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Dr. Shasi v. Union Of India Thru' Secy. & Others - WRIT - C No. 44173 of 2005  RD-AH 4437 (24 February 2006)
COURT NO. 26
CIVIL MISC. WRIT PETITION NO. 44173 OF 2005
Union of India and others
HON. SHISHIR KUMAR, J.
This writ petition has been filed for quashing the order dated 21.5.05, Annexure-4 to the writ petition and a direction in the nature of mandamus commanding the respondents not to hold entrance examination on 30.5.2005 and further a writ of mandamus commanding the respondents not to declare the result/admissions on 31.5.2005.
The petitioner has filed the present writ petition on the ground that respondents no. 5 and 6 is not recognized college having no affiliation with any University or permission to run the medical course. The said college got admitted 100 students in MBBS course for Session 2005 even though the said college is not having any affiliation with any University. The admissions are totally to the contrary to the provisions of Indian Medical Council Act, Rules and Regulations framed thereunder. The Director, General, Medical Education wrote a letter dated 7.10.2004 to the Principal Secretary, Medical Education with request to take suitable action against the said college as the said college has made totally irregular and illegal admissions in MBBS course. The Chancellor of the University, Dr. Bhimrao Ambedkar University sent a letter to the Chief Secretary, State of U.P. and Secretary, Medical Council of India and other various authorities giving the details that University at Agra granted temporary permission/affiliation for Session 2002-03 and 2003-04 after that no permission has been granted by the University concerned. Respondents no.5 and 6 have not completed the various formalities as prescribed under the rules, nor they are having sufficient infrastructure to run the technical course of MBBS, MDS. The application for permanent affiliation has already been rejected on 26.10.2004. On 16.5.2004 the Central Government refused to consider the renewal of permission in all specialties of the subject, Dental College for non-production of permanent University of affiliation of academic session of 2005-06. Respondent no.6 published an advertisement in ''Dainik Jagaran' dated 21.5.2005 for entrance test for admission in MDS course. The date of entrance test was 30.5.2005 at 10. a.m. and the date of declaration of result was 31.5.2005. The petitioner is BDS and is fully qualified for appearing in the entrance test for admission in MDS Course. She visited Meerut on 23.5.2005 for issuance of application form for entrance test in MDS course. Then she came to know that the Central Government has refused to grant renewal to respondent no.6. It has further been submitted that action for holding entrance test by the college management is totally illegal, void and based on extraneous consideration. The petitioner submits that there is neither affiliation nor any permission by the Central Government for opening the higher courses in dental college under the provisions of establishment of new Dental Colleges.
The writ petition was entertained and the notices were issued to respondents no.4 to 6 and a direction to this effect was issued that no admission shall be taken in the MDS course in pursuance of the order dated 21.5.2005 to the writ petition. The contesting respondents filed a counter affidavit and raised a preliminary objection regarding maintainability of the writ petition and have submitted that the petitioner cannot maintain the present writ petition, as the petitioner does not come under the definition of ''person aggrieved'. She has never submitted any application for admission and has not appeared in the entrance test as such, the petitioner cannot maintain the writ petition, as there is no individual cause of action. The present writ petition is not in the nature of public interest litigation, as such in view of the Article 226 of the Constitution, the present writ petition is liable to be dismissed on this ground alone.
I have heard Sri P.M.N. Singh, Senior Advocate assisted by Sri Budh Prakash for the petitioner and Sri R.N. Singh assisted by Sri Anurag Khanna for the respondents and have perused the record. Admittedly the petitioner has not submitted any application before the respondents for getting an admission in MDS course though the scope of Article 226 of the Constitution of India is very wide but it is a discretionary jurisdiction conferred by the Constitution upon the courts. The person who complains of infringement of fundamental right must show that the alleged fundamental right belongs to him. The application under Article 226 of the Constitution of India must be based on existing legal right. The rights that can be enforced under Article 226 of the Constitution of India, must ordinarily be right of the petitioner herself except in cases of Habeas Corpus and quo-warranto though somebody who has been prejudicially affected by the act or omission, complaint of, can apply for a right, even though he may not have a propriety or even fiduciary interest in the subject matter.
The petitioner is not able to show from the record or on the basis of the submissions made on behalf of the petitioner that how the petitioner is aggrieved or how any of her fundamental rights are being affected. It is not in dispute that the petitioner if chooses or advised, can file a Public Interest Litigation but admittedly the present writ petition is not in the nature of Public Interest Litigation.
In the last after the arguments were over, the counsel for the petitioner has requested to convert the said petition into the Public Interest Litigation but the Court is of opinion that as the present writ petition is not maintainable as the petitioner does not come under the definition of ''person aggrieved', the present writ petition is not maintainable and is hereby dismissed. It is however, open to the petitioner to file Public Interest Litigation, if so advised. No order as to costs.
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