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SUBHARATI K.K.B. CHARITABLE TRUST versus DR. BHIM RAO AMBEDKAR UNIVERSITY, AGRA THRU' ITS REGISTRAR

High Court of Judicature at Allahabad

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Subharati K.K.B. Charitable Trust v. Dr. Bhim Rao Ambedkar University, Agra Thru' Its Registrar - WRIT - C No. 8731 of 2006 [2006] RD-AH 7391 (5 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No. 8731  of  2006

Subharati K.K.B.Charitable Trust................................Petitioner

Versus

State of U.P. and another...........................................Respondents.

Connected with-

Civil Misc. Writ Petition No.17283 of 2006

Ms Surbhi Vasudeva and 19 others.....................................Petitioners

 Versus

Dr. Bheem Rao Ambedkar University and others...........Respondents.

********

Hon.Tarun Agarwala,J.

The petitioner is a Trust and has established institutions in primary, secondary, higher and technical  education. The petitioner is running a Law College, a Management College, Mass Communication College, Physiotherapy College, Paramedical College, Science College, Dental College and a Medical College.

The present dispute relates to the non-holding of the examinations and the declaration of its results by the University in the Medical College, Dental College and Physiotherapy College run and managed by the petitioner.

The petitioner contends that necessary permission has been granted by the Medical Council of India and the Central Government for the aforesaid Medical College,Dental College and Physiotherapy College. The Medical College has been granted temporary affiliation upto the session 2004-2005 and that the Dental College was granted permanent affiliation and that the Physiotherapy College has also been granted affiliation by the respondent University, namely, Dr. Bheem Rao Ambedkar University, Agra. In paragraph 13 of the writ petition the petitioner contended that the examination of eight courses are required to be conducted by the University, the details of which are given herein below:-

Sl.

No.

Course & Batch of which examination is pending

Date of permission granted by the Central Government

Date of Affiliation granted by University

Dateof last Examinat-ion held by the University

Due date of Examint-

ion.

1.

MBBS 2nd Professional

Main Examination

(2002 Batch)

13th March

2003

25 September

2003

Ist Prof. Exam conducted on 10-06-2004

October 2005

2.

MBBS Final

Professional

(Part-I) Main Examination

(2001 Batch)

February

2002

31 August 2002

Ist Prof. Examination  conducted on 03.12.2004

September/

October 2005

3.

MBBS Final

Professional

(Part-II) Main Examination

(2000 Batch)

23rd January 2001

03rd March 2001

Final Part-I Main Exam    03.12.2004

November/

December 2005

4.

BDS 3rd

Professional Main Examination

(2002 Batch)

20 June 2002

11 August 2003

02.02.2005

January 2006

5.

BPT 1st  Professional Main Examination

(2004 Batch)

1st July1999

28 August 1999

Due

September 2006

6.

BPT 2nd  Professional Main Examination

(2003Batch)

1st July1999

28 August 1999

16.10.2004

November 2005

7.

BPT 3rd  Professional Main Examination

(20043Batch)

1st July1999

28 August 1999

16.10.2004

November 2005

8.

BPT 4th  Professional Main Examination

(2001 Batch)

1st July1999

28 August 1999

09.08.2004

September, 2004

In paragraph 16 of the writ petition, it has been alleged that the University conducted the examinations in three courses in the month of September 2005, the results of which have not been declared so far. Consequently, the present writ petition has been filed for a writ of mandamus commanding the Respondent University to hold the examinations in the eight courses as indicated aforesaid and, to declare  its results. The petitioner has further prayed that the results of the examinations conducted for the BPT Ist Professional Examination for 2003 batch, BPT IInd Professional Supplementary Examination 2002 Batch and BPT IIIrd Professional Main Examination 2000 Batch should also be declared.

20 students admitted in the 2003 batch of Physiotherapy in the Physiotherapy College of the petitioner have also filed a writ petition praying for a direction to the University to conduct and hold the IInd year examination of the BPT and to declare its result. It is alleged that for running a BPT course, no recommendation is required from the Medical Council of India and that the students are admitted on the basis of the Entrance Examination conducted by the University itself. The University has granted affiliation to the College for running a BPT course. The grievance of the petitioners is, that the University is the examining body and could not refuse to hold the examination. Since counter and rejoinder affidavit's have been exchanged in the writ petition filed  by the Trust, the facts indicated therein are referred in this judgment.

At the time when the writ petition was filed by the Trust, the Court granted time to the Counsel appearing for the University to seek necessary instructions. Before the petition could be taken up for consideration, the University announced a schedule for holding the examinations in four courses. On the basis of this fact and, other material brought on the record and after hearing the counsel for the parties, an interim order dated 22.2.2006 was passed by the Court directing the University to hold the written examinations of the four courses as per the schedule announced by the University and, further conduct the practical examinations and viva-voce and thereafter declare the results. The Court, further directed the University to announce the schedule for the remaining four courses and conduct the examinations or show cause by filing a counter affidavit. The Court further passed an interim order on 26.2.2006 permitting the students who had failed in the previous examination to appear in the supplementary examination in their respective courses.

A counter affidavit has been filed by the University indicating the reasons for not declaring the results and for not conducting the examinations.

Heard Sri R.N.Singh, the learned Senior Counsel assisted by Sri Anurag Khanna for the petitioner and Sri Kesari Nath Tripathi, the learned Senior Counsel assisted by Sri Anil Tiwari, for the respondent University. Sri Swapnil Kumar, learned counsel for the petitioner in the connected writ petition has also been heard.

The learned counsel for the University submitted that the petitioner has not impleaded the Union of India through the Ministry of Health and Family Welfare, the Medical Council of India and the  Medical education department of the Government of U.P. who are necessary parties for the effective adjudication of the case. Further, a similar writ petition under Article 32 of the Constitution of India has been filed by the petitioner before the Supreme Court of India in which a similar relief had been claimed and that the writ petition was engaging the attention of the Supreme Court. Consequently, the writ petition filed by the petitioner before the High Court under Article 226 of the Constitution of India was not maintainable. Sri Tripathi, the learned Senior Counsel further submitted that the petitioner has not approached the Court with clean hands and has concealed material facts, namely, that the petitioner had filed a writ petition filed before the Supreme Court claiming a similar relief and that, the Government of India, Ministry of Health and Family Welfare Department of Health by its order dated 17.8.2005 had issued an order refusing to grant permission to the petitioner for the admission of the fresh batch of MBBS students for the academic session 2005-06. The submission of the learned counsel for the respondent is, that the permission to run the College had been refused by the Government of India by an order dated 17.8.2005 and this being a material fact, has been concealed deliberately by the petitioners while seeking a relief for the holding of the examinations and for the declaration of the results. The learned counsel for the respondents submitted that when the permission had been refused by the Central Government, the question of conducting the examinations and declaring its results did not arise, inasmuch as, the petitioner's College, as on date, is neither a recognized college nor is it an affiliated college of the University.

Before proceeding, it is necessary and appropriate to decide the preliminary objections. The respondents alleged that the Union of India and the Medical Council of India are necessary parties and, therefore, they should be impleaded as respondents in the writ petition so that their version could come before the Court. No arguments were raised on the question as to whether the Medical department of the State Government was a necessary party or not.

In my opinion, for the disposal of the present controversy, the Medical Council of India and the Union of India are not necessary parties. It is a well settled principle of law that the petitioner who primarily is a ''dominus litis'  must ordinarily have a choice to fight its litigation against such person as he may choose, unless the question involved  in the petition could not be completely decided without the presence of some other person, in which case, the Court would implead the said person as a party to the petition. But, where the presence of this person is not at all necessary and his right would not be jeopardised by the proceedings in the petition, in that eventuality, it would not be necessary to implead this person as a party. In the present case, the respondents have already placed the order of the Central Government declining to grant permission for the admission of the fresh batch of  the MBBS students in the Medical College. In my opinion, the order refusing to grant permission for the admission of the fresh batch of the MBBS students in the Medical College has no bearing with the controversy involved in the present proceedings as would be clear by the reasoning given in the subsequent paragraphs of this judgment.  Further, no relief has been sought by the petitioner against the Union of India, the Medical Council of India or the Medical department of the Government of U.P. Therefore,  the non-impleadment of the Union of India or the Medical Council of India or the Medical department of the State of U.P. is not fatal, and the writ petition could not be dismissed  solely on this account. The preliminary objection taken by the respondents cannot be sustained and is accordingly rejected.  

The learned counsel for the respondents further submitted that a similar relief has been claimed by the petitioner before the Supreme Court in a petition filed under Article 32 of the Constitution of India, which is engaging the attention of the Supreme Court and therefore, the writ petition filed under Article 226 of the Constitution of India for the same relief is, not maintainable.

I have perused the writ petition and other interim applications and affidavits filed by the petitioner before the Supreme Court. The main relief  claimed by the petitioner in the writ petition filed before the Supreme Court is -

"a) Issue a writ, order or direction in the nature of mandamus, directing the respondent no.2, MCI to implement its policy decision date 14.2.2001 regarding the counting of the experience of teachers of "approved" medical colleges under section 10-A of the MCI Act, equitably and in accordance with law, with respect to the teachers of the petitioner college;

b) Issue a writ, order or direction in the nature of mandamus, directing the respondent nos.1 and 2 to forthwith grant the petitioner college "renewal" permission for the academic session 2005-06."

Subsequently by  an amendment application, the petitioner prayed for the following reliefs:

"a) Issue a writ or order in the nature of certiorari quashing the recommendation of the MCI dated 13.08.2005 (Annexure P-31), recommending that the respondent no.1 not grant "renewal" permission to the petitioner college to admit a batch of students to its MBBS course in the academic session 2005-06;

b) Issue a writ or order in the nature of certiorari, quashing the impugned letter Annexure P-32 (no.U.12012/ 69/96- ME (P-II) dated 17.8.2005) passed by the respondent no.1 refusing renewal of permission to the petitioner college for admission of students to its MBBS course for the academic session 2005-06."

It further transpires that during the pendency of the writ petition before the Supreme Court, the petitioner moved an interim application  dated 8.11.2005 praying for an interim relief, namely-

"(c)  allow the Petitioner to conduct the final professional examination of the eligible students."

On the basis of this prayer, the respondents are contending that a similar relief has been claimed by the petitioner before the Supreme Court which is engaging the attention of the Supreme Court and, therefore, a second writ petition for the same relief is not maintainable and that the writ petition should be dismissed on this ground itself.

In my opinion, the objection raised by the learned counsel for the respondent is patently misconceived and bereft of merit. Admittedly, the main relief sought by the petitioner before the Supreme Court was a writ of mandamus commanding the Medical Council of India to implement its  policy decision dated 14.2.2001 regarding the counting of the experience of teachers of approved Medical Colleges under Section 10-A of the Indian Medical Council Act, 1956. During the pendency of the writ petition, the Medical Council of India recommended that permission for the admission of the fresh batch of students in the MBBS course for the academic session 2005-2006 should not be granted, on the basis of which, the Central Government issued an order dated 17.8.2005. Consequently, an amendment application was filed for the quashing of these orders. In the present petition, the petitioner has prayed for a writ of mandamus commanding the University to conduct and hold the examinations and thereafter declare the results of the various batches in the MBBS course, BPT course and BDS course. It is therefore clear, that the relief claimed by the petitioner before the Supreme Court was entirely different to the controversy involved in the present writ petition. No doubt, the petitioner had filed an interim application before the Supreme Court seeking an interim relief permitting them to conduct the final professional examination of the eligible students. In my opinion, this interim relief by itself and, which is not the main relief, would not disentitle the petitioner in approaching the Writ Court before the High Court. In view of the aforesaid, the objection raised by the learned counsel for the respondent is misconceived.

Coming to the merits of the case, it is clear that under Section 10-A of the Indian Medical Council Act, 1956, no person can  establish a Medical College or open a higher course of study or training except with the previous permission of the Central Government. Sub-clause (2) of Section 10-A of the Act provides that a person shall submit a scheme to the Central Government for obtaining the permission for the establishment of a new Medical College and, in turn, the Central government would refer the scheme to the Medical Council of India for its recommendation. Sub clause (3) of Section 10A provides that on the receipt of the scheme, the Medical Council of India would obtain such information and particulars as may be considered necessary and submit its recommendation to the Central Government. The Central Government after considering the recommendation of the Council and, after obtaining such other particulars, may either approve with such conditions if any, or disapprove the scheme. Section 19 of the Medical Council Act provides for the  withdrawal of the recognition by the Central Government. This section provides that where it appears to the Medical Council that the courses of study and examination to be undergone in, or the proficiency required from the candidate at any examination, held by, any University or Medical institution, the facility for instructions or equipment, etc. provided in the institution does not conform to the standards prescribed by the Council, in that eventuality, the council would make a representation to the Central Government, who in turn, would send the matter to the relevant State Government where the Medical institution is located for necessary enquiry. The State Government after making necessary inquiry shall forward its recommendations to the Central Government. The Central Government after making such other inquiries, may by notification in the official gazette, pass orders with regard to the recognition or non-recognition of the medical institution.

From a perusal of the aforesaid provisions, it is clear that previous permission is required from the Central Government for an establishment of a Medical College. The recommendation so granted by the Central Government can be withdrawn under Section 19 of the Act. From a perusal of the record, it is clear that the Central Government had granted permission to the petitioner trust permitting it to admit the students in various courses for various academic sessions.

The petitioner has also sought affiliation with the respondent University. The affiliation is granted under the Uttar Pradesh State Universities Act, 1973. Section 7 of the Act provides the powers and duties of the University. Amongst others, one of the powers and duties of the University is to admit any College to the privileges of affiliation or recognition to hold examinations and to grant and confer degrees, diplomas, etc. to those who have pursued a course of study in the University or in an affiliated College. Under sub-clause (11) of Section 7 of the Act,  the University has been given the powers to lay down the conditions of affiliation.

Under Sub Clause (6) of Section 5 of the Uttar Pradesh State Universities Act, 1973, the institution established or proposed to be established for imparting education or instructions in western medical science is required to be affiliated to a University. Section 37 of the Act, read with Chapter XII of the Ist Statute of the Dr. Bheem Rao Ambedkar University Agra, provides the procedure for the affiliation of an educational institution with the University.  Section 37(2) of the Act provides that the Executive Council, with the previous sanction of the Chancellor, grant affiliation subject to such terms and conditions. Sub clause (8) of Section 37 provides that the University can withdraw the affiliation in accordance with the provisions of the statutes.

From a reading of the provisions of Section 10-A of the Indian Medical Council Act and Section 37 of the State Universities Act read with Chapter XII the Ist Statutes of the University, it is clear, that independent and separate powers have been given to the Central Government to grant or not to grant permission to a person to establish a Medical College,  as well to the University to grant or not to grant affiliation to a particular College. Obviously, affiliation can only be granted by the University after permission is granted by the Central Government and, to that extent, the matter is inter linked with each other, but, other than that, the powers are independent and the process of inquiry and inspection is separate and independent of each other.

Consequently, the contention of the learned counsel for the respondents that since permission has been refused by the Central Government, the University is no longer obliged to hold the examination, inasmuch as, there is no valid recognition of the Central Government and that the affiliation comes to an end automatically is misconceived. Even though, a temporary affiliation had been granted by the University for a period of one year for a specified subject, the said affiliation does not come to an end automatically. If the terms and conditions laid down by the University had not been complied with by the petitioner, it was open to the University to take an action against the petitioner by  withdrawing the privileges of affiliation by passing an order under sub clause(2) and under sub clause (9) of Section 37 of the Act read with Chapter 12 of the Ist Statutes of the University. There is nothing on record to show, that the University or the Chancellor of the University has passed an order withdrawing or curtailing the privileges of affiliation of the petitioner's Medical College. In the absence of an order of withdrawal or curtailing the privileges, the University has an obligation to do its duties as provided under Section 7 of the Act, namely, to hold the examinations and confer degrees to such persons who have pursued the course of studies in an affiliated College.

Sri Kesari Nath Tripathi, the learned counsel for the University submitted that since the permission to admit fresh students for the academic session 2005-06 had been refused by the Central Government by its order dated 17.8.2005, the affiliation so granted by the University was deemed to have been revoked and that  the petitioner's Medical College could no longer be held to be a recognized Medical College and, therefore the question of holding the examinations or declaring the results did not arise. In my opinion, the submission of the learned counsel for the respondent is incorrect. A perusal of the order dated 17.8.2005 of the Central Government indicates that the Government had decided not to renew the permission for the admission of the fresh batch of MBBS students in the Medical College of the petitioner for the academic session 2005-06. The order further states that the deficiency pointed out in the inspection report may be attended to, by the petitioner and, compliance thereto be sent to the Government at the appropriate time, so that the Government may consider the case of the petitioner, for the renewal of the permission of the admission of the students, in the next academic session.

A perusal of the order dated 17.8.2005 indicates that the permission for the admission in the MBBS course for the academic year 2005-06 had only been refused . The scheme approved by the Central Government under Section 10-A of the Indian Medical Council Act had not been disapproved or revoked, nor the Central Government has passed an order under Section 19 of the said Act for withdrawing the recognition. In the opinion of the Court, an order of refusal of permission for the admission of the students for the academic year 2005-06, does not mean, that the College cannot function or impart further education to its existing students. It does not mean that the Medical College has been derecognized  nor  does it mean that the College of the petitioner is no longer a Medical College.

The students admitted in various courses in various batches would continue to study in that College in which admissions had been given to them in the previous academic sessions and, in turn, the University would be obliged to conduct the examinations and declare its results. The stand taken by the University, that since permission had been refused, there was a deemed withdrawal of the affiliation is patently misconceived. In the instant case, there cannot be a deemed withdrawal of the affiliation, unless it comes within the four corners of Statute 12.29 of the Ist Statutes of the University, which contemplates, that an affiliated College shall be deemed to have been disaffiliated, if it failed to send any candidate, for the examination conducted by the University, for three successive years.

So long as the affiliation granted by the University continues and is not withdrawn or curtailed, the University is obliged to hold the examinations and declare its results as provided under Section 7 of the State Universities Act. In the opinion of the Court, the action of the respondents in not holding the examinations and in not declaring the results  is clearly deplorable and does not appear to be bonafide.

The contention of the University that once permission is refused by the Central Government to admit fresh students in the College for the academic session 2005-2006 on account of the non-compliance of the deficiencies indicated by the Medical Council of India, it therefore means that the staff, equipment, training and other facilities for instructions do not conform to the standard prescribed by the Council. Consequently, further teaching and imparting education to these students, as per the standards prescribed by the Council, having not been made by the petitioner, the question of holding examinations for these students  does not arise. In my opinion, the submission of the learned counsel for the respondents is bereft of merit. The students who have been validly admitted, after permission being granted by the Central Government   under Section 10-A  of the Indian Medical Council Act coupled with the order of affiliation granted by the University, cannot be left in the lurch. The University cannot take a stand that now it will not conduct the examinations or declare the results of the examinations already conducted by them. A student, who has completed four years of studies, under valid permission being granted by the Central Government during which time the University had also granted affiliation, cannot be left in the lurch and be told to seek admission elsewhere. The responsibility to hold the examinations and to declare its result remains with the University.

It is relevant to state here that by U.P. Act No.1 of 2004, the Uttar Pradesh State Universities Amendment Act 2003 was promulgated incorporating a proviso to sub-section(2) of Section 37 and inserting sub-section (10) to Section 37 of the Act which are quoted herein below-

"Section 37(2)

The Executive Council may, with the previous sanction of the Chancellor, admit any college which fulfils such conditions of affiliation, as may be prescribed, to the privileges of affiliation or enlarge the privileges of any college already affiliated or subject to the provisions of sub-section(8), withdraw or curtail any such privilege:-

Provided  that if in the opinion of the Chancellor, a college substantially fulfils the conditions of affiliation. The Chancellor may sanction grant of affiliation to that college or enlarge the privileges thereof in specific subjects for one term of a course of study on such terms and conditions as he may deem fit;

Provided further that unless all the prescribed conditions of affiliation are fulfilled by a college, it shall not admit any student in the first year of the course of study for which affiliation is granted under the foregoing proviso after one year from the date of commencement of such affiliation."

"Section 37(10)

Notwithstanding anything to the contrary contained in any other provisions of this Act, a college, which has already been given affiliation to a University before the commencement  of the Uttar Pradesh State Universities (Amendment )Act, 2003 in specific subjects   for a specified period, shall be entitled to continue the course of study for which admission have already taken place but it shall not admit any student in the first year of such course of study without obtaining affiliation under sub-section(2)."

This amendment was incorporated in view of the fact that the High Court in Writ Petition No.5881(M/B) of 2002 Committee of Management, Param Hans Degree College, Bahraich Vs. Chancellor and others, decided on 18.11.2002, held that only a permanent affiliation could be granted under Section 37 of the Act and that no temporary affiliation could be granted. In order to over come the said judgment, the amendments were made. The proviso to sub-section (2) of Section 37, indicates that where a college substantially fulfils the condition of affiliation, the Chancellor may sanction an affiliation to that college or enlarge the privileges in a specific subject for one term.

Sub-section (10) of Section 37 clearly indicates that where a college has already been given affiliation in a specific subject for a specified period, the said college would be entitled to continue the course of study for which admissions have already taken place but would not admit any student in the Ist year of such course of study without obtaining affiliation under sub-section(2). Sub-section (10) of Section 37 was inserted basically to protect the students from continuing with the course in which they had been admitted earlier. The only embargo placed upon the college is, that though it can continue to impart education to those students who had already been admitted, the college would not admit any fresh students in the Ist Year of such a course of study without obtaining affiliation under sub-section(2) of the Act. In the present case, admittedly no admissions have been made by the petitioner for the academic session 2005-2006 in MBBS in view of the order of the Central Government dated 17.8.2005. The refusal of such permission would not deny the petitioner not to impart education to the students, who had already been admitted in various courses previously. The College would be entitled to continue the course of study for which admissions had already taken place previously and, in its turn, the University was obliged to conduct the examinations and declare its results.

The submission of the learned counsel for the respondents that the affiliation was subject to the grant of the permission by the Government of India, as is clear from Form No.3 of the Medical College Regulations, 1999, is patently erroneous. As stated earlier, independent powers have been given to the University under the State Universities Act to grant or withdraw the affiliation. In any case, if permission to admit the students for the fresh batch of the MBBS students for 2005-06 had been refused by the Central Government, it did not mean, that the affiliation already granted by the University came to an end automatically or that there was a deemed withdrawal of the affiliation. A specific order of withdrawal of the affiliation is required to be passed by the University.

In view of the aforesaid, the stand taken by the University, namely, that it was not entitled to hold the examinations or to declare the results of the examinations conducted by it, on account  of the refusal by the Central Government to admit fresh students for the academic session 2005-06,  is patently erroneous.

The learned counsel for the respondent submits that since the petitioner's Medical College had failed to create the infrastructure as per norms laid down by the Medical Council of India, and the admissions having been stopped by the Central Government, in that event, the State Government would take over the responsibility of the students  already admitted in the College after taking permission from the Central Government Consequently, the students would not suffer as the responsibility would now be of the State Government. The learned counsel, in this regard has relied upon Form No.2 of the Medical College Regulations 1994. In my opinion, the condition mentioned in Form No.2 has no relevance, inasmuch as, the Central Government has not withdrawn the recommendation under Section 19 of the Medical Council of India Act. In fact, from a perusal of the order dated 17.8.2005, it is clear, that the Central Government has directed the petitioner to remove the deficiency so that the Central Government could grant permission for the admission of the students for the next academic session. Consequently, there is no withdrawal of the recommendation by the Central Government. Further, there is nothing to indicate that the State Government has taken over the responsibility and have adjusted the students in other colleges after obtaining permission from the Central Government. In the absence of an order of the State Government or of the Central Government, the responsibility still remains with the University to conduct the examinations.

Sri Kesari Nath Tripathi placed reliance upon the three decisions of the Supreme Court in the case of Union of India and others vs. All India Children Care and Educational Development Society Azamgarh and another 2002(3) SCC 649, Asheesh Pratap Singh and others vs. Union of India and others, (2002)4SCC 216 and in the case of Ashish Pratap Singh and others vs.  M. Sachdeva and others, 2003(2)SCC 309. In my opinion, the aforesaid three decisions of the Supreme Court are distinguishable and has no application to the present facts and circumstances of the case. The aforesaid three decisions related to the establishment of the Medical College in Azamgarh wherein the High Court allowed the writ petition holding that there was a deemed approval of the scheme submitted by the Society under Section 10-A of the Medical Council of India Act. The Supreme Court held that there could not be a deemed approval of the scheme unless the application submitted by the Society was in full compliance of the statutory and mandatory pre-conditions laid down under Section 10-A of the Act and, only in that eventuality, the Society would be entitled to the benefit of a deemed approval. The Supreme Court in the said judgment held that the Society did not comply with the pre-conditions laid down under Section 10-A of the Act and therefore, there could not be a deemed approval. The Supreme Court while allowing the appeal had set aside the judgment of the High Court  and further directed the Society to comply with the pre-conditions and directed the Government to grant permission only after making an inspection and after  the  deficiencies pointed out by the Council had been removed. Since the students were admitted during the pendency of the litigation, the Supreme Court directed that if there was an order for the closure of the College, then appropriate orders for the absorption of the students in another college would be passed by the State Government. The aforesaid facts clearly reveals that the decision of the Supreme Court is distinguishable to the present facts of the case.

A lot of hue and cry was raised by the learned counsel for the respondent that the petitioner did not come to the Court with clean hands and had concealed material facts. It was urged that the petitioner did not indicate in the writ petition that the Central Government had refused to grant permission for admitting the students in the MBBS batch for the academic session 2005-06 and further did not indicate in the writ petition that a similar writ petition seeking similar relief was filed in the Supreme Court of India. The learned counsel submitted that by concealing material facts, the petitioner had mislead the Court in obtaining the interim orders and therefore, the Court should not exercise its discretionary jurisdiction under Article 226 of the Constitution of India since the equity is not in favour of the petitioner.

In The King Vs. General Commissioners  For The Purposes Of The Income Tax Acts For The District of Kensington (1917) 1 K.B. (Kings Bench Division) 487, it was held-

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived."

The  Supreme Court in S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and others, 2004(7) SCC 166 while reiterating the aforesaid principle, held-

"As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken."

The question to be considered as to whether the suppression of the aforesaid facts was a material one or not. In my opinion, it would have been appropriate for the petitioner to have stated those facts and placed the order of the Central Government dated 17.8.2005 on the record of the writ petition for the consideration of the Court but the non placement of the aforesaid facts did not amount to a suppression of a material fact. In my opinion, by not disclosing the said facts, the same did not have any effect on the merits of the case. The suppression of these facts was not fatal nor has brought the same within the ambit of indicting the petitioner for abusing the process of the Court. No doubt, it is the duty of a party seeking a relief to bring all material facts to the notice of the Court and the party could not be excused on the ground that he was unaware of the importance of a particular fact which he had omitted to bring forward. In the present case,I do not find that the petitioner had concealed a material fact or had obtained an interim order by concealment of material facts. Therefore, the submission of the learned counsel for the respondents, that the petitioner had concealed  material facts is erroneous.

On the other hand, the stand taken by the respondents in not conducting the examinations and not declaring the results of the examinations already conducted by them appears to be strange. It seems that the University is deliberately not conducting the examinations nor declaring the results. Initially, when the petition was filed the University itself announced a schedule for the holding of the examinations in four courses. During the pendency of the writ petition, the University took a somersault and submitted that the Medical College of the petitioner was no longer a recognised Medical College. Simultaneously, the respondents in paragraph No.68 of their counter affidavit submitted that the result of the BPT Examinations conducted by it, was under the process of finalisation and, would be declared soon. The University is, therefore taking a dual approach, may be, for vested reasons. The Court is not inclined to embark upon an enquiry on this aspect of the matter, as it feels that it is unnecessary and leaves the matter at that without any further  discussion.

There is another aspect. Admittedly, the petitioner Society is running three colleges, namely, the Medical College, the Dental College and the Physiotherapy College  after obtaining separate permission under Section 10-A of the Act from the Central Government for admitting the students in  various courses for different academic sessions.  Separate affiliation has also been issued by the  University. The refusal of the admission by the Central Government for the academic session 2005-06 is only for the MBBS batch of the Medical College. There is nothing to indicate that permission has been refused by the Central Government for the Dental Colleges or for the Physiotherapy College. Consequently, in so far as the BDS and BPT examinations are concerned, the same has no bearing with the order of the Central Government dated 17.8.2005 and the examination of these courses ought to have been conducted by the University. It has also come on record that the examination of BPT of certain batches was conducted between August to October, 2005. The respondents themselves admitted that the results would be declared but for reasons best known to the University, the results have not been declared so far. Consequently, the stand taken by the University does not appear to be bonafide.

In view of the aforesaid, this Court is of the opinion that the action of the respondents in not conducting the examinations, and not declaring the results of the examinations already conducted by the respondents, jeopardises the career of the students. The action of the respondents in not conducting the examinations is clearly arbitrary. The students cannot be left in the lurch. They have been validly given admissions by the College after it had received the necessary permission from the Central Government and affiliation from the University. Consequently, equity is in favour of the petitioner and is entitled to the relief claimed.

Consequently, both the writ petitions aress allowed and a mandamus is issued to the respondents commanding the University to declare the results of the following examinations:-

(1)MBBS 2nd Professional Main Examination (2002 Batch).

(2)MBBS Final  Professional (Part-I)  Main Examination (2001 Batch).

(3) MBBS Final  Professional (Part-II)  Main Examination (2000 Batch).

(4)MBBS 3rd Professional Main Examination (2002 Batch).

(5)BPT 1st Professional Supplementary Examination (2003 Batch).  

(6)BPT 2nd Professional Supplementary Examination (2002 Batch).

(7)BPT 3rd Professional Supplementary Examination (2000 Batch)

within three weeks from today after conducting oral and practical examinations and viva voce, if not conducted till date. The result of the supplementary examination, conducted as per the interim order of the Court shall also be declared within the same period.

Since the University was required to conduct and hold the examinations in the BPT course between September and October, 2005 and is overdue and time is running out, I further direct the University to announce the schedule for the holding of the examinations in-

(1)BPT 1st Professional Main Examination (2004 Batch)

(2)BPT 2nd  Professional Main Examination (2003 Batch)

(3)BPT 3rd  Professional Main Examination (2003 Batch)

(4)BPT 4th  Professional Main Examination (2001 Batch)

within two weeks from today and conduct the examinations and hold oral and practical examinations as well as viva voce, if any, and declare the results within four weeks thereafter.

In the circumstances of the case, parties will bear their own cost.

Dated:5.4.2006

AKJ.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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