Delhi High Court

Dr. Afzal Hussain & Ors. vs Union Of India & Ors. on 30 May, 2012

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 30th May, 2012

+                           LPA No.430/2012

%      DR. AFZAL HUSSAIN & ORS.                 ....Appellants
                    Through: Mr. Sunil Malhotra with Mr.
                             Abhishek Puri & Mr. S. Khan, Advs.

                                         Versus

       UNION OF INDIA & ORS.                                    ..... Respondents
                    Through:                Mr. B.V. Niren, Adv. for UOI.
                                            Mr. Nidhesh Gupta, Sr. Adv. with
                                            Mr. Amit Kumar, Mr. Ashish Kumar
                                            & Mr. A. Tripathi, Advs. for R-2.
                                            Mr. Anish Dayal & Mr. Siddharth
                                            Vaid, Advs. for R-3&4.

                                         AND

+                           W.P.(C) No.2779/2012

%      DR. AFZAL HUSSAIN & ORS.                 ....Appellants
                    Through: Mr. Sunil Malhotra with Mr.
                             Abhishek Puri & Mr. S. Khan, Advs.

                                         Versus

       UNION OF INDIA & ORS.                                    ..... Respondents
                    Through:                Mr. B.V. Niren, Adv. for UOI.
                                            Mr. Nidhesh Gupta, Sr. Adv. with
                                            Mr. Amit Kumar, Mr. Ashish Kumar
                                            & Mr. A. Tripathi, Advs. for R-2.
                                            Mr. Anish Dayal & Mr. Siddharth
                                            Vaid, Advs. for R-3&4.



LPA No.430/2012 & W.P.(C) No.2779/2012                                Page 1 of 8
 CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                   JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The intra-court appeal was preferred impugning the order dated

14.05.2012 of the learned Single Judge dismissing the application for

interim relief in W.P.(C) No.2779/2012 preferred by the appellants. The

nine appellants are the aspirants for admission to the Post Graduate Medical

Courses in the respondent No.3 Jawahar Lal Nehru Medical College

(JLNMC) affiliated to the respondent No.4 Aligarh Muslim University

(AMU) and had filed the writ petition seeking a mandamus to the Medical

Council of India (which Council has been superseded by the Board of

Governors and hereinafter referred to as MCI) and the Union of India (UOI)

to increase the number of seats in the Post Graduate Courses in the JLNMC

in terms of policy of UOI and amendment brought about to the Post

Graduate Medical Education Regulations, 2000 vide Notification dated

24.07.2009 and for a further direction to the MCI to consider the appellants

against the enhanced seats for the academic year 2012-13. The appellants

had sought the interim relief of provisional admission in JLNMC. The

learned Single Judge though issued notice of the writ petition, declined

interim relief holding that the same could not be granted without examining

the merits of the claim of the appellants and which claim was opposed by

the counsel for the MCI appearing on advance notice before the learned

Single Judge.

2. We heard the counsel for the appellants at length yesterday when the

appeal first came up before us and on the plea of the counsel for the

appellants, supported by the counsel for JLNMC that MCI was not

processing the case of JLNMC for enhancement of seats, had asked the

counsel for MCI to produce the records before us. The counsel for MCI has

produced the records and which disclose that the case of JLNMC was

considered in the meeting of Board of Governors held on 16.01.2012. It

was noted that the request dated 16.12.2009 of JLNMC for enhancement of

Post Graduate seats in various courses could not be considered in view of

the show cause notice issued to JLNMC for deficiencies prevailing in

teaching faculty, clinical material and infrastructure in the college. It is thus

not as if MCI is sleeping over the matter or has not taken any decision. It is

for JLNMC to pursue the matter with the MCI and if aggrieved from the

decision aforesaid of the Board of Governors, to take appropriate remedies

thereagainst.

3. On the statement of the counsel for the appellants that the writ

petition be also taken up for hearing inasmuch as non denial of interim relief

would make it infructuous, we have also requisitioned the writ petition

bearing No.2779/2012 and take the same on board.

4. The counsel for the appellants/petitioners has argued that the UOI

with an intent to ramp up the country‟s skilled medical manpower vide

Notification dated 24.07.2009 amended the Post Graduate Medical

Education Regulations, 2000 by changing the ratio of recognized post-

graduate teachers to the number of students to be admitted from that earlier

existing; that in pursuance thereto, the MCI also vide its letter dated

26.11.2009 directed JLNMC to send the requisite information about the

faculty; that notwithstanding JLNMC in compliance thereof furnishing the

information, the seats for the post graduate medical courses offered by

JLNMC was not increased; that the appellants/petitioners have qualified the

requisite eligibility examinations and though not entitled to admission on

the basis of their position in the merit list, would be so entitled if the seats

are enhanced. It is urged that the academic year of the appellants /

petitioners should not be allowed to be wasted when the increase in seats is

owing to the shift in the policy decision but which is not being given effect

to.

5. Needless to state that the counsel for the MCI opposes. We have

drawn the attention of the counsel for the appellants / petitioners to THE

ESTABLISHMENT OF NEW MEDICAL COLLEGES, OPENING OF

HIGHER COURSES OF STUDY AND INCREASE OF ADMISSION

CAPACITY IN MEDICAL COLLEGES REGULATIONS, 1993 and

particularly to the Chapter therein "Application for permission of the

Central Government to increase the admission capacity in MBBS / Higher

courses (including Diploma/Degree/Higher Specialities) in the existing

medical colleges / institutions." The same prescribe that the application for

such permission is to be made to the Central Government along with State

Government‟s permission, university‟s affiliation and documentary

evidence to show the additional financial allocation, provision for additional

equipment and other infrastructural facilities and provision for recruitment

of additional staff as per MCI norms. As per the said Regulations,

permission is to be granted only after the respondent No.2 MCI evaluates

the application for increasing the admission strength. It is thus not as if

merely because of Notification dated 24.07.2009 (supra) increasing the

number of students which a teacher in the medical college can teach,

JLNMC becomes entitled to increase in admission strength.

Notwithstanding our inviting attention of the counsel for the appellants /

petitioners to these Regulations, the counsel is unable to satisfy us as to the

fulfillment of the requirements contained therein. On the contrary, reliance

is placed on Deoraj Vs. State of Maharashtra (2004) 4 SCC 697 to contend

that mandamus can be issued at the interim stage also.

6. Without however the appellants / petitioners satisfying us that

JLNMC satisfies all the other requirements, the question of issuing

mandamus increasing the admission strength of JLNMC even at the final

stage, least at the interim stage does not arise. Moreover these proceedings

are at the instance of the students aspiring for admission and not at the

instance of JLNMC.

7. The senior counsel for MCI, per contra has invited our attention to:

(i) Medical Council of India Vs. JSS Medical College AIR 2012

SC 726 where the Supreme Court set aside the interim order of

the Karnataka High Court permitting the medical college in

that case to increase the seats for the MBBS course. It was

held that in normal circumstances, the High Court should not

issue interim order granting permission for increase of seats

inasmuch as granting such permission by an interim order has a

cascading effect. It was yet further held that the Courts by their

fiat cannot increase the seats, that too by an interim order, since

that task had been entrusted to the Board of Governors;

(ii) Priya Gupta Vs. State of Chhatishgarh MANU/SC/0437/2012

where also the Supreme Court has advised all the High Courts

to ensure strict adherence to the rules in the matter of

admission to medical colleges.

8. We are of the view that when the MCI has not even evaluated the

JLNMC from the aspect of increase in admission strength, no interim relief

can be granted to the appellants / petitioners and the learned Single Judge

has correctly declined the same.

9. We are also of the view that the correctness of the stand of the MCI in

refusing to even evaluate JLNMC for increase in strength owing to the show

cause notice having been issued to it, cannot be gone into in a writ petition

filed by the students aspiring for admission. It is for JLNMC to challenge

the said decision of the MCI. No purpose will therefore be served in

keeping the writ petition pending and we accordingly dismiss the writ

petition also.

10. Before parting with the case, we however express our anguish at the