Jhalawar Hospital & Medical ... vs Union Of India & Another
2010 Latest Caselaw 3645 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 6th August, 2010.

+        W.P.(C) No.5296/2010 & CM.No.10415/2010 (for interim relief)

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JHALAWAR HOSPITAL & MEDICAL
COLLEGE SOCIETY                                 ..... Petitioner
                Through: Mr. Sandeep Sethi, Sr. Advocate with
                         Mr. C.K. Sharma, Advocate.

                                      Versus

UNION OF INDIA & ANOTHER                                     ..... Respondents
                  Through:                 Mr. A.S. Chandhiok, ASG with Mr.
                                          Jatan Singh, Mr. Sandeep Bajaj and
                                          Mr. Ashok Singh, Advocates for UOI.
                                          Mr.Amit Kumar and Mr. Somesh
                                          Chandra Jha, Advocates for MCI.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may              No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a Society promoted by the Government of Rajasthan

was granted permission in the year 2008 for establishing a Medical College

in the backward district of Jhalawar with an intake of 100 students annually.

Thereafter permission to admit the students was renewed in the year 2009.

The petitioner similarly sought permission to admit 3 rd batch of students in

the academic year 2010. With a view to verify whether the prescribed targets

had been met by the petitioner college or not, the erstwhile Medical Council

of India (MCI) carried out inspection in March, 2010. A notice was issued

by the MCI to the petitioner pointing out the deficiencies found. The

petitioner responded to the said notice, explaining as to how the deficiencies

pointed out had been remedied. The erstwhile Medical Council of India was

satisfied with the said response of the petitioner and recommended the case

of the petitioner to the Central Government for permission to admit students

in the current academic year also. However, before the permission could be

granted to the petitioner, the Medical Council of India was superseded by

Board of Governors vide Ordinance dated 15th May, 2010. The Board of

Governors in super-session of MCI again carried out inspection in June,

2010 and without giving any notice to the petitioner, pointing out any

deficiencies and without hearing the petitioner have vide letter dated 15th

July, 2010 refused permission to the petitioner to admit students in the

academic year 2010.

2. A similar matter was considered by this court in WP(C) 4901/2010

titled Azeezia Institute of Medical Sciences & Research Vs. Union of

India decided on 28th July, 2010; for the reasons stated therein an

opportunity was granted to the College for hearing and the Board of

Governors directed to reconsider the matter, if necessary, after inspection of

the Institute of the petitioner therein. The same order was also made on 4th

August, 2010 in WP(C) 5187/2010 titled Sri Kanchi Kamakoti Peetam

Charitable Trust Vs. Union of India.

3. The counsel for the respondent no.2 Board of Governors in

supersession of MCI has contended that in the present case the inspection of

June, 2010 has inter alia found shortage in teaching staff of 8.7% while the

relaxable limit is to the extent of 5% only. It is contended that owing to the

said report of the team which inspected in June, 2010, no case for

reconsideration is made out. The senior counsel for the petitioner has

responded by contending that the Inspection Team did not consider the

teaching staff which was absent on the date of inspection and/or who could

not immediately produce their original certificates. It is contended that

explanation in this respect was given by the petitioner vide its letter dated

23rd July, 2010 and which has not been considered by the Board of

Governors. The senior counsel for the petitioner has further contended that

regard has to be given also to the fact that the petitioner is not a private

college but is a college of the Government of Rajasthan and is situated in a

backward area and is intended for the upliftment of the said area and minor

deficiencies should not come in the way of the petitioner college being

allowed to be established and to mature. Attention in this regard is invited to

order dated 13th August, 2009 in WP(C) 215/2009 titled Muthukumaraan

Educational Trust Vs. UOI, order dated 18th September, 2009 in WP(C)

295/2009 titled Society for T. Medical College Vs. UOI, order dated 9th

October, 2009 in WP(C) 460/2009 titled Government Medical College,

Jagdalpur Vs. UOI, and order dated 9th October, 2009 in WP(C)451/2009

titled State of MP Vs. Medical Council of India, of the Supreme Court of

India in relation to Government Colleges and whereby MCI was directed to

conduct a fresh inspection of the Government Colleges.

4. The question whether the deficiency beyond the permissible limits

exists in the petitioner college or not is not to be determined by this Court

and is to be decided by the Board of Governors. The fact remains that the

petitioner was not given any opportunity of hearing and/or to meet the

grounds on the basis whereof the Board of Governors has refused permission

to the petitioner. Thus there is no difference in the present case from the

aforesaid two cases decided by this court.

5. Accordingly, for the reasons stated in the judgment in Azeezia

Institute (supra), the Board of Governors in Supersession of MCI are

directed to grant an opportunity of hearing to the petitioner and if necessary,

to inspect the College and attached hospital and other records of the

petitioner and to thereafter take decision as to whether the petitioner is

entitled to renewal of permission to admit students for the current academic

year or not. Axiomatically, the order dated 15th July, 2010 refusing such

renewal is set aside. The senior counsel for the Board of Governors in

Supersession of MCI has suggested that this Court for the sake of

expediency fix a date of hearing. With the consent of the counsels, the

petitioner is directed to appear for hearing on 9th August, 2010 at 1800 hours

at the MCI Headquarters. Considering the time constraint, the respondent

Board of Governors in Supersession of MCI to complete the exercise as

expeditiously as possible and in any case well before the time available for

admission for the current academic year.

6. The senior counsel for the petitioner has further sought an order

enabling the petitioner to make admissions for the current academic year.

Reliance in this regard is placed on the judgment dated 23 rd July, 2010 of the

Division Bench of the Madhya Pradesh High Court in WP(C) 9653/2010

titled State of Madhya Pradesh Vs. UOI whereby the admissions were

permitted for the current academic year subject to the inspection ordered of

the Medical College. I am, however, not inclined to adopt the said course.

As of now, the petitioner has not been granted the permission by the Board

of Governors who alone are entitled to grant such permission to the

petitioner Medical College to admit the students. This Court has merely

directed the Board of Governors to give an opportunity of being heard to the

petitioner and reconsider. If in the interregnum admissions are allowed, the

rights of the students so admitted would also accrue; in the event of the

Board of Governors inspite of hearing not granting the permission to the

petitioner to admit students for the current academic year, the fate of the

students so admitted in the interregnum shall be left in lurch. This Court

thus cannot allow provisional admissions. The counsel for the respondent in

this regard has also relied upon Medical Council of India Vs. Rajiv Gandhi

University of Health Sciences 2004(3) SLR 773 where the Supreme Court

reiterated the law laid down in Union of India Vs. Era Educational Trust

2000(5) SCC 57 laying down that interim order should not be granted as a

matter of course, particularly in relation to the 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.

It was further held that directions for admissions of students in institutions

which are yet to get approval from the concerned authority ought not to be

made. I therefore do not find the petitioner entitled to the said interim relief

claimed.

The petition is disposed of in the above terms. No order as to costs.

CM.No.10416/2010 (u/s 151 CPC) Allowed subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) 6th August, 2010 M