Medical Council Of India vs Muzaffarnagar Medical College & ...
2014 Latest Caselaw 7088 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 23rd December, 2014

+                               LPA No.788/2014

       MEDICAL COUNCIL OF INDIA                ..... Appellant
                   Through: Mr. Vikas Singh, Sr. Adv. with Mr. T.
                            Singhdev, Mr. Manan Khera & Mr.
                            Vishu Agrawal, Advs.

                                   Versus

    MUZAFFARNAGAR MEDICAL COLLEGE & ORS... Respondents

Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Aseem Mehrotra, Adv. for R-1&2.

Ms. Monika Arora, CGSC with Ms. Saroj Bidawat, Mr. Abhishek Kumar Chaudhary & Ms. Medha Arya, Advs.

for R-3 / UOI.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 29th October, 2014 of

the learned Single Judge of this Court allowing W.P.(C) No.7339/2014 filed

by the respondents No.1 and 2 i.e. Muzaffarnagar Medical College (MMC)

and its Chairman Sh. Satish C. Goel and impleading the respondent No.3

Union of India (UOI) only as the respondent thereto and by setting aside the

letter dated 22nd July, 2014 of the respondent No.3 UOI, returning / rejecting

the Scheme (for starting various postgraduate courses and for increase in

seats for other postgraduate courses) for the academic session 2015-16

submitted by the respondent No.1 MMC on 27th May, 2014 on the ground of

same having been submitted after the cut-off date of 30th April, 2014 and

permitting the respondent No.1 MMC to re-file its Scheme for the academic

session 2015-16 within a period of two weeks therefrom and by directing the

respondent No.3 UOI to consider the said Scheme on merits.

2. The appeal came up before us first on 12 th December, 2014 when the

counsel for respondent No.1 MMC as well as the counsel for respondent

No.3 UOI appeared on advance notice. It was the contention of the senior

counsel for the appellant Medical Council of India (MCI) that the appellant

was a necessary party to the writ petition and was adversely affected by the

order of the learned Single Judge. Reliance in this regard was placed on

Medical Council of India Vs. Swati Sethi (2004) 5 SCC 798 and Dental

Council of India Vs. S.R.M. Institute of Science & Technology (2004) 9

SCC 676. The counsel for the respondent No.1 MMC on that date did not

contend that the appellant, being not a party to the writ petition, was not

entitled to prefer the appeal. We thus stayed all further proceedings pursuant

to the order of the learned Single Judge and posted the matter for hearing.

We have heard the senior counsel for the appellant as well as the senior

counsel for the respondent No.1 MMC.

3. The respondent No.1 MMC and its Chairman filed the writ petition

from which this appeal arises inter alia pleading that:

(i) The respondent No.1 MMC for the last more than seven years

had been regularly accorded permission to conduct MBBS

courses, initially for 100 seats and subsequently increased to

150 seats.

(ii) The respondent No.1 MMC in or about the year 2010 was also

granted permission to start postgraduate courses in Anatomy (2

seats) and in Physiology (1 seat).

(iii) Vide Notification dated 24th May, 2011, the respondent No.1

MMC was included in the First Schedule to the Indian Medical

Council Act, 1956 for awarding MBBS Degree from

Chaudhary Charan Singh University, Meerut, U.P.

(iv) The respondent No.1 MMC was also accorded permission for

the academic session 2012-13 for starting postgraduate course

MD (Pathology) with annual intake of four students;

subsequently, the respondent No.1 MMC was granted

permission for starting certain other postgraduate courses in

Medicine.

(v) The respondent No.1 MMC on 31st May, 2012 applied for

starting postgraduate courses in certain other streams for the

academic session 2013-14.

(vi) For the academic session 2014-15, the respondent No.1 MMC

applied for starting more postgraduate courses and for increase

of seats in certain postgraduate courses for which permission

had been accorded in the earlier years.

(vii) Though the appellant MCI on 11th April, 2014 had made a

recommendation for rejecting the application / Scheme

submitted by the respondent no.1 MMC for the academic

session 2014-15 but as the respondent No.3 UOI / Central

Government had not issued the letter, either approving or

disapproving the Scheme for the academic session 2014-15 and

as the classes were to commence in May, 2014, the respondent

No.1 MMC in or about April, 2014 filed five different petitions

in the Supreme Court seeking a writ of mandamus for starting

the courses for which the Scheme had been submitted.

(viii) The aforesaid writ petitions were however dismissed on 2nd

May, 2014.

(ix) The respondent No.3 UOI / Central Government however vide

letter dated 15th May, 2014, received by the respondent No.1

MMC on 27th May, 2014 rejected the Scheme submitted by the

respondent No.1 MMC for the academic session 2014-15 but

clarifying that the same did not debar the respondent No.1

MMC for applying for the academic session 2015-16.

(x) The respondent No.1 MMC thereafter on 27th May, 2014 itself

submitted its Scheme (for starting certain new postgraduate

courses and for increasing the seats in certain other

postgraduate courses for which permission had been granted in

the earlier academic sessions) for the academic session 2015-16

to the Central Government.

(xi) The respondent No.1 MMC was orally told that the said

Scheme for the academic session 2015-16 submitted on 27th

May, 2014 could not be considered having been submitted after

the cut-off date of 30th April, 2014.

(xii) The respondent No.1 MMC filed a writ petition in the Supreme

Court seeking mandamus against the respondent No.3 UOI /

Central Government for considering the application / Scheme

of the respondent No.1 MMC for the academic session 2015-

16.

(xiii) The respondent No.3 UOI / Central Government vide letter

dated 22nd July, 2014 returned the application / Scheme

aforesaid of the respondent No.1 MMC for the academic

session 2015-16.

(xiv) The writ petition aforesaid filed by the respondent No.1 MMC

in the Supreme Court with respect to the academic session

2015-16 was withdrawn from the Supreme Court on 12 th

September, 2014 with liberty to file a fresh petition before the

appropriate forum in accordance with law.

(xv) The respondent no.1 MMC filed another writ petition in the

Supreme Court, again claiming a mandamus to the respondent

no.3 UOI / Central Government to consider its application /

Scheme for the academic session 2015-16.

(xvi) The said writ petition also was dismissed as withdrawn on 17 th

October, 2014 with liberty to file appropriate petition before the

High Court.

Thereafter, the writ petition from which this appeal arises was filed

for the relief of quashing of the letter dated 22nd July, 2014 (supra) of the

respondent No.3 UOI / Central Government rejecting the Scheme submitted

by the respondent No.1 MMC for the year 2015-16 and of mandamus

commanding the respondent No.3 UOI / Central Government to consider the

Scheme submitted on 27th May, 2014 for the academic session 2015-16 on

merits was sought.

4. The writ petition came up before the learned Single Judge of this

Court first on 29th October, 2014 when the counsel for the sole respondent

UOI / Central Government appeared on advance notice. The learned Single

Judge accepted the contention of the counsel for the respondent No.1 MMC

that the respondent No.1 MMC could not have filed the Scheme for the

academic session 2015-16 till it was informed of the fate of the Scheme

submitted for the previous academic session 2014-15 and rejection whereof

was learnt by the respondent No.1 MMC on 27th May, 2014 only; it was thus

held that the respondent No.1 MMC could not have prior to the cut off date

of 30th April, 2014 filed the Scheme for the academic session 2015-16.

Accordingly, the writ petition was allowed, permitting the respondent No.1

MMC to re-file its Scheme for the academic session 2015-16 within a period

of two weeks therefrom and with a direction to the respondent No.3 UOI /

Central Government to consider the said Scheme on merits.

5. According to the appellant MCI, since it was not made a party to the

writ petition, it did not know of the order aforesaid of the learned Single

Judge till 25th November, 2014 when it learnt of the same from another writ

petition of which copy was served on it. In any case, the respondent No.3

UOI / Central Government in compliance of the order of the learned Single

Judge, vide its letter dated 25th November, 2014 received by the appellant on

26th November, 2014, forwarded to the appellant the Scheme submitted by

the respondent No.1 MMC for the academic session 2015-16 along with the

order of the learned Single Judge, to take appropriate action thereon.

Immediately thereafter this appeal was filed.

6. The senior counsel for the appellant has argued that:

(a) As per the time schedule provided in The Opening of a New or

Higher Course of Study or Training (including Postgraduate

Course of Study or Training) and Increase of Admission

Capacity in any Course of Study or Training (including a

Postgraduate Course of Study or Training) Regulations, 2000

framed by the appellant MCI, the date for receipt of application

/ Scheme from the Medical College / proposed Medical

Colleges by the Central Government is between 1st April to 30th

April and the appellant is to make recommendations to the

Central Government by 31st January of next year and the Letter

of Permission for starting a course in Medicine / College is to

be issued by the Central Government by 28th February of the

next year.

(b) However owing to the appellant MCI having been superseded

and functioning through the Board of Governors and a new

MCI having been constituted, the Supreme Court extended the

period for the appellant MCI to make its recommendations to

the Central Government for the academic session 2014-15 from

31st January of that year to 15th April, 2014 and for the Central

Government to issue Letter of Permission to 15th May, 2014.

(c) That the respondent No.1 MMC on 11th April, 2014 was aware

that the appellant MCI had made a recommendation to the

Central Government to reject the application / Scheme of the

respondent No.1 MMC for starting new postgraduate courses

and for increasing the seats in certain other postgraduate

courses for the academic session 2014-15.

(d) This is apparent from the respondent No.1 MMC, in April,

2014 itself filing the five writ petitions (supra) in the Supreme

Court challenging the recommendation of the appellant MCI,

even prior to the same having been considered by the Central

Government.

(e) The Supreme Court on 2nd May, 2014 dismissed the said writ

petitions.

(f) The Central Government by its letter dated 15th May, 2014

accepted the recommendation aforesaid of the appellant MCI

and rejected the Scheme Submitted by the respondent No.1

MMC for the academic session 2014-15.

(g) The respondent No.1 MMC being so aware on 11th April, 2014

of the recommendation of the appellant MCI, could have well

before the cut-off date of 30th April, 2014 submitted the Scheme

for the academic session 2015-16; the respondent No.1 MMC

could have done so even without prejudice to its right to

challenge the said recommendation of the appellant MCI as had

been done by filing the writ petitions in the Supreme Court and

could have also done the same without prejudice to the decision

of the Central Government on the said recommendation.

(h) Even if the respondent No.1 MMC had to incur some fee for so

submitting the said application / Scheme for the academic

session 2015-16 and which would have been wasted in the

event of the writ petitions filed before the Supreme Court

succeeding or the Central Government not accepting the

recommendation of the appellant MCI (and in which case the

respondent No.1 MMC would not have been required to seek

the same approval for the academic session 2015-16), the

respondent No.1 MMC could have always claimed the refund

of the said fee.

(i) The application / Scheme for the academic session 2015-16

submitted on 27th May, 2014 was clearly after the cut-off date

prescribed in the Regulations and by the Supreme Court and the

said application / Scheme cannot be considered.

(j) Attention is drawn to Priya Gupta Vs. State of Chhattisgarh

(2012) 7 SCC 433 and it is contended that the said judgment

bars the appellant MCI as well as this Court from entertaining /

directing consideration of an application / Scheme filed after

the cut-off date; that though prior to the said judgment, High

Courts were issuing directions for entertaining applications /

Schemes submitted beyond the cut-off dates but after the said

judgment, the jurisdiction of the High Courts is limited only to

entertaining contempt proceeding for violation of the cut-off

date.

(k) though the respondent No.1 MMC in July, 2014 filed a writ

petition in the Supreme Court seeking a direction to the Central

Government to consider its application / Scheme for the

academic session 2015-16 but without impleading the appellant

MCI as a party thereto and even though the respondent No.1

MMC, on 12th September, 2014 was aware of the letter dated

22nd July, 2014 of the Central Government of return of

application / Scheme for the academic session 2015-16 for the

reason of having been filed after the cut-off date, but still

withdrew the said writ petition.

(l) Though the respondent No.1 MMC had so withdrawn the writ

petition qua the academic session 2015-16 but immediately

thereafter in September / October, 2014 itself filed yet another

petition in the Supreme Court claiming the same relief as in the

earlier writ petition and again without impleading the appellant

MCI as a party thereto - the said writ petition was again

dismissed as withdrawn on 17th October, 2014 with liberty to

file appropriate petition before the High Court - had the MCI

been a party to the said writ petition, it would have informed

the Supreme Court of the earlier writ petition for the same relief

filed by the respondent No.1 MMC and withdrawn with the

same liberty.

(m) It is only thereafter that the writ petition from which this appeal

arises was filed on or about 27th October, 2014.

7. The senior counsel for the respondent No.1 MMC has contended that:

(I) The judgment (supra) of the Supreme Court in Priya Gupta is

in relation to the MBBS course and not in relation to the

postgraduate courses and thus it cannot be urged that owing

thereto this Court is not entitled to direct consideration of an

application / Scheme submitted beyond time.

(II) The respondent No.1 MMC was prevented from applying /

submitting the application / Scheme for the academic session

2015-16 by the appellant MCI and the respondent No.3 UOI /

Central Government ; though they were as per the Regulations

required to approve / reject the application / Scheme submitted

for the academic session 2014-15 by 28th February, 2014 but

did not; had the application / Scheme submitted for the

academic session 2014-15 been approved, there would have

been no need for the respondent No.1 MMC to submit a

Scheme for the same courses / additional seats for the academic

session 2015-16 inasmuch as the benefit of the approval for the

academic session 2014-15 would have enured for the following

years also; on the contrary, had the appellant MCI and the

respondent No.3 UOI / Central Government rejected the

application / Scheme for the academic session 2014-15 by the

stipulated date of 28th February 2014, the respondent No.1

MMC would have applied afresh for 2015-16 by 30th April,

2014.

(III) Attention is invited to the order dated 10th September, 2013 of

the Supreme Court in Civil Appeal No.8054/2013 titled Royal

Medical Trust (Regd.) Vs. Union of India and to order dated

18th September, 2014 in W.P.(C) No.469/2014 titled Hind

Charitable Trust Shekhar Hospital Pvt. Ltd. Vs. Union of

India to contend that the Supreme Court also has extended the

time schedule.

8. We have considered.

9. The Supreme Court, in Swati Sethi (supra) was dealing with the

judgment of the High Court directing admission of certain students who

claimed to have been wrongfully deprived of their right to admission to the

medical courses. MCI which was not made a party to the writ petitions,

preferred a Special Leave Petition to the Supreme Court. It was the

contention of the respondents / writ petitioners before the Supreme Court

that their grievance was against the medical colleges only and not against the

MCI. The Supreme Court however held that it is the MCI which lays down

the time schedule and is responsible for maintaining such time schedule as

well as the quality and discipline in the medical courses and what was being

asked by the respondents / writ petitioners was a change in the time schedule

fixed by the MCI; such a plea could not have been entertained in the absence

of the MCI. Similarly in S.R.M. Institute of Science & Technology (supra),

it was held that since the Dental Council of India is a statutory body having

statutory duties, it ought to have been impleaded in a writ petition seeking

direction to the Central Government to process the proposal to start Master

of Dental Surgery (MDS) courses.

10. We thus, at the outset enquired from the senior counsel for the

respondent No.1 MMC as to why in the face of such a settled position of

law, from the very factum of the respondent No.1 MMC, in the writ petition

from which this appeal arises, not impleading the appellant MCI as a party,

inference should not be drawn that the appellant MCI was intentionally not

made a party, to manipulate a walkover and the respondent no.1 MMC be

held not entitled to the discretionary relief under Article 226 on this ground

only. We also drew the attention of the senior counsel for the respondent

No.1 MMC to the fact that it is not as if the writ petition was filed by a

novice; the writ petition was filed under legal assistance of a counsel who, if

we may say so, specializes if not enjoys exclusivity in the said field; he

cannot be presumed to be not knowing the law. We yet further pointed out

to the senior counsel for the respondent No.1 MMC that in such matters

though Central Government is also a party but the contesting respondent is

always the MCI and owing whereto the panel advocates of the Central

Governments are not even called upon to file counter affidavits or address

and are generally not even aware of the Regulations and the Schedules laid

down by the MCI.

11. The senior counsel for the respondent No.1 MMC could only respond

that the respondent No.1 was aggrieved only from the rejection / return by

the Central Government of the application / Scheme for the academic

session 2015-16 solely on the ground of having been submitted beyond the

cut-off date and there was thus no need to implead the appellant MCI.

12. We however enquired whether not the time schedule which was

sought to be overcome, was prescribed by the appellant MCI and if so how

could it be said that the appellant MCI was not a necessary party.

13. No appropriate answer has been forthcoming.

14. We yet further asked whether any other writ petitions of a similar

nature have been filed in the past without impleading the MCI and merely

against the Central Government.

15. Again no answer was forthcoming. It was however urged that the

order under appeal is only an interim one. Upon it being pointed out that it

is a final order allowing writ petition, it was stated that the order only directs

consideration of the application / Scheme and it is always open to the

Central Government / MCI to say, that the same being beyond time, cannot

be considered.

16. We asked that if that be so, is the very filing of this appeal by the

appellant MCI not such a reply of the appellant MCI. We have also drawn

the attention to the impugned order which directs consideration of the

application / Scheme "on merits".

17. We also enquired from the senior counsel for the respondent No.1

MMC that if the cut-off dates prescribed by the Supreme Court are with

respect to the MBBS and BDS courses only and not with respect to the

postgraduate courses, where was the need for the Supreme Court to extend

the date for the academic session 2014-15 from the prescribed date of 28th

February, 2014 to 15th May, 2014.

18. The senior counsel for the respondent No.1 MMC stated that it is for

the appellant MCI to answer, as the respondent No.1 MMC was not a party

to the said proceedings before the Supreme Court.

19. We also enquired whether there are any precedents of the High

Courts, after the judgment in Priya Gupta (supra) having so extended the

dates in relation to postgraduate courses.

20. No answer has been forthcoming.

21. The senior counsel for the respondent No.1 MMC then contended that

even if we are of the view that the appellant MCI is a necessary party, it can

be ordered to be impleaded and the matter remanded to the Single Judge for

decision afresh.

22. We may in this regard point out that this option was considered by us

on 12th December, 2014 when the appeal had first come up before us.

However it was the contention of the senior counsel for the appellant MCI

and of the counsel for the respondent No.1 MMC on that date that since the

MCI is to make recommendations on the Schemes for the academic session

2015-16 latest by 31st January, 2015, the matter be considered by us only.

The respondent No.1 MMC cannot now be permitted to turn turtle.

23. However being still of the view that the time for taking decision on

the applications / Schemes for the academic session 2014-15 having been

extended from 28th February, 2014 to 15th May, 2014, in all fairness, the

time for submitting applications / Schemes for the academic session 2015-16

should also have been proportionately extended, we enquired from the senior

counsel for the appellant MCI as to what prejudice the appellant MCI will

suffer if directed to so consider the application / Scheme submitted by the

respondent No.1 MMC for the academic session 2015-16, as done in the

impugned judgment / order.

24. The senior counsel for the appellant MCI explained that the appellant

MCI had, by the time of coming to know of the order of the learned Single

Judge, already completed one round of inspection of all medical colleges

and is now in the process of issuing deficiency notices and hearing on the

same and conducting second inspections, if need be. It was further told that

long time is taken in collating inspection teams and such inspections cannot

be organized at short notice. It is stated that if at this time the process of

considering the application / Scheme of the respondent No.1 MMC was to

be commenced, it would derail the schedule for the academic session 2015-

16 as well.

25. We tend to agree with the appellant MCI, particularly in view of the

fact that the respondent No.1 MMC is found to have not acted with

promptitude. The respondent No.1 MMC on 11th April, 2014 itself knew of

the appellant MCI having recommended rejection of its application / Scheme

for the academic session 2014-15. The respondent No.1 MMC therefrom

could have reasonably been sure that the Central Government will also

accept the said recommendation. The respondent No.1 MMC however

though filed writ petitions in the Supreme Court challenging the said

recommendation of the appellant MCI but did not by way of abundant

caution apply within the prescribed time of 30th April, 2014 for the academic

sessions 2015-16. Not only so, when the said writ petitions were dismissed

on 2nd May, 2014, then also no permission was taken from the Supreme

Court for filing the application / Scheme for the year 2015-16 which till then

was delayed by a few days only. Not only so, even after the Central

Government on 15th May, 2014 accepted the recommendation of the

appellant MCI qua the respondent No.1 MMC, the respondent No.1 MMC

accepted the same and did not challenge the same. It thereafter filed

successive writ petitions in the Supreme Court for acceptance of its

application / Scheme for the academic session 2015-16. The respondent

No.1 MMC thereby dragged the matter for a further six months before

approaching this Court. The said delay on the part of the respondent No.1

MMC is not explained at all. The respondent No.1 MMC being at fault, we

see no reason to put the appellant MCI at inconvenience for the defaults of

the respondent No.1 MMC.

26. There is another aspect, which in fact arose from the arguments of the

respondent No.1 MMC. It was the contention of the respondent no.1 MMC

that the Central Government was bound to decide qua academic session

2014-15 by 28th February, 2014 but did not. Though of course the said date

was extended but if the respondent No.1 MMC wants to take advantage

thereof, the question also arises as to why the respondent No.1 MMC did not

presume its application for the academic session 2014-15 to have been

rejected owing to approval having not been accorded by 28 th February, 2014

and re-apply for the academic session 2015-16 by the cut off date of 30th

April, 2014.

27. The time schedule having been fixed by Regulations, has sanctity and

cannot be disturbed at the mere asking of the respondent no.1 MMC

particularly when the respondent no.1 MMC is itself to blame for missing

the cut off date and is found to have attempted to obtain an order, extending

the date, from this Court, behind the back of the appellant MCI.

28. The senior counsel for the respondent No.1 MMC had also argued that

the appellant MCI itself, while rejecting its application / Scheme for the

academic session 2014-15 vide letter dated 15th May, 2014, stated that the

same will not prevent the respondent No.1 MMC from submitting a fresh

application / Scheme for the subsequent academic year. It was contended

that the same amounts to permitting the respondent No.1 MMC to submit

the application / Scheme for academic session 2015-16 by a subsequent date.

29. We are unable to agree. The time schedule having been laid by the

Regulations, could not have been changed by the letter aforesaid.

30. The appeal accordingly succeeds. The order dated 29 th October, 2014

of the learned Single Judge is set aside and the writ petition filed by the

respondent No.1 MMC and its Chairman, respondent No.2 is dismissed with

costs assessed at Rs.30,000/- payable to the appellant MCI within four

weeks of today.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE DECEMBER 23, 2014 „gsr‟..