High Court of Punjab and HaryanaCOCP/173/2015disposed of

Sonal Gaur And ANR v. Husan Lal And ORS

2016-05-12Mr. Justice R.P. Nagrath19 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision:12.05.2016 1.

COCP No. 173 of 2015 Sonal Gaur & another

...Petitioners

Versus

Husan Lal & others

...Respondents

CWP No. 20245 of 2015 Mohinder Singh and others

...Petitioners

Versus

Union of India & others

...Respondents

CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

Present:

Mr. M.L. Saggar, Sr. Advocate with Mr. V.M. Gupta, Advocate for the petitioner in COCP No. 173 of 2015.

Mr. P.K. Ganga, Advocate for the petitioners in CWP No. 20245 of 2015. Mr. Gurminder Singh, Sr. Advocate, with Ms. Sinvangi Sharma, Advocate, for MCI.

Mr. Arjun Partap Atma Ram, Advocate, for BFUHS. Mr. Nitin Kaushal, Advocate, for respondent No.3.

Mr. Sourabh Goel, Advocate for respondent No.4.

Mr. V.Ramswaroop, Addl. A.G.,Punjab ***** Rakesh Kumar Jain, J.(ORAL) This order shall dispose of two petitions, namely, COCP No. 173 of 2015 titled Sonal Gaur and another vs. Husan

-2Lal and others and CWP No. 20245 of 2015 titled "Mohinder Singh and others vs. Union of India and others". 2.

The Contempt Petition No. 173 of 2015 has been filed for non-compliance of order dated 16.9.2014, passed by this Court in CWP No. 2028 of 2014 titled Ms. Jagat Deep Kaur & Ors. Vs. State of Punjab & Ors., which was filed by the students of 4th year of the MBBS Course of Chintpurni Medical College, Pathankot who were otherwise the students of the 1st Batch of Academic session of 2011-12. They prayed to the State authorities and the MCI to shift them to some other Medical College duly approved by the State of Punjab because of some problems in the matter of renewal of permission to admit the students which the College would face for the succeeding sessions.

Shorn of unnecessary details, the said Writ Petition was disposed of by this Court with the following observationscum-directions :- "VII. The way forward

-3of the MCI and gather its own details and share the information of the Central Government with its own recommendations. The Central Government has an important role to play in the matter of permission for establishment of a new college and new course of study under Section 10A. In this case, after establishment of the college, if facilities have floundered and the Medical Council of India also recommends that it will not possible to allow for the students to carry on with the course, then the Central Government will take an appropriate decision on the information secured from the State Government and the Medical Council of India and grant such permission to the State Government setting out the manner of how the State could take over the responsibility on behalf of the students.

The State will decide from its own sources as well as from the information furnished by the MCI whether it will take over the college and run the course or transfer the students and ensure that no rules by the existing colleges are breached as regards their own intake capacity. The mandate shall therefore be: State Government will secure the data as regards the recommendations of the Medical Council of India, the stand of the college for the existing batch of 4th year students and make its own report and forward the same to the Central Government within a period of eight weeks. The Central Government will take appropriate decision and the further course of action will depend on the outcome of the Central Government's decision in the light of the reports received by it.

-4government may impress upon the urgency involved for such a decision and help complete the whole exercise within 12 weeks. VIII Parting thoughts for students and college."

The decision dated 16.9.2014, rendered in the aforesaid writ petition became final between the parties. However, since the order passed by this Court was not being complied with by the State Government or the MCI, therefore, the present Contempt Petition was filed in which at one point of time, an order dated 29.1.2016 was passed to the following effect :- "Repeated time has been sought by MCI. In the instant matter which is likely to impact the lives and careers of the students. No positive decision has been brought to the notice of the Court despite time being granted on several occasions. MCI cannot be permitted to take such matters so lightly. However, purely in the interest of justice, last opportunity is granted to MCI, subject to payment of Rs. 1 lac as costs, which shall be deposited before the Mediation and Conciliation Centre of this Court well before the date fixed.

List again on 15.2.2016."

The aforesaid order was followed by a detailed order dated 15.2.2016, which is also reproduced as under :- "C.M. No.3656 of 2016 Allowed as prayed for.

C.M. No.3655-CII of 2016 One of the prayers made in this application is for the waiver of the costs of Rs.1 lac imposed vide order dated 29.1.2016.

-5The Court may give in detail the reasons as to why these costs were imposed on the Medical Council of India and also the reason as to why it cannot be waived of.

This matter has been pending for some time. The dispute which has been raised broadly in the petition pertains to the career of a number of students who were granted admission in the Chintpurni Medical College, Pathankot. Facts as briefly set out, are that 150 students were admitted for the session 2011-2012 (hereinafter referred to as the Ist Batch). The Medical Council of India through its functionaries had inspected the College to ascertain the infrastructure and its eligibility to admit the students. No issue was raised regarding admission of the Ist batch, but for the subsequent years, however, permission was not granted by the Medical Council of India as it noticed numerous deficiencies in the College in the academic years 2012-2013. An attempt was made to admit the 4 th batch.

The Medical Council of India once again denied permission as it had done in the previous years as well. It is pertinent to note here that after the denial of the permission for the years 2012-13, the College had filed C.W.P. No.12368 of 2012 where directions were given to the Medical Council of India, to once again carry out inspection to ascertain the deficiencies particularly in the wake of the assertion of the college that no such deficiency existed and the fact that the college was complying with the norms in all respects. The matter was carried in an appeal before the L.P.A. Bench which re-affirmed the orders of the learned Single Judge and directions were given to the Medical Council of India to ascertain the deficiencies.

-6of India on 24.4.2014 and no permission was granted. The College then went up in a petition before the Delhi High Court questioning the decision of the Medical Council of India declining permission to them for the batch of 2015-16. The Delhi High Court declined to interfere and even passed serious remarks against the College. The matter was taken up before the Hon'ble Supreme Court where permission was granted to the College to admit students for the year 2014-15 subject to the inspection and furnishing of bank guarantee of Rs.9.5 crores.

The relevant portion of the said order may be extracted here below :- "Looking at the peculiar facts of the case and the circumstances stated hereinabove, we direct the petitioners to file undertakings by President/Chairman and Secretary of the petitioner's institutions running medical colleges within 10 days from today, to the effect that there is no defect in the medical colleges run by them and they would also state that their deposit with the MCI, which is around Rs.10 crores, be forfeited by way of penalty if the statement made in the undertaking is found to be incorrect at the time of the next inspection. A draft undertaking has been given to this Court.

A copy of the undertaking, which might be filed by the institutions, shall be served upon the office of the Medical Council of India as well as to the Ministry of Health and Family Welfare, Govt. of India, New Delhi.

-7given by their office bearer as a special case. Notwithstanding any direction given in the case of Priya Gupta (supra), if undertaking as stated hereinabove are filed by the institutions managing medical colleges for the academic year 2014-15, admissions shall be given to the students from the merit list prepared by the States and they shall be charged fees prescribed by the Government Medical Colleges of their respective States. The State Authorities, i.e. the Directorate of Medical Education & Research, of the respective States shall send students, in order of their merit, to the medical colleges run by the petitioners, which are situated within their States, within one week from the date of receipt of a copy of this order and the said students shall be admitted to the MBBS Course in accordance with the rules and regulations of the MCI and also regulations dated 16.4.2010 framed by the Medical Council of India, provided undertakings as mentioned above are filed on behalf of the concerned institutions.

It is also clarified that there would be no further counseling in respect of the students who are to be given admission, even if it might result into some heart burning among other students, but in the peculiar facts of the case, we given this direction.

In no case, the admission shall be given after 30 th September, 2014. This order shall also apply to all the institutions which had filed their petitions earlier for renewal of their recognition for the academic year 201415, but their petitions were rejected or withdrawn for whatever reason, provided undertaking as stated hereinabove are filed by the President/Chairman and the Secretary of those institutions. All those petitions shall be deemed to have been revived and this order shall be

-8deemed to have been passed in those cases also. This order shall only be in respect of renewal of recognition and not for creation of additional seats or for new colleges. We also record that the Union of India has supported the petitioners in the interest of students. We also direct the Union of India to give wide publicity to this order in print as well as electronic media in the interest of the concerned students.

It is directed that the list of students getting admission in pursuance of this order shall be placed on record of this Court by Ist October, 2014 by the concerned institutions and a copy thereof shall also be sent to the MCI.

These matters shall be treated as part-heard and shall be notified for further hearing in the month of December, 2014."

It is not in dispute that the students were indeed admitted to the College.

The petitioners have filed this contempt petition alleging violation of the order passed in C.W.P. No.2028 of 2014 which directions may also be extracted here below :- "VII. The way forward

13. However, if there arises a situation that even for the existing batch of students, the college cannot continue, it should be left to the authorities to decide the issue in the manner which is contemplated under the regulations. Even while disposing of the petition seeking for transfer of the students, I would direct the State Government to undertake a communication with the Central Government by forwarding the recommendations of the MCI and gather its own details and share the information of the Central Government with its own recommendations. The Central Government has an important role to play in the matter of permission for establishment of a new college and new course of study under Section 10A. In this case, after establishment of the college, if facilities have floundered and the Medical Council of India also recommends that it will not possible to allow for the students to carry on with the course, then the Central Government will take an

-9appropriate decision on the information secured from the State Government and the Medical Council of India and grant such permission to the State Government setting out the manner of how the State could take over the responsibility on behalf of the students. The State will decide from its own sources as well as from the information furnished by the MCI whether it will take over the college and run the course or transfer the students and ensure that no rules by the existing colleges are breached as regards their own intake capacity.

The mandate shall therefore be : State Government will secure the data as regards the recommendations of the Medical Council of India, the stand of the collage for the existing batch of the 4th year students and make its own report and forward the same to the Central Government within a period of eight weeks. The Central Government will take appropriate decision and the further course of action will depend on the outcome of the Central Government's decision in the light of the reports received by it. I am unable to set any time limit for the Central Government since it is not made a party but the State Government may impress upon the urgency involved for such a decision and help complete the whole exercise within 12 weeks. VIII. Parting thoughts for students and college."

Notice was issued in these proceedings and a number of orders were passed. During the course of proceedings, the Court concerned with the career of the students involved, questioned the State as to whether these students who had been admitted, could be shifted in government colleges elsewhere in the State particularly when the petitioners relied upon Annexure P-2, a letter written by the Vice Chancellor of the Baba Farid University of Health Sciences suggesting that keeping in view the studies of the students, they may be distributed to other colleges after adopting due procedure, i.e. taking permission from the Government of Punjab and the Medical Council of India/Government of India. For the purpose of reference, the relevant portion of the said letter is extracted here below : "The first batch admitted in the college in the year 2011 has reached the final professional course due to the fact

-10that there are no admissions in the college after the year 2011 and there is a gap of three years, the college is grossly deficient of teaching of students. There is very insufficient faculty to teach the very important subjects like EYE, ENT, pediatric, SPM, medicine and surgery. There is also acute shortage of clinical material, hardly any indoor admission and no obst. And Gynae work.

In view of the above and keeping in view the study and training of the students studying in the college it is suggested that students must be distributed in other colleges after adopting the due procedure i.e. University needs the permission of Govt. of Punjab and Medical Council of India/Government of India."

The State Government then wrote to the Medical Council of India on 31.8.2015 giving particulars and the names of the colleges where the students could be adjusted. The relevant extract of the chart as given, may be extracted here below :- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sr.No. Name of Institute Intake No. of students No. of students Capacity going proposed to be (2015) to appear in shifted.

final year exam.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1.

Govt.Medical College, Patiala.

Govt.Medical College, Amritsar 3.

Guru Govind Singh Medical College, 100 Faridkot.

Christian Medical College and Hospital, Ludhiana.

Dayanand Medical College and Hospital, Ludhiana.

Gian Sagar Medical College Ramnagar Banur, Distt.Patiala.

Sri Guru Ramdas Institute of Medical 150 Sciences, Amritsar.

Adesh Institute of Medical Sciences, Bhatinda.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Along with the aforesaid chart, names of the students who had to be adjusted in terms of the aforesaid, were also given.

-11While taking this document on record, this Court passed an order dated 3.9.2015 asking the Medical Council of India to take a decision in this regard before the next date of hearing. The case was then adjourned to 14.9.2015, 29.9.2015, 13.10.2015, 21.10.2015, 29.1.2016 and on 29.1.2016, this Court recorded its displeasure as the Medical Council of India failed to give any information to the Court in this regard inviting an order imposing costs of Rs.1 lac upon it. It is then that the present application has been filed seeking recall of this order as also trying to justify the fact that the Medical Council of India is not involved in the issue at all and the mandate of the Writ Court was only to the State Government and not the Medical Council of India, so as to warrant imposition of costs by this Court. A prayer has been made specifically that the stand of the Medical Council of India was also on record of the proceedings and hence no fresh response was required.

After consideration of the submissions made by the learned counsel for the Medical Council of India seeking recall of the order dated 29.1.2016, I am of the opinion that there will be no occasion to waive of the costs keeping in view the fact that the Medical Council of India failed to respond to the communication of the State dated 31.8.2015 which was specifically put to them vide this Court's order dated 3.9.2015 and repeated opportunities were given to it to come out with a clear stand. The Medical Council of India was very well within its rights to assert that it is not competent to accede to the request/suggestions made by the State Government, but under no circumstances it can be permitted to hold up the Court proceedings which it had done since 3.9.2015 till today.

It is only after imposition of costs that the Medical Council of India has cared even to file a specific response to the queries of the Court and that too, with a prayer that the costs be waived of. Finding no justification in the Medical Council of India holding up the Court process for such an inordinate long period on an issue which pertains to the career of the students, I find absolutely no reason to waive of the costs and recall the order dated 29.1.2016. The prayer is rejected.

C.M.No.3655-CII of 2016 is dismissed.

C.MI.

-12C.O.C.P. No.173 of 2015 All the decisions that the Medical Council of India has referred to, pertain to the erstwhile suggestions given by the State which at best, can be termed to be vague considering that a general proposal was submitted to the Medical Council of India for shifting the students in principle. At no point of time, the State ever came out with specific proposal giving out the names of the colleges where the students can be accommodated in other colleges of the State.

Whether a decision has to be taken by the Medical Council of India or at the level of the Central Government, the decision ought to have been taken and Court informed appropriately but the students cannot be left in a lurch.

Confronted with the situation, learned counsel for the Medical Council of India states that they would respond positively to the suggestion made by the State vide its letter dated 31.8.2015 within three weeks. It will be the duty of the Medical Council of India to take up this issue with the Central Government as well and take a conscious decision in this regard. List for further proceedings on 10.3.2016."

It is pertinent to mention that appeal filed by MCI against the orders dated 29.1.2016 and 15.2.2016 bearing SLP No. 6832-6833 of 2016 was dismissed by the Supreme Court on 10.3.2016. However, the SLP (CC) No. 5976 of 2016 filed by the Chintpurni Medical College and Hospital was withdrawn by the College but stay was granted by the Apex Court till 4.4.2016 in regard to the shifting of the students. Thereafter the Chintpurni Medical College and Hospital filed CWP No. 6348 of 2016 titled The Chintpurni Medical College vs. Union of India & Ors., which was dismissed by this Court vide order dated 7.4.2016 allowing the Stay to continue till 12.4.2016 against the order dated 7.4.2016. The Chintpurni Medical College and Hospital

-13filed SLP (C) No. 10129 of 2016 titled the Chintpurni Medical College and Hospital vs. Union of India and others, which is though pending as notice has not been issued so far. 7.

It is also pertinent to mention that a Writ Petition (Civil) No. 273 of 2016 titled Swarn Salalria vs. Union of India and Anr. has already been filed, in which allegations have been made against MCI for not granting the recognition to the Chintpurni Medical College and Hospital, to which notice has been issued on 9.5.2016. The second petition was filed by 10 students of the Chintpurni Medical College against the order dated 31.8.2015 in which notice has been issued. Actually, the proposal dated 31.8.2015 was accepted by the MCI and sent to the Central Government for necessary action and the said approval by the MCI, accepting the proposal dated 31.8.2015 was allegedly having no basis in respect of 141 students. 8.

During the course of hearing, counsel for the parties agreed that the shifting of the students should be based upon some criteria. Consequently, on 6.5.2016 counsel for the respondents were directed orally to produce the criteria for the purpose of shifting of the 150 students.

Today, Mr. Harsimran Singh Sethi, learned Addl. A.G., Punjab has produced the Minutes of the proceedings carried out on 10.05.2016. As per which all the 150 students have been shifted after their counselling on the basis of their merit-cum-

-14availability of the seats. The Minutes recorded on 10.05.2016 is reproduced as under :- "BABA FARID UNIVERSITY OF HEALTH SCIENCES, FARIDKOT Minutes of the Counseling regarding re-shirting of MBBS students of Ist batch (2011-12) from Chintpurni Medical Collage, Pathankot, Punjab to other recognized Medical Collages of State of Punjab in compliance to orders dated 06.05.2016 of Hon'ble Punjab & Haryana High Court, Chandigarh, in COCP no. 173 of 2015 on 10.05.2016 (Tuesday) at 10.00 a m in Auditorium, Guru Gobind Singh Medical College, Faridkot.

The following members were present in the meeting : 1.

Dr. D.S. Sidhu, Registrar, BFUHS, Faridkot Chairman 2.

Dr. Jatinder Singh, Rep. of Principal, Govt. Medical Collage, Amritsar Member 3.

Dr. Akashdeep Aggarwal, Rep. of Principal, Govt. Medical Collage, Patiala Member 4.

Dr. Gurmit Kaur Sethi, Principal, GGS Medical Collage, Faridkot Member 5.

Dr. B.S. Khurana, Rep. of Principal, SGRD Institute of Medical Sciences & Research, Amritsar Member 6.

Dr. Raju Singh Chinna, Rep. of Principal, Dayanand Medical Collage, Ludhiana Member 7.

Dr. B.P. Gupta, Representative, Principal, Gian Sagar Medical Collage, Banur Member 8.

Dr. Anjali Jain, Rep. of Principal, Christian Medical College, Bathinda Member 9.

Dr. Rajiv Mahajan,Rep. Of Principal, Adesh Medical College, Bathinda Member 10.

Dr. S.P. Singh, Controller of Examination, BFUHS, Faridkot Member 11.

Dr. Deepak John Bhatti, Sub-Dean (Colleges), BHUHS, Faridkot Member Principal/Rep. Of Chintpurni Medical Collage, Pathankot did not attend the counseling.

The COCP no. 173 of 2015 titled Sonal Gaur Vs. Hussan Lal & Ors. came up for hearing on 6.5.2016 in Hon'ble High Court, Chandigarh. The shifting of the 1st batch of students of Chintpurni Medical Collage, Pathankot was allowed by Medical Council of

-15India on a proposal sent by Deptt of Medical Education & Research, Govt. of Punjab. Some of the students/parents of the students filed writ petitions in the Hon'ble High Court alleging that the proper procedure was not followed for shifting of these students.

The Director, Research & Medical Education, Punjab, Chandigarh vide letter no. 3/11/16-3ME3/8459 dated 06/05/2016 provided the number of seats of various medical collages to be filled in the counseling. The details of 150 seats is as under : 1.

Government Medical College, Patiala - 30 2.

Government Medical College, Amritsar - 30 3.

Guru Gobind Singh Medical College, Faridkot -15

4. Adesh Institute of Medical Sciences and Research, Bathinda - 19 5.

SGRD Institute Medical Sciences and Research, Amritsar - 19 6.

Gian Sagar Medical College, Banur - 16 7.

Christan Medical College, Ludhiana - 11 8.

Dayanand Medical College, Ludhiana - 10 Accordingly, the distribution of seats was prepared as under :

S N College Total seats SC BC J&K Gen Government Medical College, Patiala Government Medical College, Amritsar Guru Gobind Singh Medical College, Faridkot Adesh Institute of Medical Sciences and Research, Bathinda SGRD Institute Medical Sciences and Research, Amritsar Gian Sagar Medical College, Banur Christan Medical College, Ludhiana Dayanand Medical College, Ludhiana

-16The University was further apprised to conduct the reshifting of the students in the light of judgement in WP(C)No. 12224 of 2015 dated 18.09.2015 of Hon'ble Orrisa High Court. The next date of hearing in this case is 12th May, 2016 and proposal for shifting to be submitted to the Hon'ble Court. The University placed Public Notice on the university website on 06.05.2016 at Guru Gobind Singh Medical College, Faridkot. The merit of the students for re-shifting of the students was prepared on the basis of PMET Marks-2011. One representation was received from Divyani Sharma to shift her to Amritsar, she was shifted to Gian Sagar Medical College, Banur as per her merit and availability of seat. Another representation received from Intern of Chintpurni Medical College, Pathankot to shift them to recognized medical colleges of Punjab as per their score in MBBS final Part-II, the request was not acceded to and they were shifted to other colleges as per PMET-2011 marks.

In this regard, Additional Advocate General, Punjab, Chandigarh vide dated 07.05.2016 has given the following legal opinion to Govt. of Punjab :

Before the counseling, all the candidates, should be informed about this fact including that they are eligible to opt for any seat out of the 150 counseling according to their merit and the availability of the seat at the time of the counseling of each candidate and if, the candidates opt for the same category seats i.e. if he is

-17already got admission in Government quota seat in Chintpurni Medical College and he again opts for the Government quota seat according to his merit and availability of the seats at the time of counseling, he will not be required to pay any extra fee but he opts for Management quota seat, then he will be required to pay a difference fee. It will be much better that 150 performas should be got typed and got signed from each candidate in this regard, before the counseling starts, so that no one arises any dispute at a later stage. In the light of the above, the following undertaking was got typed and signed from all the students by the University. UNDERTAKING I_______________S/D/o Sh. _________________R/o____________ and student of MBBS course of session 2011 of Chintpurni Medical College, Pathankot hereby undertake that :

That, earlier I opted for _____________(Govt/Mgt) quota seat, I during today counseling as per my merit and availability of seat, opt for Government/Management quota in ___________. (College Name) 1.

Since earlier I had seat in Government quota and as in present counseling as per merit, I have opted for Management quota. Therefore I shall pay the difference of fee. OR 2.

Since as per earlier merit, I opted for Government quota and

-18today I also opt for Government quota. Thus my fee shall remain in the same.

Date : 10/05/2016 Signature of candidate Signature of Parent/Guardian The proposal for re-shifting of students to other medical collages, category wise, quota wise as per merit and availability of seats is attached herewith for the kind perusal and orders of Hon'ble High Court."

10.

Mr. M.L. Saggar, learned senior counsel has submitted that 8 students of Gian Sagar Medical Collage, Banur and 1 student of Adesh Institute of Medical Sciences and Research, Bathinda may be shifted to some other Medical College on the ground that the proper facilities of teaching faculty is not available. This argument is strongly opposed by learned counsel for the respondent-State who has submitted that the shifting of the students is based upon a criteria which is acceptable to all of them and if 8 students of Gian Sagar Medical Collage and 1 student of Adesh Institute of Medical Sciences and Research, Bathinda are shifted on the basis of their request then the whole merit would be disturbed.

11.

After hearing heard learned counsel for the parties and perusal of record, I have come to a definite conclusion that 150 students of Academic Session 2011-12, who are in 5th year of their MBBS Course, have been shifted as per their merit and the order passed by this Court in Ms. Jagat Deep Kaur's case

-19- (supra) has been duly complied with and, thus, both the petitions have become infructuous.

12.

Dismissed as infructuous.

13.

A photocopy of this order be placed on the file of connected case.

(Rakesh Kumar Jain) 12.05.2016 Judge sp