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Allahabad High Court · body

2018 DIGILAW 1542 (ALL)

Yogender Yadav v. Union of India

2018-07-12

MUKHTAR AHMAD, PANKAJ MITHAL

body2018
JUDGMENT : 1. All the above three petitions have been preferred by the Students of MBBS course 2015-16 of the K.D. Medical College Hospital and Research Center, Mathura against the order dated 22.11.2016 of the Assistant Secretary, Medical Council of India (in short MCI) by which directions have been issued to the Deen/Principal of the above Medical College to discharge all the students admitted for the Academic Year 2015-16. 2. The aforesaid order was not served upon the petitioners by the MCI and they allege to have acquired knowledge of the said order in July 2017 when the Medical College started causing hindrance in their continuous studies. The order was actually served upon the petitioners sometime in August 2017 specifically on 11.8.2017 by which time the petitioners have passed out the first year course and were perusing the studies of the second year course. 3. In the first writ petition 89 students have challenged the above order. In the second writ petition only one student has come forward to challenge it whereas in the third writ petition as many as 5 have joined together to challenge the above order. Thus, in all 95 students out of 150 students admitted in MBBS course 2015-16 in the aforesaid Medical College have challenged the order dated 22.11.2016 of the MCI. 4. The MCI by the impugned order has directed to discharge the students basically on the following three counts; (1) that the admission were made on 5th October, 2015 after the cut of date of 13th September, 2015; (2) the candidates were charged notional fee or they have failed to deposit the requite fee at the time of admission meaning thereby that the admissions were unusual and may be by charging capitation fee; and (3) admissions were made from the waiting list and not in order of merit. 5. We have heard Sri. Shashi Nandan, Senior counsel assisted by Sri. Anoop Trivedi and Sri. Manu Khare for the petitioners; Sri. Tej Prakash for the Union of India; Learned Standing counsel for the State of U.P; Sri. Amit Jaiswal for K.D. Medical College, Hospital and Research Center, Mathura; Sri. Avinash Mishra for the MCI; Sri. Mahendra Pratap for Director General Medical Education and Training U.P.; Sri. Vivek Verma for Dr. B.R. Ambedkar University, Agra; and Sri. Amit Mahajan for Unaided Medical College Welfare Association (in short UPCMET-2015). 6. Amit Jaiswal for K.D. Medical College, Hospital and Research Center, Mathura; Sri. Avinash Mishra for the MCI; Sri. Mahendra Pratap for Director General Medical Education and Training U.P.; Sri. Vivek Verma for Dr. B.R. Ambedkar University, Agra; and Sri. Amit Mahajan for Unaided Medical College Welfare Association (in short UPCMET-2015). 6. Learned counsel for the parties agreed for final disposal of all the three petitions on the basis of pleadings exchanged in the second and third petition as the facts in all the petitions are common and the challenge is also to a common order on identical grounds. 7. The petitioners contend that all 150 of them were admitted in the MBBS course 2015-16 of the Medical College in accordance with law as per the directions of the Supreme court and the Ministry of Health and Family Welfare, New Delhi (in short Ministry) on or before 30th September, 2015 after due counseling and allotment/allocation letters issued to them by the UPCMET responsible for conducting the counseling and as such there is no illegality in the process of their admission. They are all bona fide students who are pursuing their courses after paying the requisite fee. The order impugned has been passed affecting their career without giving any notice or opportunity of hearing and that the order fails to point out the exact Rule or any Regulation which may have been violated in admitting the petitioners in the said course. The passing of the impugned order after 14 months of their admissions is wholly illegal, unjustified and is without jurisdiction. 8. The petitions have been contested mainly by the MCI represented by Sri. Avinash Mishra, as the order impugned is of the MCI. The Director General, Medical Education and Training, U.P. has also supported the MCI. The counsel for the Union of India, learned Standing counsel of the State of U.P, and counsel for Dr. B.R. Ambedkar University, Agra have remained neutral. The counsel for the Medical College and UP CMET have supported the students. 9. In addressing the above controversy it is relevant to narrate the events in a chronological order. 10. One Rajeev Memorial Academic Welfare Society on 29.8.2014 applied for the establishment of Medical College in terms of Indian Medical Council Act, 1956 w.e.f. the Academic Year 2015-16 with the total intake of 150 students annually. 9. In addressing the above controversy it is relevant to narrate the events in a chronological order. 10. One Rajeev Memorial Academic Welfare Society on 29.8.2014 applied for the establishment of Medical College in terms of Indian Medical Council Act, 1956 w.e.f. the Academic Year 2015-16 with the total intake of 150 students annually. The Ministry vide order dated 15.6.2015 refused to grant permission for the establishment of the said medical college. The said order was challenged before the Delhi High Court by means of a writ petition which was allowed on 26.8.2015. The order of refusal dated 15.6.2015 was quashed with the direction to the MCI to make a fresh inspection before considering the matter of grant of permission of the establishment of the Medical College. This order of the Delhi High Court was challenged before the Supreme Court in Civil Appeals Nos. 7953-7954 of 2015. Both the appeals were allowed vide judgment and order dated 24.9.2015 directing the Ministry to grant letter of permission to the college with the annual intake of 150 students for the Academic Year 2015-16. 11. The operative portion of the order of the Supreme Court is reproduced herein below:- "The Government of India is directed to pass appropriate orders granting permission to the appellant/Society in respect of the college in question for the academic year 2015-16 within a period of two days, having regard to the fact that the last date for conducting the admissions is 30th September, 2015. The College is also permitted to admit the students in accordance with law" Sd/- (A.K. Sikri) Sd/- (Rohinton Fali Nariman) 12. On the basis of the above order of the supreme Court the Ministry issued a letter dated 28.9.2015 granting permission for establishment of the above Medical College with the total intake of 150 students w.e.f., the Academic Year 2015-16. 13. As observed in the above order of the supreme Court since the last date of admission was approaching, the counselling body ie. UPCMET-2015 through paper publication dated 27.9.2015 invited successful candidates of the main/waiting list ie. those who have qualified the U.P. Combined Medical Entrance test 2015. special counselling to be held on 28th and 29th October, 2015. 14. It is pertinent to mention here that all the petitioners have qualified the U.P. Combined Medical Entrance Test 2015 (UP CMET-2015) held on 30.5.2015. 15. those who have qualified the U.P. Combined Medical Entrance test 2015. special counselling to be held on 28th and 29th October, 2015. 14. It is pertinent to mention here that all the petitioners have qualified the U.P. Combined Medical Entrance Test 2015 (UP CMET-2015) held on 30.5.2015. 15. In pursuance to the above, the petitioners participated in the counselling and were issued letters of allotment by the UP CMET on 29th September, 2015 allocating the above Medical College for admission to the MBBS course. The petitioners as directed reported to the College on 30.9.2015 with original documents and deposited full/part fee for admission with the condition to deposit the balance fee within the time allowed. The petitioners thereafter participated their first MBBS course and even appeared in the University examination held in October, 2016. They qualified the first year examination of the MBBS course. 16. In the meanwhile the MCI had proceeded against the Medical College and on the basis of the Monitory Sub Committee Report and the approval of the Executive Committee proceeded to pass the impugned order probably after notice to the Medical College but without any information and notice to the petitioners. 17. On the basis of the respective arguments of the parties and the reasons contained in the impugned order only three points arise for our consideration namely; (1) whether admissions were beyond time; (2) whether the admissions were not in accordance with law; and (3) would stand vitiated for non deposit of the full fees at the time of admission. 18. According to the impugned order and the submission of learned counsel for the MCI, the admissions were made on 5th October, 2015 whereas no admissions were permitted after 30th September. This finding has been returned on the basis of the list of allotted candidates produced by the U.P. CMET. 19. In view of the time schedule for completion of the admission process for the first MBBS course as laid down by the Apex Court in the case of Priya Gupta v. State of Chhattisgarh and others (2012) 7 SCC 433 : ( AIR 2012 SC 2413 ) there is no dispute that admissions to the under graduate courses of Medical Colleges are not permissible after 30th September, 2015. Thus, in the instant case we have to see whether the admissions of the petitioners in the College concerned were within the said date or not. Thus, in the instant case we have to see whether the admissions of the petitioners in the College concerned were within the said date or not. 20. The impugned order of the MCI indicates that the petitioners were issued letters of allotment of the Medical College on 29th September, 2015. This has been accepted by the UP CMET in its counter as well. The petitioners in pursuance thereof reported and got admissions on 30.9.2015 and deposited fee/part fee. The date of deposit of the fee/part fee also indicates that it was done on 30th September, 2015. The College on the production of the allotment letters by the petitioners gave them admissions without waiting for the final list of allotment to be issued by UP CMET which was issued on 5th October, 2015. It is not the case of the MCI that admissions could have been made only on the issuance of the final list of allotment. No law or statutory provision have been in this regard was shown to us. The issuance of the said allotment list in no way establishes that the admissions were made on the issuance of the said list on 15th October, 2015 or thereafter when the issuance of allotment letter to individual petitioners on 29.9.2015 and the deposit of fee/part fee on the said date is not denied. Thus, there is no basis for MCI to hold that the admissions of the petitioners were made after the cut of date. 21. The above conclusion drawn by us also stands fortified by the stand taken by the UP CMET in its counter affidavit filed in one of the writ petition No. 47265 of 2017 which states that the entrance examination for the Academic Year 2015-16 was held on 30th May, 2015 and the result was declared on 5th June, 2015. A list of all successful candidates was drawn in two parts; a main list; and a waiting list. The first counselling was done on 21st, June 2105 and second on 26th July, 2015. In compliance with the direction of the High Court in a writ petition a special counselling was held on 23rd September, 2015. Again on the directions of the Supreme Court a special counselling was organized for admissions in the Medical College on 28th September, 2015 and 29th September, 2015 after issuing notice and advertisement in the newspapers. 22. In compliance with the direction of the High Court in a writ petition a special counselling was held on 23rd September, 2015. Again on the directions of the Supreme Court a special counselling was organized for admissions in the Medical College on 28th September, 2015 and 29th September, 2015 after issuing notice and advertisement in the newspapers. 22. On the basis of the said counselling allocation letters were issued to the candidates for admission in the Medical College with specific direction to take admission latest by 30th September, 2015 failing which allotment will stand cancelled and the seat shall be treated as vacant. The allotment process was completed on 29th September, 2015 and admissions were completed on 30th September, 2015 in regard to which a list of reported/admitted candidates was issued by the Medical College on 30th September, 2015 and was sent to it. 23. The MCI vide letter dated 22nd September, 2015 required the list of all admitted students to be uploaded/sent to the MCI by all Medical Colleges latest by 7th October, 2015. As the last date for submission of the list was 7th October 2015, the UP CMET prepared the list on 5th October, 2015 and forwarded the same. The date of preparation of the said list is not the date of admission of students. 24. The stand of the UP CMET clearly establishes that the date of admission is different from the date of preparation of the list of the admitted students. The students as per the letter of allocation issued to each of them took admissions earlier on 30th September, 2015 and not thereafter or on 5th October, 2015. 25. Accordingly, it cannot be said that the petitioners were admitted in the Medical College after the cut of date prescribed. 26. Learned counsel for the MCI as well as Director General Medical Education and Training U.P.; were unable to point out a single case of the petitioners who was not admitted in accordance with the merit. The impugned order also does not spells out any candidate who has been admitted out of turn or ignoring the merit list. This apart, the preparation of the merit list is not in the hands of the Medical College that grants admission. It depends upon the counselling body ie. the UP CMET, to issue the merit list and to ensure allocations accordingly. This apart, the preparation of the merit list is not in the hands of the Medical College that grants admission. It depends upon the counselling body ie. the UP CMET, to issue the merit list and to ensure allocations accordingly. The Medical College has only acted on the basis of the allocation letters issued to the petitioners by the UP CMET in the matter of grant of admissions to them presuming that the allocation letters must have been issued as per merit of the successful candidates. Thus, the contention that the petitioners were not admitted in accordance with the merit has no substance. 27. It may be pertinent to mention here that if some admissions were made ignoring the merit, it does not mean that all admissions are illegal or not according to merit. Only admissions of those candidates who were not admitted as per the merit could alone would have been discharged if at all but the MCI without finding found out those candidates had passed a sweeping order cancelling the admission of all the 150 candidates which cannot be sustained in any way. 28. Lastly, coming to the effect of non deposit of the entire fee at the time of admission, we are of the opinion that this would not vitiate the admission. The Medical College could not charge higher fee than prescribed but there is no bar in law to admit students on lower fees. There is no compulsion even to realize the entire fees at the time of admission. No such provision has been shown to us to establish that the entire fee has to be realized at the time of admission and its non realization would vitiate the admission. 29. If we consider the matter in the background of the case as the permission to establish the Medical College was granted vide order of the Supreme Court dated 24.9.2015 and a formal letter of permission was issued by the Ministry on 28.9.2015 there was hardly any time for any student to arrange for payment of the entire annual fee within the short time of two days as the admissions were to close on 30.9.2015. It was in these circumstances it appears that the Medical College permitted the students to deposit the amount of fee available with them with the condition to deposit the balance subsequently. 30. It was in these circumstances it appears that the Medical College permitted the students to deposit the amount of fee available with them with the condition to deposit the balance subsequently. 30. The aforesaid act of the Medical College or of part deposit of fee by the students for the purpose of admission does not in any way lead to an inference that the Medical college had charged capitation fees. 31. In the absence of any direct material to establish that all admissions were made by capitation fee, it is not tenable in law to cancel or discharge all the petitions on this score. 32. We do not find that the petitioners were admitted in an unfair or illegal manner. They have been admitted in transparent way by following the procedure laid down. 33. The last but not the least we do not find any material on record or any averment in the impugned order which may indicate or establish that any notice or opportunity of hearing was given to the petitioners before passing the impugned order. The impugned order by all means adversely affects the right of the petitioners to continue with their medical course and as such is detriment to their career. Such a detrimental order having civil consequence could not have been passed without following the principles of natural justice. The mere fact that the Medical College may have been given notice or opportunity of hearing would not be sufficient to accord hearing to the petitioners who are the real affected party. 34. In view of the aforesaid facts and circumstances, we are of the opinion that the order dated 22.11.2016 passed by the Assistant Secretary, MCI cannot be sustained in law. A writ of certiorari is accordingly issued quashing the same. 35. The writ petition are allowed with no orders as to costs.