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2005 DIGILAW 918 (RAJ)

Damodar Lal v. State of Rajasthan

2005-03-28

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard Learned Counsel for the parties. 2. This Court, after hearing at length, passed detailed order on 17.01.2005 and issued notice to the Medical Council of India (for short "MCI") so that the Court may examine the questions raised by the petitioners during the course of arguments and this Court found that the assistance of MCI will be needed. This Court ordered as under:- "To examine whether the bar put by the guidelines dated 14.07.2003 can be construed to mean total deprivation of the MBBS Course to all those persons who are handicapped as described in the second part of the guidelines issued by the Medical Council of India (quoted above) and which is provided at internal page No.7 of the guidelines dated 14.07.2003, leaving no scope for those disabled persons to take the MBBS Course for all purposes. It is also necessary to find out whether the guidelines has to be taken as taking a decision holding that the disabilities as mentioned therein shall make the candidates totally disabled to do any work after completion of MBBS Course, may it be teaching or may it be opting for a course which may be suitable despite that disability of the candidate etc." 3. The petitioners were directed to annex the copy of the order dated 17.01.2005 along with notice for MCI. Looking to the urgency of the matter, the petitioner was directed to serve MCI by speed post. The notices were served and learned Counsel Mr. R.S. Saluja put in appearance for MCI and sought time. 4. The MCI submitted detail reply running in more than 30 pages but it has been titled as short reply affidavit on behalf of respondent No. 3 MCI. The affidavit has been filed by Shri Ashok K. Harit, Deputy Secretary (Legal) of MCI. .5. R.S. Saluja put in appearance for MCI and sought time. 4. The MCI submitted detail reply running in more than 30 pages but it has been titled as short reply affidavit on behalf of respondent No. 3 MCI. The affidavit has been filed by Shri Ashok K. Harit, Deputy Secretary (Legal) of MCI. .5. It appears from the reply affidavit that with the help of number of Judgment s of Honble Apex Court, the MCI is seeking dismissal of the writ petition on the grounds that the recommendations framed by MCI are statutory in character, therefore, binding and mandatory on all concerned Universities and Colleges conducting medicine courses and the Rules and Regulations framed by the Universities in relation to conduct of medicine courses to the extent they are in consistent with the Act and the Regulations framed by the MCI, are repugnant by virtue of Article 254 of the Constitution of India. The view was affirmed by the Supreme Court in various Judgment s. The MCI took pains to find out the Judgment s cataloged here under:- .(1) State of Kerala vs. T.P. Roshna reported in 1979 SCC 580. .(2) MCI vs. State of Karnataka reported in 1998 (6) SCC 131 . .(3) Dr. Preeti Srivastava vs. State of M .P. & Ors., reported in 1999 (7) SCC 120 . .(4) State of Punjab vs. Dayanand Medical College reported in 2001(8) SCC 664 . .(5) State of Madhya Pradesh & Ors. vs. Gopal D. Tirthani & Ors. reported in 2003 (7) SCC 83 . 6. For the fixation of time schedule for admission process and for last date of admission in the medical courses, the MCI relied upon the Judgment of the Honble Supreme Court delivered in MCI vs. Madhu Singh reported in 2002 (7) SCC 258 and the MCI submitted that the Apex Court observed that the admission used to go on almost till the start of next academic year thereby causing serious prejudice to the purpose sought to be achieved under the provisions of the Act; for maintenance of highest standards of medical education. 7. The MCI relied upon the dictum of Apex Court wherein the argument of the petitioner against MCI was rejected that no prejudice would be caused to the medical education even if the admissions are not completed in time and the college can hold extra classes on holidays etc. 7. The MCI relied upon the dictum of Apex Court wherein the argument of the petitioner against MCI was rejected that no prejudice would be caused to the medical education even if the admissions are not completed in time and the college can hold extra classes on holidays etc. According to MCI, the MCI has framed the Schedule for admission for MBBS, postgraduate and super-speciality courses and following the decisions of the Honble Supreme Court. Therefore, the petitioners now cannot get any relief of admission in the course as the last date for admission was 30.09.2003. 8. The other ground of MCI is that the decision in question is a policy decision and has been taken after meeting and consultation with all the State Governments, Health Secretaries etc. and approval has been granted for time schedule for commencement and completion of admission in medicine courses. 9. The MCI in the reply affidavit submitted that "in continuation of discharging its responsibility to achieve this objective of completion of admission in time and commencement of the courses in time in all the medical colleges/institutions as has been directed by the Honble Court, the Council addressed another communication dated 27.08.2003 to all the Deans/Principals of the medical colleges, universities and State authorities bringing to their notice the above mentioned dates and also the observations made by the Honble Supreme Court on 14.08.2003 for completion of admissions for the academic session 2003-04 by keeping in mind the schedule approved by the Government of India. 10. According to MCI, some of the State Governments and the medical colleges had approached the Honble Supreme Court by filing applications/writ petitions praying for extension of time from 30.09.2003. These applications and/or writ petitions were considered and rejected by the orders dated 210.2003 and 210.2003 in I.A. No. of 2003 in CA No. 5166/2001 and WP Nos. 476, 478 and 484/2003. According to MCI, by the dismissal of these applications/writ/review petitions, the Honble Supreme Court rejected any plea of extension of time and, therefore, the process of admission is required to be completed within the time frame only. 11. The MCI further submitted as under:-"…….. 476, 478 and 484/2003. According to MCI, by the dismissal of these applications/writ/review petitions, the Honble Supreme Court rejected any plea of extension of time and, therefore, the process of admission is required to be completed within the time frame only. 11. The MCI further submitted as under:-"…….. the Honble Supreme Court in certain applications filed on behalf of unaided minority institutions seeking the relief of conducting a common entrance test through their own association for selection of students in the MBBS course for the academic year 2004-05, while referring the matter to a larger Bench and passing certain interim directions, once again emphasised that the time schedule fixed by the Medical Council of India should be strictly adhered to. The relevant observations in this order of the Honble Supreme Court is as under:-"……It is made clear that by way of these orders that we have passed today we do not intend in any fashion to relax the schedule which has been fixed by the Medical Council of India in accordance with the Madhu Singhs case……" 12. 28 pages and 34 paragraphs of the reply affidavit have been submitted only for the purpose of reminding this Court that the MCI has learnt a lesson from the dozen of cases decided by Honble Supreme Court that the time schedule is important and there cannot be any relaxation in time schedule. 13. This Court constrained to say that if the MCI could learn only that the time schedule is the only backbone of the education system and running the medical institutions, they should in the public interest reconsider it. The Apex Court emphasized that this is one of the component for maintaining high standards of education. It is not giving a free license to these authorities to deny the admission to a person who is qualified, eligible and can serve the nation for decades. If the plea taken by the MCI is accepted and this preliminary objection raised by MCI is allowed, then the writ petitions of meritorious students will be dismissed by the Courts every year for no fault of all those students and consequently, leaning courts favour to those persons who can delay the proceedings in the Court. If the plea taken by the MCI is accepted and this preliminary objection raised by MCI is allowed, then the writ petitions of meritorious students will be dismissed by the Courts every year for no fault of all those students and consequently, leaning courts favour to those persons who can delay the proceedings in the Court. In the matter where time plays important role, the duty upon not only the sufferer and the petitioner before the Court is more but at the same time, the duty of the respondents is equally important. Framing of time schedule for completion of process of admission to the education course is also one of the most important part of maintaining the high standards of education. But denying of admission to meritorious students and giving admission to a student having lesser merit will certainly lower down the standards of education. By getting the writ petition dismissed, instead of correcting the mistakes, if have been committed, what an expert body like MCI is going to get. The catena of Judgment s of Honble Supreme Court as well as various High Courts have shown their faith in the expert bodies and refused to interfere in the criteria which they laid down. The respect is for the functioning and not because of the title of the body or the name of the occupants. 14. It is true that the writ petition can be dismissed on the ground that the petitioners will not get the relief but when there is a question which requires consideration and for which the time has snatched opportunity, then the Court should also be required to be vigilant to see that the next in turn should also not be subjected to the same irreversible sufferings. So far personal relief of admission to course to a person may die but in some cases, cause may not die with the relief becoming infructuous to a person. This position applies in a matter of decision about the eligibility of a student to a course because in short or very short time, one after another student will be denied admission by following wrong procedure. The question arises is that who can keep the issue alive? Or whether in such situation, the Court should treat the issue alive in cases where personal or particular relief cannot be granted to the petitioners? .15. The question arises is that who can keep the issue alive? Or whether in such situation, the Court should treat the issue alive in cases where personal or particular relief cannot be granted to the petitioners? .15. The petitioners, who approached the Court in time and lost their relief due to time-limit and the other fellow likely to suffer because of same action of the respondents and new students cannot approach the Court because their petition shall be premature. The next student, if , will file the petition in time, what is the safeguard that he will not get same treatment as the present petitioners got. Therefore, the preliminary objection raised by the respondent MCI deserves to be rejected, hence rejected which has been raised on the ground that the petitioners cannot get the relief which the petitioners claimed in the writ petition and, therefore, the writ petition may be dismissed without examining the questions raised by the petitioner which may result into sufferings for large number of those students who have already been punished by the God as they are disabled persons. The petitioners are made or became disabled but have not been left to the mercy of persons who are disabled and are unable to explain the reasons for their decisions. There may be allegations of the disabilities of the justice imparting system and it may give the other persons to take advantage of .technicalities of law but that unfortunate situation cannot be claimed as of right. If the petitioners cannot get admission to the course despite finding that they should have been given admission, even then the petitioners are certainly entitled to seek relief of damages and are entitled to get the damages on proving their case which will certainly lesser relief than the relief claimed by the petitioners in the writ petition. 16. Maximum 4 pages having 9 paragraphs are the remaining paragraphs of the affidavits. Fortunately, the MCI could lay hand upon a Judgment of Apex Court as referred by the deponent on behalf of MCI in para 35 that the Honble Supreme Court laid down the law that 3% reservation under the Disabilities Act, 1995 is also applicable for admissions in the educational course and the universities and colleges are obliged to extend the benefit of the said reservation to the persons belonging the category of disabled person. How the benefits are available to the disabled persons under the Disabilities Act, 1955 has been give out in the affidavit and the MCI could also lay hand upon one Judgment of the Honble Supreme Court wherein it was directed to the parties concerned to represent to MCI for claiming relaxation from operation of its mandatory regulations and it appears from para 38 of the reply affidavit that subsequently the issue was considered by the General Body of the Council which resolved on 20.10.2003 and the resolution is Annexure 3/9. The deponent or the MCI failed to take note that if the grievance of even one student is genuine, they themselves can remedy it and it is not necessary that for that purpose, the students should be compelled to approach the Court. If the grievance of the persons like the petitioners reached to MCI, they should have looked into the matter and should have given a thought whether because of any mistake, a wrong decision has been taken or not and if decision is wrong, what they at their own level could have done. The MCI in 30 pages could not disclose the reason for the decision. .17. The MCI in the reply affidavit also submitted that in terms of the guidelines prescribed by it for admission to MBBS Course in physically handicapped category, it is only persons with the stipulated locomotory disability of lower limbs of the body who can be conferred the benefits of the reservations under the provisions of the Disabilities Act, 1995. According to MCI, the petitioners were asked to appear before the Medical Board constituted by the State of Rajasthan and/or Convener of Central UG. Admission Board to find out whether the petitioner is physically handicapped or not? and the petitioners were thereafter informed by the Board that they are not eligible for admission to the Medical and Veterinary courses against the physical handicapped quota. .18. That is all on merits. 19. The petitioners raised the question whether a student, who is handicapped is falling in the category of handicapped persons, can be denied admission to MBBS Course by prescribing a condition which has no nexus or relation with the object of prescribing conditions or for denying the benefits. .18. That is all on merits. 19. The petitioners raised the question whether a student, who is handicapped is falling in the category of handicapped persons, can be denied admission to MBBS Course by prescribing a condition which has no nexus or relation with the object of prescribing conditions or for denying the benefits. The petitioners merely wanted to know that because of their disability, they can be denied to take MBBS course despite the fact that they may do all those jobs or works which are permissible to MBBS graduates and disability by no stretch of imagination can come in their way. If their disability is not coming in the way of their doing the job which a MBBS graduate can do, then whether the power vests with MCI to prevent the petitioners from taking MBBS course? 20. This Court took note of the appeal of the petitioners and conveyed it to the MCI and notices were issued for the purpose of finding out whether there is any object behind denying the benefit of reservation to the disabled persons like the petitioners or not but despite keeping at least a post of Deputy Secretary (Legal) for MCI, they could not even read the order of this Court not running in 30 pages like the affidavit of MCI and the MCI could not read a para from the order of this Court dated 17.01.2005. If they read, they could not follow and if they followed, then the position is more grave, they did not reply deliberately. 21. This Court failed to gather anything what MCI could have got by getting dismissal of the writ petition from this Court on the grounds as raised by the MCI . The petitioners have already suffered. If the petitioners have a good case, whether all disabled persons should also suffer? It appears that the legal experts at MCI are under impression that where time limit is there, no one can ask for reasons for the decision or may be under impression that any decision can be termed as policy decision and also under impression that policy decision cannot be looked into by any Court. 22. It appears that the legal experts at MCI are under impression that where time limit is there, no one can ask for reasons for the decision or may be under impression that any decision can be termed as policy decision and also under impression that policy decision cannot be looked into by any Court. 22. The MCI could have come before this Court with a brief reply disclosing the reasons for denying the benefit of reservation to the disabled persons like the petitioners which would have served the larger interest of the public and this Court could have declared that unfortunate persons like the petitioners because of their disability, cannot become the doctor. The MCI did not avail this opportunity of having a seal of this Court (certainly not needed in each and every case) but for the reasons best known to them, they could not give any reason. 23. All above has been said so that now anyone who feels some responsibility in MCI should think twice whether winning a case in the Court of law is important or thinking or rethinking process and taking a right decision and if mistake has been committed, the correction is to be done is having more weight for them. 24. In view of the above, the preliminary objections raised by MCI are dismissed. If the petitioners will make out a case for any relief and this Court will find that the Court cannot grant relief of admission to the petitioners to MBBS course, this Court will proceed to decide what relief including damages can be granted to the petitioner from the respondents including from the MCI and from the deponent who submitted the affidavit on behalf of MCI and who did not answer the question raised by the petitioners and for which this Court issued notice to MCI. However, a last opportunity is granted to MCI to submit reply affidavit to make the position clear now.