Bombay High Court
Praful Gopaldas Agrawal vs Union Of India, Through Its ... on 16 June, 2016
Bench: B.R. Gavai
16.6PIL.65.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
PUBLIC INTEREST LITIGATION NO. 65 OF 2015.
( Praful Gopaldas Agrawal .vs.
The Union of India, through its Secretary,
Department of Health
&
others )
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's orders
or directions and Registrar's orders.
Mr. A.A. Naik, Advocate with Mr. Amit Madiwale, Advocate
for petitioner,
Mrs. Mugdha Chandurkar, Advocate for respondent no.1,
Mrs. Bharti Dangre, G.P. for respondent nos.2 & 4,
Mr. R.M. Bhangde, Advocate for respondent no.3.
CORAM : B.R. GAVAI & V.M. DESHPANDE, JJ.
DATED : JUNE 16, 2016.
The present Public Interest Litigation has been filed by the
petitioner, who claims to be social worker praying for a writ of mandamus and
setting aside list of disapproved colleges published by the respondent No.1
Union of India in so far as the Government Medical College at Gondia is
concerned. The petitioner had also prayed for a writ of mandamus for a
direction to the Union of India to grant permission to start Medical College at
Gondia for the year 2015-16. However, since when the petition was filed, the
last date for admission for the academic session 2015-16 had already lapsed,
we had kept the matter pending so as to examine as to whether the reliefs
claimed in the petition could be granted for the academic year 2016-17.
Vide our order dated 8.10.2015 we had specifically noted that
Gondia district is a naxalite affected district and also situated in the backward
region. We had also observed that the Central Government itself had included
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Gondia in the list of places at which the Medical College is to be established
and for which the funds are to be provided by the Central Government. We
had, therefore, directed the State Government to give us time bound
programme within how much time the deficiencies as pointed out would be
removed.
The petition was heard on various dates. The State Government
had filed an affidavit of Additional Chief Secretary, Medical Education dated
18.11.2015. The said affidavit was considered by us in our order dated
27.11.2015. The time-table within which the deficiencies as pointed out by the
Medical Council of India could be removed was specified in the said affidavit.
Vide the said order, we had directed that all the deficiencies should be removed
prior to the period specified in the said affidavit.
When the matter was listed before us on 4.2.2016, Shri Tapadiya,
learned Counsel appearing on behalf of Medical Council of India, informed us
that because of the pendency of the present petition, the Medical Council of
India had given neither negative nor positive recommendation. We had,
therefore, vide the order of the said date directed the Medical Council of India
to submit a report to this Court within one week, so that if any deficiencies are
found in the assessment of the Medical Council of India, the State Government
could be directed to rectify the same, so that the Medical Council of India
again would have an opportunity to carry out the inspection to find out as to
whether the deficiencies were removed or not. Accordingly, a report was
submitted before this Court on 11.2.2016.
Vide our order dated 18.2.2016, we noticed that most of the
deficiencies as noticed by the Medical Council of India were removed and
whatever deficiencies were remaining were of a trivial nature. We had,
therefore, directed the State Government to remove those deficiencies on or
prior to 31.3.2016. We also directed the Medical Council of India to again
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inspect the facilities available at Government Medical College at Gondia and
find out as to whether the deficiencies at point nos. 2 to 14 and 17 to 20, which
according to the State Government were rectified, are in fact rectified or not.
We made it clear that upon re-inspection, the Medical Council of India would
be at liberty to give either positive or negative recommendation.
Though no order adverse to the interest of the Medical Council of
India was passed by us on 18.2.2016, the Medical Council of India, as is its
usual practice to challenge each and every order passed by this Court,
inasmuch as its members do not have to pay the hefty fees of the lawyers from
their own pocket, again challenged the order passed by this Court dated
18.2.2016 before the Hon'ble Apex Court. Their Lordships of the Apex Court
were pleased to dismiss the S.L.P. challenging the order dated 18.2.2016 vide
order dated 4.4.2016. However, the Medical Council of India was generous
enough to submit a fresh inspection report as was directed by us vide order
dated 18.2.2016. From the perusal of the report, we found that the Medical
Council of India did not find much deficiencies, except with regard to deficiency
of resident doctors. However, the State Government had filed an affidavit of the
even date stating therein that the deficiency of 33% would also be rectified prior
to 30.6.2016. Vide our order dated 28.4.2016 we noted the said statement to
be an undertaking on behalf of the State of Maharashtra. In order to ensure
that the entire process is completed before the cut-off date, we, therefore,
directed the Medical Council of India to use its judicious discretion and decide
as to whether it proposes to give negative or positive recommendation.
However, the same was directed to be done prior to 15.5.2016.
When the matter came before us on the last date, i.e. on 9.6.2016,
Shri Tapadiya, learned Counsel appearing on behalf of the Medical Council of
India, in the morning session made a statement before the Court that he was
not aware as to whether the recommendations given by the Medical Council of
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India were positive or negative. He also informed us that he had been informed
that the matter was pending before the Oversight Committee appointed by the
Hon'ble Supreme Court.
However, at that point of time itself, we were informed by Shri A.A.
Naik, learned Counsel for the petitioner as well as by Smt. Dangre, learned
Government Pleader and Smt. Chandurkar, learned Counsel for Union of India,
that as a matter of fact the Medical Council of India had given a negative
recommendation. It was informed to us that, however, the request was made
by the Union of India to the Medical Council of India, to reconsider the matter in
the light of specific undertaking given by the State Government. We had,
therefore, dictated the order issuing certain directions.
However, before the order could be signed, Shri Rahul Bhangde,
learned Counsel appearing for the Medical Council of India, mentioned the
matter before us and informed the Court that as a matter of fact, now after
reconsideration the Medical Council of India has given a positive
recommendation. He also placed on record the copy of the communication
dated 9.6.2016.
Since we were informed that the matter is pending before the
Oversight Committee appointed by the Hon'ble Supreme Court of India and
since that taking into consideration the adversarial attitude of the Medical
Council of India, we were apprehensive that it may not place the entire material
before the Oversight Committee, we had directed the State Government to
depute a responsible officer to appear before the Oversight Committee and
place the entire material including all the orders passed by this Court in the
present petition, so that the Oversight Committee will have an entire picture
before it, while taking decision in the matter.
Today, Mrs. Mugdha Chandurkar, learned Counsel for respondent
no.1 Union of India, has placed before us the letter of permission granted by the
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Union of India dated 15.6.2016, thereby accepting the recommendation of the
Medical Council of India and granting permission to the Government of
Maharashtra for establishment of new Medical College at Gondia with an
annual intake capacity of 100 MBBS students for the academic year 2016-17.
The said letter of permission is taken on record and marked 'X' for identification.
In view of the aforesaid letter of permission dated 15.6.2016, as a
matter of fact the petition has served its purpose, inasmuch as though the
petition was for a writ of mandamus for starting the Medical College for the
academic session 2015-16, now the Medical College will start from the
academic session 2016-17. We could have, therefore, very well disposed of
the petition by taking on record the aforesaid letter. However, our experience
with the approach and conduct of the Medical Council of India in last several
years while dealing with either grant of permission to start new Government
Medical Colleges or increase/reduction of seats in the Government Medical
Colleges compels us to make certain observations with regard to their conduct.
It has been noticed that whenever an issue arose either with regard
to increase of seats in Government Medical College at Nagpur, Indira Gandhi
Medical College, Nagpur, Government Medical College, Yavatmal, Government
Medical College, Akola, the attitude of the Medical Council of India has always
been adversarial and has made every attempt to see to it that the seats in these
Government Medical Colleges are not increased, even though the requisite
facilities were available. Not only that, on some of the occasions though in fact
there were no deficiencies, pointing out some hyper-technical deficiencies, the
Medical Council of India has attempted to act as a stumbling block in the
increase of the seats in the Government Medical Colleges.
At the cost of repetition, we may point out that the seats in the
Government Medical College enable the students from the middle class and
lower income group to take education in the medical field, inasmuch as the cost
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of taking education in the Government Medical Colleges as compared with that
in the private Medical Colleges is much much less.
Our experience tells us that even orders issuing directions to the
Medical Council of India to give some information or carry out inspections have
been challenged by them before the Hon'ble Supreme Court of India. As
observed by us hereinabove, the members of the Medical Council of India are
not required to pay the heavy fees of the Senior Counsel and the Advocates on
Record engaged by them from their own pocket. Ultimately when under the
orders passed by this Court the seats were increased in respect of the
aforesaid four colleges, the Medical Council of India again challenged the
same before the Hon'ble Apex Court. However, Their Lordships of the Apex
Court while disposing of the S.L.P. (C) No. 28989/13 dated 30.9.2013, directed
the orders passed by this Court to be complied with even though the outer cut-
off-date, i.e. 30th September had been lapsed.
Again when the issue came about starting Government Medical
College at Chandrapur, the Medical Council of India continued with its same
attitude of acting as a hindrance in starting the Medical College at Chandrapur.
Ultimately, after the matter was heard on various dates and after ensuring that
all the facilities at Chandrapur were available, vide order dated 8.7.2015 this
Court issued a writ of mandamus directing the Government of India to grant
permission to the Medical College at Chandrapur, irrespective of the negative
recommendation of the Medical Council of India. The said order also came to
be challenged by the Medical Council of India before the Apex Court. Their
Lordships of the Apex Court vide order dated 24.7.2015 dismissed the S.L.P.
(Civil) No. 19504/15.
Again in the present case, the attitude of the Medical Council of
India, since beginning has been negative. In view of the various orders passed
by this Court from time to time, the State Government had rectified almost all
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the deficiencies and had also given an undertaking to remove one deficiency by
30.6.2016 and though the Medical Council of India had also found that all
those deficiencies were rectified except the one, again it gave a negative
recommendation. However, it appears that on account of the pendency of this
petition, and in view of the various compliments that it received from this Court
from time to time, on this occasion after a request was made by Union of India
for reconsideration, a better counsel prevailed upon the Medical Council of
India, as in an urgent circulatory meeting by email conducted on 6.6.2016, it
has decided to recall its decision of giving negative recommendation and give
positive recommendation. It may not be out of place to mention that the
situation is not much different on the date on which it gave a negative
recommendation and the positive recommendation.
As has been observed by us that the entire conduct of the Medical
Council of India while dealing with Government Medical Colleges is entirely
casual and cavalier and is of such a nature so as to cause a stumbling block
and hindrance in opening of the Government Medical Colleges and increasing
its seats. As we have observed time and again, we are aware about our
limitations. We are also aware that we should normally not interfere with the
functioning of an experts body like the Medical Council of India. However,
when an experts body like the Medical Council of India acts in a manner which
prevents opening of the Government Medical Colleges or increase of seats in
the Government Medical College and thereby resultantly depriving the patients
from the backward areas of the medical treatment and the students from a
middle class or a lower income group to take admission in the Medical
Colleges, we are left with no other alternative than to pass orders in the
interests of public at large.
We are informed that the Hon'ble Supreme Court of India has
already appointed an Oversight Committee to look into the affairs of the
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Medical Council of India. We, therefore, direct the learned Standing Counsel
for Union of India to place this order before the Oversight Committee appointed
by the Hon'ble Supreme Court of India and also before the Union of India. We
are of the considered view that a time has come that entire re-look at the
constitution and functioning of such an expert body is taken. We have no
hesitation to say that at times the experts body like the Medical Council of
India, rather than acting in a larger public interest, acts detrimental to public
interest.
With these observations, the petition is disposed of.
Judge Judge
J.
