Mulani Akash Jaysukhbhai and Others Vs Union of India and Others

J.B. Pardiwala, J.@mdashAs common questions of facts and law are involved in the above captioned three writ petitions, the same were take-up for hearing together and are being disposed of by this common judgment and order.

2. In all three writ petitions, the Petitioners are students pursuing their 2nd Year M.B.B.S. Degree course at Respondent Nos. 8 - College viz. K.J. Mehta General Hospital and Collegeof Medical Sciences, Bhavnagar (hereinafter referred to as,''the College'').

3. These petitions depict a very sorry state of affairs at the end of Respondent No. 8 - College. There cannot be a better example than the present petition to demonstrate greed of a private organization, a medical college to amass wealth by commercializing medical education. In spite of the fact that the Medical Council of India decided not to continue the college (Respondent No. 8) as medical college and thereby refused permission for admission from 2010-2011onwards and Respondent No. 8 -College thereby cannot admit any student for the academic session 2010-2011 onwards, Respondent No. 8 is still insisting that the students who were earlier admitted should not be transferred to any other recognized medical college and Respondent No. 8 -College may be allowed to impart teaching.

4. We have noticed that the Medical Council of India has not renewed permission to run medical college as Respondent Nos. 8 -College miserably failed to impart education due tolack of teaching and non-teaching staff, infrastructure,other facilities, etc. We have also noticed that the Delhi High Court, while deciding Letters Patent Appeal No. 661/2010 and CM No. 16498/2010, vide judgment and order dated 25th October 2010, gave an opportunity to Respondent Nos. 8 - College to take rectification measures and make good all the deficiencies noticed by the Medical Council of India but, in spite of this opportunity, Respondent No. 8 -College has failed to raise the education standards, failed to appoint teaching and non-teaching staff, infrastructure and other facilities. The Medical Council of India again refused to grant permission to start medical course for the academic session 2011-2012.

5. We are reminded of a very important observation of the Supreme Court which can be quoted very aptly in the present case. We are referring to a decision of the Supreme Courtin the case of Medical Council of India Vs. State of Karnataka and Others, wherein the Supreme Court in paragraph 30 observed as under:�

30. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study.

By way of these petitions, the Petitioners are seeking a writ of mandamus or any other appropriate writ or direction for transfer of their admission to any other recognized medical college and further treat the Petitioners as the students of transferee college, which is either affiliated to Respondent No. 7 University or any other university situated in the State of Gujarat, as Respondent No. 8 has miserably failed to impart education due to lack of proper infrastructure like extremely poor presence of the faculty and many of the departments like Pathology, Medicines, Forensic Medicine, T.B. and Chest, Psychiatry, Skin and VD,Gynecology, etc. has almost No. teaching staff and most importantly the Medical Council of India - Respondent No. 5has refused to renew the approval of the College for the academic year 2010-2011.

6. Facts relevant for the purpose of deciding the petitions can be summarised as under:

(a) Students passed 12th Standard Science Examination securing more than 80% marks in the year 2009. On 23rd September 2008 Shri K.J. Mehta T.B. Hospital Trust, which is running the medical college in the name and style of K.J. Mehta General Hospital and College of Medical Sciences, Bhavnagar was granted Essentiality Certificate by Government of Gujarat in statutory FormNos. 2 as required under Sub-clause (3) of Clause (2) of the Establishment of Medical College Regulations, 1999 framed u/s 33 of the Indian Medical Council Act, 1956 (hereinafter referred to as, ''the Act'' and ''the Regulations of 1999'').

(b) The said certificate provides that, ''in case applicant fails to create infrastructure for the medical college as per M.C.I. norms and fresh admissions are stopped by the Central Government, the State Government shall takeover the responsibility of the students already admitted in the college with the permission of the Central Government. Clause (10) of the said certificate also provides that Respondent No. 8 - College shall furnish bank guarantee worth Rs. 2 crores in favour of Government of Gujarat.

(c) On 10th July 2009 u/s 10(A) of the Act,letter of permission to establish a new medical college was granted in favour of Respondent No. 8 - College by the Government of India from the academic year 2009�2010. Clause (2) of the said permission provides that college shall apply to Medical Council of India for renewal of permission well before the commencement of the next academic session and the college shall not admit more than one batch of students against this letter of permission. Clause (3) of the said permission provides that permission is subject to bank guarantee of Rs. 9.5 crores (Rs. 2 crores towards medical college and Rs. 7.5 crores towards hospital facilities) required to be furnished by the Trust for the establishment of medical college and hospital found to be adequate/genuine on all counts.

(d) On 23rd July 2009, the Admission Committee for Professional Medical Education Courses granted admission to the Petitioners and they have completed 1st Year M.B.B.S. course.

(e) On 15th July 2010, the Medical Council of India,

after considering the inspection carried out by it steam on 21st/22nd June 2010, decided not to renew the permission for admission of second batch of students for the academic year 2010-2011 at Respondent No. 8 -College as the inspecting team found various deficiencies.

7. To put it elaborately, the Board of Governors considered the assessment report dated 21st and 22nd June 2010 and noted the following deficiencies:

I. Infrastructural facilities are inadequate as noted below:

� Examination Hall - cum - auditorium not available.

� Common Rooms:

-Boys: Rooms with inadequate space area 40 sq.mt.

-Girls: One room with inadequate space area 40 sq.mt. with table tennis and carom board. Attached toilet not kept hygienically. No drinking water available.

� Minor OT and labour room are very unhygienic and unkept.

� The post opt. care beds and in ward beds were also very unhygienic and No. proper BMW was there.

� Hostels: Hostel for boys and girls are grossly inadequately furnished and even the facilities are not available. Mess facilities are grossly deficient. Only one common mess for boys and girls including resident doctors and faculty is available.

� RMO block visited by the team does not have any toilet facilities. Also No. drinking water facilities.

� Sports and recreation facilities: Play ground is not available for outdoor games. Facilities are available for indoor games. Gymnasium facilities are also not available.

II. Clinical material is grossly inadequate as noted below:

� The clinical material is grossly inadequate as under:

I further submit that as per the Regulations of the Medical Council of India, transfer of only 5% of the students of a particular medical college after 1st MBBS is permitted from that particular medical college to another medical college. However, this migration has to be within one month of declaration of the 1st MBBS result. Since this is not the case for the Petitioners here, therefore bound by the Medical Council of India Regulations, the State Government cannot take the responsibility of 148 students for the purpose of transferring them to another medical college.

I say and submit that there are only 6 Government Medical Colleges in the State, with the permitted annual intake of 955 MBBS seats. There are 3 medical colleges under the Ahmedabad Municipal Corporation and Surat Municipal Corporation and 3 self-finance colleges and 1 self-finance college (Deemed University). The requisite infrastructure, teaching facilities and faculties etc, as per MCI norms, is available for 955MBBS students. In view of this, the State Government is not in a position to accommodate 148 students of K.J. Medical College for further medical education.

8. Once again, a further affidavit has been filed by the State Government trying to bring to the notice of this Court the difficulties and anomalies which would arise on allotting the students of Respondent No. 8 - College to other institutes run by the local bodies and/or the State Government. In the said affidavit, it has been observed as under:

In the order of merit, the students having secured highest marks at 12th Science and GUJCET seek and procure admission in the State managed medical colleges. Copy of the merit list of the concerned year would show that students having highest percentile ranking have opted for Local Bodies or Government managed medical colleges. In so far as the present Petitioners are concerned, in terms of the order of merit they stand substantially lower in merit to those who have secured admission in State medical colleges. It is an admitted position that students higher in merit opt for State managed medical colleges as against the self-finance institutes which are opted for by the students having secured far less percentage in terms of marking. The students of B.J. Medical College have secured on an average 94.10% marking as against the students of K.J. Mehta General Hospital who have secured 81% of marking. Placing students of K.J. Mehta General Hospital at par with those of B.J. Medical College and other State run medical institutes would be giving unfair advantage to these students, as well as depriving other students having procured admission in other self-finance institutes from availing of similar such benefits. Procedural lapses by T.B. Hospital Trust managing the K.J. Mehta General Hospital cannot give a premium to the students of K.J. Mehta General Hospital and the same would run counter to the principles of equality, justice and fair play.

I say and submit that the disparity in the fee struture is also a matter for the kind consideration of this Hon''ble Court since every seat in the Stte running college is at an extreme premium and with a lot of efforts students manage to procure admission in these premium seats. The disparity in fee structure also is a matter of concern since students studying in other self-finance colleges are deprived of similar such benefits. Whereas, on account of default of the institute in complying with the norms, the students of the said institute would gain undue advantage. Permitting the institute - K.J. Mehta General Hospital run by K.J. Mehta T.B. Hospital Trust to commit such irregularities and then pass off their responsibilities would encourage such institutes to continue perpetrate the breach of MCI norMs.

Institutes run by the State charge nominal fees, for example B.J. Medical College charges fees to the tune of Rs. 6,000/-per year as against K.J. Medical General Hospital run by K.J. Mehta T.B. Hospital Trust, Amargadh,Bhavnagar which charges Rs. 2.75 lakh annually.

It is most respectfully submitted that in terms of the directions issued by the Hon''ble High Court, in the event of additional students being admitted in the second year, the number of students so admitted would have to be adjusted in the subsequent year such that the intake capacity is within that prescribed by the Medical Council of India. For example if 100 students of the first year MBBS are to pass out and be admitted in the second year of MBBS and 50 more students are to be admitted from amongst the present Petitioners in the next year, the intake capacity of the institute shall stand reduced to 50 on account of having admitted 50more students in the second year. This would seriously jeopardize the interest of the institutes of the State since the intake capacity of new students would standreduced.

I say and submit that the Petitioners have made a categorical statement before this Hon''ble Court that the State Government has a deposit of Rs. 6 crores and the said amount could be used to build up the infrastructure in any of the State managed medical college if so deemed necessary. I say and submit that the said fact is categorically denied. There is no deposit of K.J. Mehta General Hospital lying with the State Government. As on date, K.J. Mehta General Hospital in terms of Essentiality Certificate was required to furnish bank guarantee of Rs. 2 crores infavour of the State Government, however, the said bank guarantee has also not been furnished till date. As on date there is No. amount lying deposited with the State Government. K.J. Mehta General Hospital has, however,furnished a bank guarantee to the MCI to the extent of Rs. 9.5 crores and such amount is lying with the MCI.

In view of the above referred facts whilst the State Government is conscious of the predicament of the students considering the various aspects of the matter including the disparity of the marks and merit of the students, the fee structure, the requirement of adjusting these students against the future intake of each of the institute. It is most humbly and respectfully submitted that the workable solution arrived at by this Hon''ble Court in Special Civil Application No. 2621 of 2009 vide order dated 22.4.2010be adopted, a Committee headed by Dean, B.J. MedicalCollege, Ahmedabad, Joint Secretary, Health & Family Welfare Department, Government of Gujarat, a representative from University, Dean of Kesarsal Medical College, a representative of the Trust, be constituted in terms of the said order and ensure the norms prescribed by the MCI are complied with, the education of the students does not suffer.

9. Thereafter, the Petitioners by way of an affidavit-in rejoinder brought to the notice of this Court that 117seats as on today are vacant in the second year MBBS course in six Government colleges. The details as produced by the min their rejoinder are as under:

Thereafter, the learned Government Pleader, on instruction from Dr. P.D.Vithalani, Additional Director, Medical Education, and Mr. Dinesh Parmar, Under Secretary, Health Department, informed the Court that recently two medical colleges i.e. (1) GMERS Medical College, Sola, Ahmedabad,and (2) GMERS Medical College, Gotri, Vadodara have been opened in the State. He further informed that the State Government may not have objection to accommodate the students in the said two medical colleges which have been recently granted recognition for one year by the Medical Council of India.

10. Under the circumstances, we directed the Medical Council of India and the Central Government to file affidavit and state as to why the Court may not direct the Medical Council of India and the Central Government to grant permission to the management of both GMERS Medical College,Sola, Ahmedabad and GMERS Medical College, Gotri, Vadodara to accommodate the Petitioners - students and other similarly situated students of Respondent No. 8 - College in the second MBBS course and those who are unsuccessful in the first MBBS course and if necessary, the Medical Council of India will increase such number of seats. We also directed that the Board of Governors of the Medical Council of India shall hold an urgent meeting and take a decision. We also clarified that if it was not possible to accommodate the Petitioners - students in those two Medical Colleges then the Medical Council of India shall give the names of such recognized Medical Colleges in which the students can be accommodated for which the State Government may write a formal letter for increase in the numbers of seats.

11. The Medical Council of India also filed its reply in this regard and took the stand as below:

That it is respectfully submitted that in newly established medical colleges, there would not be sufficient clinical material, infrastructure and number of teachers to accommodate the students in second year of MBBS course which require higher clinical material, infrastructure and teachers. Therefore, it would not be permissible in law to permit the students of K.J. Mehta Medical College to be admitted in the second year of MBBS course in newly established medical colleges. There is No. provision in I.M.C. Act, 1956 and Regulations framed thereunder to allow admission of students in colleges in 1st year M.B.B.S. Course.Therefore, in accordance with law, the Board of Governors is not in position to permit the students of K.J. Mehta Medical College to be admitted in second year.

That it is respectfully submitted that the concept of renewal of permission in Dental College which is similar to Medical College has been discussed by the Hon''ble Supreme Court in the case of Priya Darshni Dental College and Hospital Vs. Union of India (UOI) and Others, the Hon''ble Supreme Court in paragraph25 has discussed the above sadi concept which is quoted here in under for ready reference:

25. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student''s strength will increase. If the permitted intake is 100, usually there will be 100 students in the first year, 200 students in the second year, 200 students in the third year, 400students in the fourth year and 500 students in the fifth year. Thereafter, the strength may remain constant. As the strength increases gradually every year, correspondingly the infrastructure and faculty will have to be increased.

That it is respectfully submitted that the infrastructure requirements of the medical college at the stage of 1st renewal of permission as per the Regulation of MCI for admitting the students in second batch of M.B.B.S. are higher than at the stage of letter of permission. Therefore, without meeting the infrastructure and other requirements of 1st renewal of permission, the teaching of the students of K.J. Mehta in newly established college would neither be in accordance with statutory clearances already accorded nor in the interest of maintaining minimum standards of medical education as prescribed under the IMC Act 1956.

That it is respectfully submitted that the issue was placed before the Board of Governors after the order of this Hon''ble Court and the Board in view of the above facts decided that it is for the State Government to act in accordance with Essentiality Certificate and submit a proposal to the said effect to the Medical Council of India.

That it is respectfully submitted that the State Government has given the undertaking in the form of Essentiality Certificate that it would fulfill the requirement of the Regulation and, therefore, it is the primary responsibility of the State to accommodate these students in recognized medical colleges of the State Government in view of the Essentiality Certificate issued by the State of Gujarat.

12. Taking into consideration the stand taken by the Medical Council of India, we once again requested the Secretary, Medical Council of India to remain present and assist the Court as to how the Medical Council of India would like now to resolve the dispute. Dr. Sangeeta Sharma, Secretary, Medical Council of India stated that the Medical Council of India is ready to accommodate the Petitioners-students in those recognized State Government Medical Colleges. If necessary, students can be accommodated along with their seats as per the decision of the Supreme Court of India in the case of Asheesh Pratap Singh v. M. Sachdev, reported in 2003 (2) SCC 409, given in similar situation. She further informed the Court that the seats will lapse after the students are promoted to higher course and once they come out successful from the college. She further submitted that the State Government is the competent authority to give details of recognized Government Medical Colleges where the students can be accommodated.

13. Taking into account the interest of the students and the fact that Respondent No. 8 - College having not been further recognized for session 2011-2012 by the Medical Council of India and also taking into consideration the judgments of the Supreme Court in the case of Asheesh Pratap Singh(supra); Government of Andhra Pradesh and Another Vs. Medwin Educational Society and Others, we passed the following order on 12th July 2011, which reads as under:

The State Government and its concerned Officers are directed to provide the list of recognized Government Medical Colleges in the State where Petitioners and other similarly situated students can be accommodated in M.B.B.S. Course. Those students passed First

M.B.B.S. Course from K.J. Mehta General Hospital and Medical Sciences, Bhavnagar, will have to be accommodated in the Second Year. Those who could not be successful in the First M.B.B.S. Examination while studying in the K.J. Mehta General Hospital and Medical Sciences, Bhavnagar, they will have to be accommodated in the First Year M.B.B.S. Course.

The Respondents are also directed to state why State Government will not accommodate all the students of M.B.B.S. Course of K.J. Mehta General Hospital and Medical Sciences, Bhavnagar, in recognized Government Medical Colleges. If there is No. seat to accommodate them, then the students may be accommodated along with their respective seats. In such case, on promotion to the next higher Course, the seat of the lower Course of the transferred College shall stand abolished and it will stand upgraded to the next higher M.B.B.S. Course.

For example, if a student is accommodated in the First M.B.B.S. Course along with his seats in one of the Government Colleges, say B.J. Medical College, Ahmedabad and later on promoted to the Second M.B.B.S. Course, the seat with which he is accommodated in B.J. MedicalCollege, Ahmedabad will stand abolished for the First M.B.B.S. Course and shall stand upgraded for Second M.B.B.S. Course. Similarly, on promotion to Third M.B.B.S. Course, the seat will stand abolished in the Second M.B.B.S. Course and stand upgraded for Third M.B.B.S. Course. This will continue till he passes out M.B.B.S. Course successfully. Once the student comes out successful, the seat finally will stand abolished.Thus, there may be a temporary increase of seat in one or other Government Medical Colleges for the present,which will stand upgraded on passing out of student to the higher Course and finally stand abolished and thereby in No. manner the total number of seats of such recognized Government Medical College will increase, for which permission granted by Medical Council of India. There an example, that an institution has been granted permission to admit 100 M.B.B.S. students and10 students are allowed to be admitted in the second year by adjustment in view of the peculiar situation, then for the purpose of second year, 10 seats will stand increased to 110 (100 + 10). Next year if out of10 accommodated students, 9 students are promoted to the third year, then 9 seats will stand upgraded for the third year M.B.B.S. Course and one seat will continue to remain for second M.B.B.S. Course. Similarly, if they are promoted to higher M.B.B.S.Course, the seat will be upgraded accordingly. The moment students come out successful in the Course, their respective seats will stand abolished, thereby the strength of the institution will always remain 100till by special order they get permission for further increasing the seats. If the Medical Council of India gives such permission, it will not be treated to be additional seat for the purpose of such recognized Government Medical Colleges, but it will be treated to be adhoc arrangement to accommodate an M.B.B.S. student of another college.

We may make it clear that there will be approximately about 148-150 students who will have to be accommodated in the recognized Government Medical Colleges.

The matter being urgent, immediate verification be made by the State Government who will provide lists of recognized Government Medical Colleges of the State and will file affidavit.

The Medical Council of India will also file additional affidavit in terms with the stand taken by Dr. Sangeeta Sharma, Secretary, Medical Council of India, before this Court. Post the matter for further hearing on 18thJuly, 2011 at 2.30 P.M.

14. After our order referred to above dated 12th July 2011, the State Government, through its Under Secretary, Health and Family Welfare Department, filed an affidavit highlighting some of the problems and anomalies which would arise on allotting the students of Respondent No. 8 - College to other institute run by the local bodies and/or the State of Gujarat. We were quite disturbed with the stand which the State Government adopted and we found that the State Government was not ready and willing to takeover the responsibility of all the 148 students to ensure their admissions in the appropriate M.B.B.S. Course in recognized medical colleges of the State. We invited attention of learned Government Pleader appearing for the State Government to the Essentiality Certificate which was issued by the Government of Gujarat in favour of Respondent No. 8 College dated 23rd September 2008, wherein it has been stated as under:

Adequate clinical material as per the Medical Council of India norms is available. It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government.

We are also informed that in the Essentiality Certificate it has been stated that Respondent No. 8 - College shall give bank guarantee worth Rs. 2 crores in favour of Government of Gujarat as per Government Resolution No. MCG-1097-2454-J dated 20th June 2001, which has also not been complied with.

16. In the above view of the matter, we had to remind the State Government that when the State Government, while giving permission to the private medical college in question, has made it clear at Clause 11 that in the event the institution is closed, the State Government will ensure that the students will be accommodated in other medical colleges. We, therefore, asked the State Government to takeover the responsibility of the students already admitted in the college with the permission of the Central Government. We also directed the State Government including the Principal Secretary, Health Department of the State to give the names of Government Medical Colleges in which the said 148 students can be accommodated.

17. Thereafter, the State Government, through its Under Secretary, Health and Family Welfare Department, once again filed an affidavit stating that the subject matter has been considered at the highest level and the Government took a decision that 148 students can be accommodated in six recognized Government Medical Colleges in the State of Gujarat, which reads as under:

In the said affidavit, it was further averred as under:

I respectfully say that as per the Essentiality Certificate issued to K.J. Mehta Hospital and Institute of Medical Sciences, Amargadh, Bhavnagar, the State Government is undoubtedly responsible to take care of 148 students of the said college which has been recently denied permission by the Medical Council of India. However, if the State Government is allowed to accommodate the said 148 students among 6 recognised Government Medical Colleges and 4 recognised Self-financed Medical Colleges on practical basis as detailed hereunder, the same would ensure that there is No. crushing burden on the infrastructure facilities of the State Government-run Medical Colleges only and the burden is evenly distributed amongst practically all the Medical Colleges of the State, while taking care of the interest and career of the said 148 students. Such an arrangement was in fact conceived by the Hon''ble Supreme Court in case of Asheesh Pratap Singh and Others Vs. M. Sachdeva and Others, where the students of Azamgarh Medical College in U.P. were considered for accommodation in both, the Government-run Medical Colleges as well as the Private-run Medical College. Even in case of Valia Medical College, the students were allotted in both, Government Medical College and Self-financed Medical College.

I further respectfully say that on 25.7.2011, the State Government called a meeting for holding consultation with consideration the academic reject the prayer for stay.