Shri Ram Murti Smarak Trust vs Board Of Governors In ...
2013 Latest Caselaw 3427 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 05.08.2013

+      W.P.(C) 3085/2013

       SHRI RAM MURTI SMARAK TRUST                               ..... Petitioner

                          Through: Counsel for the petitioner.

                          versus

       BOARD OF GOVERNORS IN SUPER-SESSION OF MEDICAL
       COUNCIL OF INDIA & ANR.                 ..... Respondents

                          Through: Mr Ashish Kumar, Adv for R-1/MCI
                          Ms Laxmi Chawla and Mr Sunil Kumar, Advs for R-2
                          (Union of India)
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioner before this Court is running a Medical College and hospital in

Bareilly, Uttar Pradesh and admitting students to the MBBS Course, pursuant to

the permission granted by Medical Council of India and affiliation by MJP

Rohilkhand University. The petitioner was also granted permission to start post-

graduate courses in as many as 17 disciplines. In April, 2012, the petitioner applied

to the respondent-Medical Council of India for increase of PG seats in various

disciplines during the Academic Year 2013-14 and an inspection of the institute of

the petitioner was conducted in December, 2012. Vide communication dated

12.02.2012, Medical Council of India, annexing the Inspection Report required the

petitioner to show cause as to why permission for five post- graduate courses, i.e.,

Orthopaedics, Paediatrics, DVL, Radio-diagnosis and General Medicine be not

denied to it. The petitioner made a representation to the counsel on 14.02.2013 and

was given a personal hearing on 19.02.2013. Vide communication dated

29.03.2013, the permission was refused. Being aggrieved from the aforesaid

refusal, the petitioner is before this Court by way of this writ petition. The writ

petition was filed about 1 ½ month after issue of communication date 29.03.2013.

2. When the writ petition came up for hearing on 13.05.2013, my learned

predecessor issued notice to the respondent, returnable on 05.08.2013.

Accordingly, the respondent-Medical Council of India is represented by a counsel,

who at the very outset, seeks rejection of the writ petition on the ground that in

terms of the schedule fixed under its Regulations, the last date for issue of Letter of

Permission sought by the petitioner having already expired, it is not open to MCI to

grant LoP for the Academic Year 2013-14 at this stage.

3. A perusal of separate show cause notices issued to the petitioner shows that

the following deficiencies were found during the course of inspection:-

MS (Orthopaedics)

 No appreciable increase in blood unit consumption, histopathology workload

& operative workload over past 4 years.

 Deficiencies pointed by assessor--Emergency trauma work was less in

number, Library did not have sufficient international journals, indoor bed

occupancy was less, mainly trauma work was of insufficient quantity. No

paediatric orthopaedic work was seen, Other planned work like arthroplasy

and arthroscopy was also less, Only one operation theatre was seen

functioning.

MD (Paediatrics)

 As per Assessor's report there was poor casualty attendance, clinical

material was very inadequate. Indoor wards filled with patients who were not

admissible cases. Record maintenance poor. Delivery cases were very few.

MD (Radio-diagnosis)

 Assessor pointed out that one Professor, Dr. Rajesh Madhok had been

promoted as Professor recently. The other Professor, Dr. V.R. Bhutalia was

serving in the institute for last 4 months, he had not stayed for more than 1

(one) year in his previous 3 assignments as professor in other institutes.

Professor serving at the starting of PG course was not working presently in

the institute.

MD (General Medicine)

 2 Professor Dr. Pranesh Nigam and Dr. A.C. Nagpal were to attain age of 70

in the month of June, 2013 when the new batch of MD students was

expected to join.

 There was no substantial increase in clinical material and workload since

December, 2011.

 The average daily number of plain X-Rays and USG were inadequate

MD (DVL)

 There was salary discrepancy between the three teachers, professor: 60,000/-

Associate Professor: Rs. 84405/- and Assistant Professor: Rs 61121/-

 Publication and research experience was inadequate

4. The increase sought in MS(Orthopaedics) was declined by MCI in view

deficiencies pointed out by the Assessors and inadequate workload and daily

consumption of the blood units. The explanation offered by the petitioner in this

regard could not satisfy the respondent.

With respect to MD(Paediatrics) course, the permission was declined as the

institute failed to submit a satisfactory explanation in view of the deficiencies

pointed out earlier by the Council and the fact that the Assessor had physically

verified the data and the clinical material could not be ignored by the Council. The

explanation offered by the petitioner in this regard could not satisfy the respondent.

With respect to MD(DVL) course, the explanation regarding the discrepancy

in the salary was not acceptable as the salary structure was not as per the UGC or

state norms. The explanation offered by the petitioner in this regard could not

satisfy the respondent.

With respect to MD(Radio-diagnosis) course as the institute had failed to

offer a satisfactory compliance in regard to deficiencies pointed out by the Council,

the permission was declined. The explanation offered by the petitioner in this

regard could not satisfy the respondent.

With respect to MD(General Medicine) course in view of the unsatisfactory

compliance submitted by petitioner at the time of personal hearing and also

unexplained gaps in the service of certain teachers, namely, Dr.A.B.Mowar

Dr.S.K.Saxena, Prof. P.Nigam and Prof. A.C.Nagpal, the permission was declined.

5. The following is the Schedule prescribed by Medical Council of India for

opening or to increase the admission capacity in respect of Post-Graduate Medical

Courses and its processing by the Central Govt. and Medical Council of India:-

Sl. No. Stage of processing Time Schedule

1. Receipt of applications by the Central 1st May to 30th June Government.

2 Forwarding of applications by Central Up to 31st July Government to Medical Council of India for technical scrutiny.

3. Forwarding of recommendations of MCI Up to 15th September which are for grant of only Letter of Intent.

4. Issue of Letter of Intent by Central Up to 15th October

Government.

5. Applicant institution to send its reply to Up to 15th November Central Government requesting for Letter of Permission.

6. Receipt of Letter from Central Up to 30th November Government by the Medical Council of India for consideration for issue of Letter of Permission.

7. Recommendation of Medical Council of 1st January to 28/29th India to Central Government for issue of February Letter of Permission.

8. Issue of Letter of Permission by Central Up to 31st March Government.

The dead line for issue of Letter of Permission stands extended to 15 th July,

2013, for the Academic Year 2013-14. The studies in the Post-Graduate Courses

are stated to have commenced on 1st August, 2013.

6. In Priya Gupta vs. State of Chhattisgarh and Others (2012) 7 Supreme

Court Cases 433, the Apex Court after taking note of its several decisions in the

matter, inter alia, observed and held as under:-

"31. Further, this Court in Mridul Dhar case even took pains to declare the need for adherence to the schedule for receipt of applications for establishment of new medical colleges or seats and the process of the review and recommendation by the Central Government and the Medical Council of India. ......

33. Lastly, in the case of Priyadarshini Dental College and Hospital v. Union of India this Court cautioned all concerned that the schedule specified in Mridul Dhar (supra) should be maintained and Regulations should be strictly followed. The Court suggested that the process of inspection of colleges, grant of permission or renewal of permission should also be done

well in advance to allow time for setting right the deficiencies pointed out.

.......

40. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the Regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations.

41. Inter alia, the disadvantages are:

(1) Delay and unauthorized extension of schedules defeat the principle of admission on merit, especially in relation to preferential choice of colleges and courses. Magnanimity in this respect, by condoning delayed admission, need not be shown by the Courts as it would clearly be at the cost of more meritorious students. The principle of merit cannot be so blatantly compromised. This was also affirmed by this Court in the case of Muskan Dogra and Ors. v. State of Punjab and Ors. (2005) 9 SCC 186.

(2) Mid-stream admissions are being permitted under the garb of extended counseling or by extension of periods for admission which, again, is impermissible.

(3) The delay in adherence to the schedule, delay in the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by

shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions. (4) Inequities are created which are prejudicial to the interests of the students and the colleges and more importantly, affect the maintenance of prescribed standard of education. These inequities arise because the candidates secure admission, with or without active connivance, by the manipulation and arbitrary handling of the prescribed schedules, at the cost of more meritorious candidates. When admissions are challenged, these students would run the risk of losing their seats though they may have completed their course while litigation was pending in the court of competent jurisdiction.

(5) The highly competitive standards for admission to such colleges stand frustrated because of non-adherence to the prescribed time schedules. The admissions are stretched to the last date and then admissions are arbitrarily given by adopting impermissible practices.

......

45. The maxim Boni judicis est causas litium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory Regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above-stated principles. .....

46.1 The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be

approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.

......

47. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions: 47.1 Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc. 47.2 The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant. .....

78.4 With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit. We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to convenience of the Court. We may refer the dictum of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences (2004) 6 SCC 76, para 14) in this regard.

7. The learned counsel for the MCI also submits that vide order dated

22.7.2013 passed in WP(C) No.534 of 2013, Rama Medical College H. & Res.

Cen. Ghaz. Versus Union of India & Another, the Hon'ble Supreme Court

declined to interfere with the order passed by the Government on similar ground

but made it clear that the said dismissal will not affect the claim of the petitioner

it satisfies all the requirements as prescribed by MCI in the subsequent year. The

learned counsel for the petitioner, however, relies upon the order dated 30 th July,

2013 passed by the Apex Court in WP(C) No.244/2013 Sinhgad Technical

Education Society & Anr. vs. Union of India & Ors.. A perusal of the aforesaid

order would show that two writ petitions WP(C) No.256/2013 and 244/2013 filed

by the same petitioner were disposed of by a common order. In WP(C)

No.256/2013, the Apex Court declined to interfere with the impugned orders

passed by the Board of Governors of the Medical Council of India so far as they

related to Academic Session 2013-14 and dismissed the writ petition. It was,

however, directed that since the petitioner had applied for Academic

Session2014-15 for the very same seats, MCI will consider the same in

accordance with its norms and take an early decision not later than 31 st January,

2014. However in WP(C) No.244/2013, the Hon'ble Supreme Court directed

issue of Letter of Permission for 3 seats in MD(Radio-diagnosis), 3 seats in

M.D.(Paediatrics) and 3 seats in MS(OBG).

8. In my view, in the facts and circumstances of this case, considering the

Schedule notified by MCI, which this Court is expected to strictly adhere to in

terms of the decision of the Apex Court in Priya Gupta(Supra), it will not be

appropriate for this Court to direct the respondents to consider issue of Letter of

Permission for the Academic Year 2013-14 at this stage. This is the prerogative

only of the Apex Court, to relax or extend the Time Schedule approved by it. This

is more so when a number of deficiencies were found during the course of

inspection carried out in December, 2012 and after considering the representation

made by the petitioner in respect of the aforesaid deficiencies, the respondent

MCI was of the view that the compliance submitted by the petitioner institute at

the time of personal hearing was not satisfactory and it decided to disapprove the

increase sought by the petitioner.

For the reasons stated hereinabove, the writ petition is hereby dismissed.

It is, however, made clear that the dismissal of this writ petition will not affect the

application of the petitioner, if made by it, for grant of permission for the

aforesaid course for the academic year 2014-2015 provided that such an

application can otherwise be made as per Regulations and it meets all the

requirements as prescribed by MCI for the academic year 2014-2015 whether by

way of Regulations or otherwise.

V.K. JAIN, J

AUGUST 05, 2013 bg/ks