Dr. Arvind Kumar Pandey & Anr. vs Union Of India & Ors.
2010 Latest Caselaw 4457 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 22nd September, 2010.

+        W.P.(C) No.6300/2010 & CM No.12499/2010 (for interim relief)

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         DR. ARVIND KUMAR PANDEY & ANR.             ..... Petitioners
                      Through: Ms. Kamini Jaiswal, Mr. Abhimanue
                              Shrestha & Mr. Divyesh Pratap Singh,
                              Advocates.

                                      Versus

         UNION OF INDIA & ORS.                                 ..... Respondents
                      Through:            Mr. Madan Gera, Adv. for R-1, 3 & 4
                                          with Mr. Kamla Mahtho, Assistant
                                          Administrative Officer of R-3.
                                          Mr. Mukul Talwar, Adv. for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     Yes

2.       To be referred to the reporter or not?              Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The two petitioners have preferred this writ petition for a direction to

the respondents to admit the petitioners in Super Specialty Medical Course

in the field of Magister Chirurgiae in Cardio Thoracic Vascular Surgery

(M.Ch. CTVS). The entrance test for admission to the Super Specialty

Medical Courses for the academic session 2010-11 was conducted by the

respondent no.2 Guru Gobind Singh Indraprastha University and the results

of the said test were declared on 15th June, 2010. The petitioners were on

11th and 14th position respectively in the merit list. The first counselling was

scheduled for 30th June, 2010. The University displayed five seats available

in the M.Ch. CTVS course i.e. four seats in respondent no.4 Dr. Ram

Manohar Lohia Hospital and one seat in respondent no.3 Safdarjang

Hospital & Vardhman Mahavir Medical College. The said five seats were

filled up in the first counselling with the candidates till the position 6 th in the

merit list with the first merit holder opting out.

2. It is the case of the petitioners that the University announced 2 nd round

of counselling but not in the course of M.Ch. CTVS. However, the Ministry

of Health & Family Welfare (respondent no.1) on 21st July, 2010 announced

two additional seats for M.Ch. CTVS course at Safdarjang Hospital &

Vardhman Mahavir Medical College for the academic session 2010-11. It is

the case of the petitioners that owing to the two additional seats having been

announced by the Govt. of India, the University extended the date of 2nd

round of counselling scheduled for 24th July, 2010 to 29th July, 2010 and on

29th July, 2010 prepared a waiting list of three candidates for the said course

with the petitioners having position 2nd and 3rd respectively in the said

waiting list.

3. One of the candidates who had joined M.Ch. CTVS course in Dr.

Ram Manohar Lohia Hospital is stated to have vacated his seat. The

petitioners filed this writ petition pleading that inspite of availability of three

seats in M.Ch. CTVS course i.e. one vacated in Dr. Ram Manohar Lohia

Hospital and two seats added by the Govt. of India in the Safdarjang

Hospital & Vardhman Mahavir Medical College, sufficient to accommodate

all three in waiting list prepared on 29th July, 2010, the respondents were not

admitting the petitioners.

4. The writ petition came up first before this Court on 17th September,

2010 when the counsel for the respondent no.2 University appearing on

advance notice stated that the first candidate in the wait list category shall be

considered against the vacant seat in Dr. Ram Manohar Lohia Hospital; with

respect to the two additional seats in Safdarjang Hospital allowed by the

Govt. of India, it was stated that Vardhman Mahavir Medical College

attached to Safdarjang Hospital till then had not applied to the University for

increase in the number of seats in the said course and unless such increase is

applied for and affiliation with respect to the same granted, the University

cannot admit students for the additional seats.

5. The Vardhman Mahavir Medical College was thus directed to file an

affidavit explaining the steps taken for giving effect to the increase in seats

sanctioned by the Govt. of India and the counsel for the University directed

to seek instructions whether there were any more vacancies as orally

contended by the counsel for the petitioners.

6. The affidavit as aforesaid has been filed on behalf of the Vardhman

Mahavir Medical College and Safdarjang Hospital stating that the Govt. of

India had vide letter/notification dated 21st July, 2010 increased two seats in

M.Ch. CTVS course; that the Vardhman Mahavir Medical College had on

3rd August, 2010 informed the University of the said increase and vide

another letter dated 9th August, 2010 requested the University to fill up the

increased seats in September session itself; however the University vide its

letter dated 31st August, 2010 had intimated the Vardhman Mahavir Medical

College that it had already conducted the entrance test for the academic

session 2010-11 and admissions had already been carried out and that for

increase in the seats in the Super Specialty Medical Course, the University

will conduct an inspection in due course of time and the additional seats will

be considered for academic session 2011-12.

7. The counsel for the petitioners invites attention to the Admission

Brochure issued by the University for admission to Super Specialty Medical

Courses for the academic session 2010-11. Clause-4 of the said Brochure

gives the tentative number of seats available with a note that the seats

intimated are provisional and are likely to change depending upon the

approval of the Medical Council of India (MCI)/Govt. of India/University

and the final seats will be notified before the commencement of counselling.

It is contended that the two additional seats in Safdarjang Hospital were

sanctioned before the 2nd round of counselling notified on 23rd July, 2010. It

is next contended that recognizing the said increase only the University held

the 2nd round of counselling for M.Ch. CTVS course and prepared a wait list

on 29th July, 2010. Much emphasis is laid on the University having made

each of the candidates in the wait list pay the fees. Attention is invited to

Clause-15 of the Admission Brochure providing for the 2nd round of

counselling. It is contended that had the University not intended to admit

against the additional seats in Safdarjang Hospital, the 2 nd round of

counselling on 29th July, 2010 would not have been held and wait list would

not have been prepared. Lastly, it is contended that there is no justification

for the University taking a stand that it will not admit students against the

two additional seats in the current academic session and would admit in the

next academic session only. It is argued that the Govt. of India before

increasing the seats must have already conducted the inspection and has

increased the seats only after satisfying itself and University does not require

inspection. It is argued that if there were no seats, why was the wait list

prepared. It is contended that as per the judgment of the Apex Court in

Mridul Dhar Vs. Union of India (2005) 2 SCC 65 also, the admissions can

be made till 30th September, 2010 and there is still time for admissions. It is

urged that the seats should not be allowed to go waste. It is also informed

that the University after filing of the writ petition issued a notification dated

18th September, 2010 with respect to one seat vacated in Dr. Ram Manohar

Lohia Hospital. Such act of the University is urged to be contumacious.

8. The University though has not filed any counter affidavit but the

counsel for the University has handed over a compilation of documents and

considering the urgency expressed, the same has been allowed and the

documents taken on record.

9. The counsel for the University has drawn attention to Clause-13.4 (v)

of the Admission Brochure to show that the candidates admitted during the

first found of counselling are not to be considered for 2nd round of

counselling even if withdrawn their admissions by the due date for

withdrawal. The counsel for the University controverts that the wait list with

the names of the petitioners was prepared and the fee received from them in

the 2nd round of counselling or owing to the increase in the number of seats.

Attention is invited to Clause-16 of the Admission Brochure which provides

for the preparation of the wait list after the seats are filled up during the 2 nd

round of counselling. It is contended that the wait list on the basis whereof

the petitioners claim relief was prepared in accordance with Clause-16 and

as per which Clause the candidates in the wait list were required to deposit

the fee. It is further urged that the petitioners in the writ petition also have

admitted the said procedure but are now arguing to the contrary. From the

compilation of documents handed over, it is shown that the Vardhman

Mahavir Medical College had on 6th April, 2010 applied for affiliation for

the current academic year for only one seat in M.Ch. CTVS course. From

the report of the inspection conducted by the University for granting

affiliation for that one seat, it is shown that the Associate Professor in the

department of CTVS was not found and thus the report was of "Unit

composition is incomplete. Associate Professor is to be appointed urgently".

It is contended that thus Vardhman Mahavir Medical College does not fulfill

the norms of affiliation for even one seat in M.Ch. CTVS course but on the

assurance that the Associate Professor shall be appointed urgently, the Board

of Affiliation of the University in its meeting held on 20th May, 2010 granted

"provisional affiliation" to the Vardhman Mahavir Medical College for one

seat in M.Ch. CTVS course for the academic session 2010-11. It is thus

contended that when the affiliation even for one seat is "provisional" and

norms even for that were not found satisfactory, the University cannot be

expected to grant affiliation for the two additional seats. It is stated that after

sanction of additional seats and upon receipt of letters aforesaid from the

Vardhman Mahavir Medical College, the Board of Affiliation of the

University again met on 18th August, 2010 and decided against affiliation for

the aforesaid reasons and also for the reason of both rounds of counselling

having been completed. It is further pointed out from the notice issued of

the 2nd round of counselling that since there were no vacancies in that

course, no 2nd round of counselling for that course was scheduled and the

petitioners had appeared only pursuant to notice for preparation of wait list

in accordance with Clause-16 of the Admission Brochure. It is further

informed that the wait list is prepared to prevent the seats from going waste.

It is lastly contended that at this stage seats cannot be permitted to be

increased also for the reason that those who have taken admission in the first

round of counselling and who as per the admission procedure are now in-

eligible cannot be deprived of opting for the additional seats.

10. The counsel for the petitioners in rejoinder reiterates her contention.

11. Affiliation is not an empty exercise. The University was established

under the Guru Gobind Singh Indraprastha University Act, 1998 enacted by

the Legislative Assembly of NCT of Delhi. Section 4(2) of the said Act

provides that no College or Institution situated within the jurisdiction of the

University (i.e. the National Capital Region) shall be "compulsorily

affiliated" to the University and "affiliation shall be granted by the

University" only to such College or Institution as may agree to accept the

Statutes and Ordinances of the University. Section 16 of the Act constitutes

the "Board of Affiliation" as an authority of the University. Section 21

makes the said Board of Affiliation responsible for admitting Colleges and

Institutions to privileges of the University. Section 28 empowers the

authorities of the University (and of which Board of Affiliation is one) to

make Regulations for conduct of their business. Statute 24 of the University

relates to the conditions under which Colleges & Institutions may be

admitted to the privileges of the University. One of such conditions is that it

has been granted a No Objection Certificate by the concerned State

Government and recognition by the appropriate statutory authority wherever

applicable, for the subjects and courses of study for which affiliation is

sought. Other conditions relate inter alia to i) suitable and adequate physical

facilities in terms of space, accommodation, laboratories, workshops,

equipments, library, furniture, infrastructural facilities etc; ii) existence of

teachers and other employees having qualification and eligibility criteria and

in such numbers as per norms laid down by the University; iii) the College /

Institution agreeing not to admit students in excess of number permitted by

the University, etc. Statute 24 further provides that it shall be open to the

University to reject a request for affiliation or to grant it in whole or in part

mentioning subjects and courses of study and number of students to be

admitted. The University is also required to inspect the College / Institution

seeking affiliation and empowered to suspend and withdraw affiliation.

12. It will thus be seen that the Act under which the University has been

established does not require the University to grant affiliation to College /

Institution or courses recognized by statutory authorities as Medical Council

of India (MCI) on whose recommendation the Government grants

permission, automatically. Rather, wherever such recognition is applicable,

the same is but one of the conditions for affiliation.

13. The contention of the counsel for the petitioners that the University

need not conduct inspection owing to the Govt. of India having satisfied

itself cannot be accepted and more so when the affiliation granted earlier for

existing seat was also provisional.

14. Though the counsel for petitioners has not argued that it is mandatory

for University to grant affiliation but I may notice that the Supreme Court in

State of Tamil Nadu Vs. Adhiyaman Educational & Research Institute

1995 (4) SCC 104 and in Jaya Gokul Educational Trust Vs.

Commissioner & Secretary, Higher Education Department, Kerala (2000)

5 SCC 231 even though holding that the provisions of the University Act

regarding affiliation to the extent they are contrary to the Central Act (in

that case All India Council for Teacher Education Act, 1987) will be

deemed to be unenforceable, nevertheless did not take away the power of

the University to affiliate and both the cases were disposed of with the

direction to the University to consider the application for affiliation. On the

same parity of reasoning, I find that the affiliation by the University cannot

be given a go by merely because the Govt. of India on recommendation of

the MCI has increased the number of seats. The University still retains its

rights to in accordance with its Act, Statutes and Regulations consider

whether to affiliate or not, though on reasons not inconsistent with the

Indian Medical Council Act, 1956. I have recently dealt with the said

aspect in detail in W.P.(C) No.4771/2010 titled Gitarattan Institute of

Advanced Studies & Training Vs. Director Higher Education decided on

13th August, 2010 but since the counsel for petitioners has not argued on

this aspect, need is not felt to reiterate the reasons stated therein.

15. I find that the principle of the aforesaid two judgments was recently

applied to Medical Colleges also in Mata Gujri Memorial Medical College

Vs. State of Bihar (2009) 16 SCC 309. However in that case the University

was withholding affiliation only for the reason of absence of approval by

the State Govt. as required under the University Regulations. The Supreme

Court held the approval of the State Govt. to be not necessary and hence

directed the University to grant affiliation. However in the present case, the

University has found the Vardhman Mahavir Medical College to be not

equipped and the affiliation for existing seat is also provisional. The

University is within its right to refuse affiliation and cannot in the

circumstances be directed to admit petitioners even without affiliation for

additional seats. The Supreme Court in Laxmi Sharma Vs. Vice-

Chancellor Chhatrapati Shahuji Maharaj University (2006) 9 SCC 138

held that the Court cannot direct the University to grant affiliation and can

only request University to consider grant of such affiliation. However in

the present case the matter of affiliation for additional seats having been

considered by the Board of Affiliation of the University on 18 th August,

2010 and no error being found in the decision, need is not felt to direct the

University to re-consider the affiliation.

16. I am also unable to agree with the contention of the counsel for the

petitioners that the University by any of its actions had agreed to make

admissions for the additional seats. The documents on record belie the

contention of the petitioners that the 2nd round of counselling was held for

the M.Ch. CTVS course and demonstrate that the wait list was prepared in

accordance with the Admission Brochure. The petitioners now appear to be

taking advantage of the preparation of the wait list in conjunction with the

increase in number of seats.

17. While it is correct that seats especially in such courses ought not to

be permitted to be wasted but in fact there is no seat till affiliation by the

University with respect thereto is granted. The argument is therefore

defective. Moreover, the said argument has to be balanced with the

requirement of admitting only such number of students who can be properly

given training and education. From the documents handed over by the

counsel for the University, I am satisfied that the Vardhman Mahavir

Medical College as of today is not equipped to admit the additional students

in M.Ch. CTVS course. Such Super Specialty Medical Course in the field of

medicine cannot be permitted in a half baked ill-equipped Institute/College.

The writ petition is therefore dismissed. No order as to costs.

Copy of this order be given Dasti under the signature of the Court

Master.

RAJIV SAHAI ENDLAW (JUDGE) 22nd September, 2010/bs..