Surendra Hemant Education & ... vs Union Of India & Anr.
2012 Latest Caselaw 5241 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 3rd September, 2012
+                            LPA No.605/2012

%        SURENDRA HEMANT EDUCATION & SOCIAL
         WELFARE SOCIETY, PATNA              ..... Appellant
                     Through: Mr. Pawan Upadhyay with Ms.
                              Anisha Upadhyay & Mr. Ankit
                              Sibbal, Advs.

                                   Versus

    UNION OF INDIA & ANR.                   ..... Respondents
                 Through: Mr. B.V. Niren, Adv. for R-1.
                           Mr. Ashish Kumar, Adv. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the order dated 16.05.2012 of the

learned Single Judge dismissing W.P.(C) No.4005/2010 preferred by the

appellant. The said writ petition was preferred seeking mandamus to grant

recognition to the Surendra Medical College and Hospital set up by the

appellant at Shiwala Mor, Khagaul, Patna.

2. It was the case of the appellant in the writ petition that it had first

approached the respondent Medical Council of India (MCI) for permission

to establish a Medical College vide Communication dated 10.08.2005, but

was inter alia asked to obtain affiliation with a University and to remove

certain other deficiencies, as well as to obtain Essentiality Certificate from

the State Government; that an Essentiality Certificate dated 03.10.2006

was issued in its favour by the State Government and it also obtained

consent of affiliation from a University; that since it was already running a

hospital, Essentiality Certificate was a mere formality; that however it was

still not granted the permission, compelling it to prefer a writ petition

under Article 32 of the Constitution of India to the Supreme Court; that the

said writ petition was however disposed of on 11.02.2010 with leave to the

petitioner to approach the High Court; that it is thereafter that the writ

petition from which this appeal arises was filed in this Court.

3. Learned Single Judge disposed of the writ petition without

adjudicating on the correctness of the refusal of the respondent MCI to

grant permission to the appellant for setting up a Medical College

observing that the appellant having admittedly not applied to the

respondent MCI for permission after the year 2007-08 and having also not

obtained Essentiality Certificate and affiliation, no relief in the writ

petition could be granted. Liberty has however been given to the appellant

to submit a fresh application to the respondent MCI for permission in

accordance with prevalent norms.

4. Finding that a period of nearly six years has elapsed since the

appellant claims to have applied for permission to establish a Medical

College and being further of the opinion that after such a long lapse of

time, no purpose would be served in judging the justifiability of the

reasons which prevailed with the respondent MCI nearly six years ago to

refuse such permission inasmuch as it will have to be seen as to whether

the appellant today fulfills all the requisites for a Medical College, we at

the outset enquired from the counsel for the appellant as to why the

appellant should not make a fresh application for permission.

5. The counsel for the appellant replies that the permission for that year

is relevant for the sake of the students admitted by the appellant in the year

2007-08. However when we enquired from the counsel for the appellant as

to how the appellant, which has not been granted any permission till now

to establish a Medical College, could have admitted students, the counsel

had no answer.

6. We are of the opinion that the possibility of the ground realities

having changed in the last six years cannot be ruled out and the

infrastructure earlier available cannot be presumed to be there today also.

We are therefore in agreement with the learned Single Judge that the

petition has become infructuous and the remedy of the appellant is to apply

afresh.

7. Faced therewith the counsel for the appellant has contended that the

respondent MCI is compelling the appellant to even obtain the Essentiality

Certificate afresh from the State Government, when the same is not

required to be obtained afresh each year while making application for

permission for successive years.

8. We however find the learned Single Judge to have, in the impugned

order, recorded the contention of the respondent MCI to the effect that

while prior to the year 2002, Essentiality Certificate was required to be

obtained by the applicant from the State Government and to be submitted

by the applicant to the MCI but after the year 2010, the State Government

is required to submit the Essentiality Certificate directly to the MCI; that

the application for permission of the appellant herein was not accompanied

with any such Essentiality Certificate. The impugned judgment further

records the contention of the counsel for the appellant that though it had

approached the State of Bihar for issuance of Essentiality Certificate but

the same was not issued.

9. Today however, the counsel for the appellant has drawn our

attention to the letter dated 18.11.2003 of the respondent MCI to the SRI

University with which the appellant was then intending affiliation. The

said letter records that the Chief Secretary, Government of Bihar had vide

letter No.108/MCI.(Conf)/2003.Med dated November 12, 2003 given

consent for the issuance of NOC. The counsel for the appellant states that

the same is an admission by the respondent MCI of the State Government

having issued the Essentiality Certificate.

10. We, however, do not have before us the said letter dated 12.11.2003

of the State Government. In the absence thereof, all that can be observed

while dismissing this appeal is that in case the appellant had earlier been

issued Essentiality Certificate, the appellant, while making an application

now to the MCI shall not be required to obtain the Essentiality Certificate

again.

No costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE SEPTEMBER 03, 2012 'gsr'