollo College and the degrees granted to the students passed out from said College. Following the aforesaid decision, the learned Single Judge of the Rajasthan High Court, Jaipur Bench, Jaipur by the judgment dated 23-12-2011 dismissed the writ petition preferred by the students who have passed out from the Mahatma Gandhi College.

47. In the facts and circumstances of the case, we are of the view that the Division Bench of the High Court should have given a possible legal solution in respect to the students who have already passed out from the Apollo College and the Mahatma Gandhi College affiliated to Swami Keshwanand Rajasthan Agricultural University, Bikaner by directing the Central Government to make appropriate amendment in the First Schedule of the Indian Veterinary Council Act, 1984 so as to include the Apollo College and the Mahatma Gandhi College in the First Schedule for the purpose of recognition of BVSc & AH degree on or before 11-7-2011 insofar as it relates to Apollo College and 8-12-2011 in respect of Mahatma Gandhi College. We direct accordingly. So far as the other students who have been admitted in the Apollo College and the Mahatma Gandhi College and are pursuing their studies are concerned the Central Government is directed to call for a fresh report from the Veterinary Council of India and to pass appropriate order under Section 15(2) read with Section 21(4) of the Indian Veterinary Council Act, 1984. In case it is not possible to recognise the Apollo College and the Mahatma Gandhi College beyond such date as ordered above, the Veterinary Council of India is directed to take steps to transfer the students to some other recognised colleges against their corresponding year to complete the BVSc & AH course."

(iii). Medical Council of India Vs. M.G.R. Educational and Research Institute University and another reported in (2015) 4 SCC 580. Relevant paragraphs of the said judgment read:-

"42. We also find a substantial difference between the referred case and the present appeals inasmuch as in A.P. Christian Medical Educational Society [A.P. Christian Medical Educational Society v. State of A.P., (1986) 2 SCC 667] , the students had undergone one or two years of study. However, in the present appeals they have undergone the entire course of study and are now waiting to commence their internship. Having spent five years in pursuing their MBBS course, to now tell the students that they have simply wasted their time would hardly be a just and fair view to take. The students in the present case appear to be mere pawns in a bigger game played by the Institute and the College in which MCI, MH&FW, UGC and MHRD have participated as spectators. We cannot let the matter rest at that simply because the admission of the second batch of students in the academic year 2009-2010 has been recognised and approved by MHRD.

45. Therefore, since this issue has been debated and discussed from various points of view, and to strike a balance between competing interests, we are of the opinion that:

45.1 A student admitted by the Institution in the academic year 2009-2010 should be required to once again undergo the final examination--this time under the auspices of a State Health University located outside the State of Tamil Nadu, preferably Rajiv Gandhi University of Health Sciences, Bengaluru. The examination should be held within three months from today. The Institute will bear the expenses for conducting the said examination.

45.2 The Institute/State Health University/Rajiv Gandhi University of Health Sciences shall intimate to the Medical Council of India the proposed date of examination and the Medical Council of India shall appoint examiners to oversee the conduct of such examination. The Institute will bear the expenses for conducting the said examination.

45.3 If a student qualifies in the said examination, he/she may be allowed to begin his/her internship programme and on successful completion thereof, an MBBS degree shall be awarded by the Institute, subject to the final decision in Viplav Sharma case. If a student does not qualify in that examination, he or she may be given another chance to qualify after a gap of six months in a similar examination conducted under the auspices of a recognised University (but not deemed to be university) located outside the State of Tamil Nadu. The Institute will bear the expenses for conducting the said examination.

45.4 MHRD and MH&FW should put their house in order and ensure better and more effective coordination with each other as well as MCI and the UGC.

45.5 MCI, MH&FW, the UGC and MHRD should take a joint inspection of the facilities in the College within a period of two months from today to ascertain and determine whether the College should be allowed to admit students in the academic year 2015-2016 and whether it provides necessary facilities as required by law and the regulations.

45.6 Costs of Rs 5 crores deserve to be imposed on the Institute for blatantly violating the directions of MCI and MH&FW and creating a complete mess insofar as the students admitted to the second batch of MBBS course in the College in the academic year 2009-2010 are concerned. The amount will be deposited by the Institute in the Registry of this Court within four weeks from today. The amount of Rs 5 crores so deposited towards costs shall not be recovered in any manner from any student or adjusted against the fees or provision of facilities for students of subsequent batches."

11. Even in the judgment relied upon by the counsel for MCI i.e. Indian Centre for Advancement of Research and Education Haldia (ICARE) (Supra), in paragraph-44, the Supreme Court held:-

"44. Though we have so held, we think it appropriate to direct that the students who have been admitted in the respective courses shall be permitted to continue in the courses and the students who pass out from the institution, the MCI shall see to it that they are conferred degrees. The MCI is directed to conduct an inspection for recognition keeping in view the academic year 2018-19 and if during the inspection any deficiency is noticed, the same shall be intimated to the petitioner No. 2 institution and thereafter, process shall be carried out keeping in view the principles of natural justice in mind and the principles stated in IQ City Foundation (supra). The inspection shall be carried out as per the schedule by the MCI for grant of recognition for the academic year 2018-2019 and to avoid any kind of uncalled for situation, the application submitted for the academic year 2017-2018 shall be treated as application for the academic year 2018-2019. The bank guarantee furnished by the institution shall not be encashed by the MCI and the petitioners shall keep it alive."

13. In view thereof, Respondent No.4, Registrar, Dr. Ram Manohar Lohiya, Awadh University is directed to confer/grant M.B.B.S. degree to the petitioners and similarly situated students, who were admitted in the Mayo Institute for the academic session 2012-13 and have successfully completed their education and internship. Respondent No.2 MCI shall also grant petitioners their Permanent (Medical) Registration and Respondent No.5 U.P. Medical Council shall also register the petitioners in the State medical register.

14. With the aforesaid observations/directions, both the writ petitions are allowed.

Order Date :-08.10.2018

Arti/-

(Vivek Chaudhary,J.)