Medical Council of India vs Subharti K.K.B. Charitable Trust and Others

B.S. Chauhan and Arun Tandon, JJ.—This Special Appeal has been filed by the Medical Council of India (hereinafter called the ''MCI'') against the interim order passed by the Hon''ble Single Judge in Writ Petition No. 13384 of 2008, Subharati K.K.B. Charitable Trust and Anr. v. Union of India and Anr. Under the interim order, the Hon''ble Single Judge directed the MCI to inspect the petitioner-respondent''s institution qua its applications for grant of permission to start Post-graduate Courses in 20 subjects, and to submit the report to the Union of India within 48 hours, though with an stipulation that such inspection will not vest with any further legal right in favour of the applicant-Institution for grant of permission.

On behalf of the appellant, it is contended, amongst others, that a preliminary objection was raised on its behalf in respect of maintainability of the writ petition on the ground that the petitioner-respondent, practically for the same relief, had approached this Court earlier by means of Writ Petition No. 8792 of 2008. A short counter affidavit was filed on behalf of the MCI stating therein that the statutory regulations framed u/s 10A of the Medical Council of India Act, 1956 (hereinafter called the ''Act 1956'') known as "The Opening of New or Higher Course of Study or Training (including Post-graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Post-graduate Course of Study or Training) (Amendment) Regulations, 2005" (hereinafter called the ''Regulations 2005''), provide for a time schedule for making of the applications, recommendation of the MCI to the Central Government for grant of Letter of Intent, actual issuance of Letter of Intent by the Central Government, reply to the Letter of Intent by the institution, receipt of letter by the Central Government from MCI for consideration of issue of Letter of permission, recommendation of MCI for permission and lastly issue of letter of permission by the Central Government. The time schedule so prescribed, contemplates forwarding of recommendation of the MCI for grant of Letter of Intent to the Union of India. The Central Government, in turn, is required to forward the letter of Intent to the institution upto 15th October and the last date of grant of permission by the Central Government under the schedule is 31st March. It is contented that since the Letter of Intent itself had not been issued because of necessary formalities having not been completed in its entirety by the petitioner-respondent as a result whereof the inspection could not take place, the MCI returned the application of the petitioner-respondent qua grant of permission for the said courses to the Central Government vide letter dated 08.01.2008. A copy of the same was duly filed along the counter affidavit in Writ Petition No. 8792 of 2008. The said matter was heard at some length by the Hon''ble Single Judge and it was brought to the knowledge of the Court that in view of the judgment of the Hon''ble Supreme Court in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, , the time schedule fixed under the regulations of the MCI was mandatory in nature and the MCI or any other person, whatsoever, could not pass an order in violation thereof. The petitioner-respondent, therefore, came up with an application for withdrawal of earlier Writ Petition No. 8792 of 2008 with a specific statement that it proposes to approach the Hon''ble Supreme Court in view of the judgment of the Hon''ble Supreme Court in Mridul Dhar (Minor) (supra). On the application so filed, the Hon''ble Single Judge dismissed the writ petition by order dated 22.02.2008 observing as under:

Learned Counsel for the petitioner as well as Learned Counsel for the Respondents state that the petition be dismissed as withdrawn. The petition is dismissed as withdrawn. No order as to cost.

The petitioner-respondents, instead of approaching the Hon''ble Supreme Court, filed the second writ petition, being Writ Petition No. 13384 of 2008 and in the said writ petition, it was contended that they have now been served with a letter of Central Government dated 08.01.2008 whereby their applications for grant of permission to start Post-graduate Courses had been returned in view of the letter of the Central Government dated 08.01.2008, which according to MCI, was already brought on record as an annexure to the counter affidavit.

In the aforesaid factual background, it was contended that since no permission to file a second writ petition was prayed for nor was granted by the Court, the second writ petition for the same relief was not maintainable and a specific objection in that regard was also raised before the Hon''ble Single Judge. The Hon''ble Single Judge in the impugned order has recorded that the aforesaid preliminary objection would be decided at the time of final hearing of the matter. However, with reference to the judgment of the Hon''ble Supreme Court in Sarva Shramik Sanghatana (K.V), Mumbai Vs. State of Maharashtra and Others, it was contended on behalf of the petitioner-respondents that the second writ petition was not bar inasmuch as it was not a case of bench-hunting inasmuch as the second writ petition was presented before the same Hon''ble Single Judge who had dismissed the first writ petition as having been withdrawn. Issue qua the maintainability of the second writ petition has not been decided as a preliminary issue by the Hon''ble Single Judge. It is further pointed out that the direction issued by the Hon''ble Single Judge requiring the MCI to inspect the institution and also to submit its report to the Central Government within 48 hours of the issuance of the order is virtually a direction which cannot be completed with inasmuch as for every subject of Post-graduation, subject experts had to be appointed for inspection of the institution under the procedure prescribed. In any view of the matter, it is submitted that such directions were not required to be passed in the facts of the case inasmuch as the petitioners-respondents themselves approached this Court at the fag end of the schedule fixed for consideration of their application and further had withdrawn the first writ petition unconditionally. Lastly, it is pointed out that in the counter affidavit filed on behalf of the MCI in the first writ petition, it was specifically stated in paragraph 21 as follows:

The Medical Council of India is required to carry out inspection for the purpose of making recommendations to the Govt. of India for issuance of LOI, during the period upto 15th of September of the previous year. On the recommendations of the Medical Council of India, the Govt. of India is then required to issue the LOI upto 15th October. Thereafter the applicant sends a request to the Govt. of India for issuance of Letter of Permission (LOP) between the period upto 15th November. The Govt. of India is to forward the request of the applicant for Letter of Permission, to the Medical Council of India upto 30th of November. The Medical Council of India, for carrying out the inspection for the purpose of Letter of Permission and for making recommendations by the PG Committee, is given time by the statutory schedule between 1st of December to 28th/29th of February and thereafter the Govt. of India is required to issue the Letter of Permission between 1st December to 31st of March.

It was, therefore, submitted that in the facts of the case since the requirement of the time schedule with regard to the issuance of the Letter of Intent, the last date of 15th October of the previous year has not been complied with, there was no occasion for this Court to issue any direction for inspection of the institution in the month of March, 2008. It is, therefore, contended that the order of the Hon''ble Single Judge be set aside.

On behalf of the petitioner-respondents, Shri R.N. Singh, learned Senior Advocate with Shri Anurag Khanna, contended that the Special Appeal as filed by the appellant is not maintainable for the two reasons:

1.None of the rights of the present appellant has been affected so as to answer the description of aggrieved party.

2.Interim order does not decide any issue and on the contrary, it has been provided by the Hon''ble Single Judge that such inspection of the institution would not confer any right upon the petitioner-respondents to claim permission.

On merits, it has been contended that the Hon''ble Single Judge realising that the petitioner institution has been harassed for no fault of it, thought just, proper and equitable to direct the inspection of the institution to be carried out by the MCI in a time bound manner. Such orders of the Hon''ble Single Judge, which are passed in the interest of justice, may not be interfered with by this Court in exercise of its power under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. It has vehemently been argued before us by Shri R.N. Singh, the Senior Advocate that the petitioner institution had submitted the requisite application within the time and it is only because of internal correspondence between the MCI and the Government of India that the delay has taken place in the inspection of the institution and thereby one full academic year is likely to be lost. Such a situation is neither in the interest of the institution nor of the students at large, who may be benefited in starting of Post-graduate courses. He, therefore, submits that the Special Appeal be dismissed.

We consider the issue of maintainability of the present Special Appeal first.

As already noticed hereinabove, a serious objection was raised on behalf of the appellant qua maintainability of the second writ petition and the Hon''ble Single Judge noticed the aforesaid objections in detail, however, did not express either his prima facie satisfaction or any final opinion qua the maintainability of the writ petition. In our opinion, the Hon''ble Single Judge should have at least recorded his prima facie satisfaction qua maintainability of the second writ petition before considering the application for interim relief and in absence of any prima facie satisfaction having been recorded with regard to the maintainability of the second writ petition, there was no occasion to consider the application for interim relief.

We deliberately refrain ourself from entering into the merits of the aforesaid issue at this stage of the proceedings inasmuch as any observation made by us qua maintainability of the second writ petition may adversely affect the parties before the Hon''ble Single Judge, which would not be in the interest of justice. Suffice it to point out that the judgment of the Hon''ble Supreme Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, as well as in Sarva Shramik Sanghatna (supra), have been relied upon by the contesting parties in support of their cases. However, with regard to the maintainability of the present Special Appeal, we may record that since the Hon''ble Single Judge, while entertaining the writ petition, the maintainability whereof itself was disputed, had proceeded to issue positive directions to the MCI to inspect the institution and submit its report to the Government of India, in our opinion, the said order has a direct effect on the appellant concerned and adversely affects the MCI to the extent that it is required to do something which, according to it, is not warranted under the law and even otherwise practically impossible. Reference may also be had to the judgment of the Hon''ble Supreme Court in Manubhai J. Patel and Anr. v. Bank of Baroda and Ors. reported in, (2000) 10 SCC 253 wherein the Hon''ble Supreme Court has specifically held that usually such leave to appeal is not entertained against an interim order but since the appellant had also raised a preliminary objection before the Division Bench qua the maintainability of the appeal against the order of the Hon''ble Single Judge, the Court should have proceeded with the interim relief application only after deciding the preliminary objection as to the maintainability of the appeal, which has not been done in the facts of the present case also. Following the said decision, we are of the considered opinion that the issue qua maintainability of the second writ petition before the Hon''ble Single Judge in the facts of the case could have been examined and decided first before proceeding to consider the application for interim relief and in absence thereof, the interim order passed by the Hon''ble Single Judge cannot be sustained. In case, ultimately the writ petition is held to be not maintainable, the inspection etc. would be proved to be a futile exercise.

Even otherwise, we are of the considered opinion that such directions requiring the MCI to inspect the institution and submit the report to the Government within two days in respect of grant of permission qua 20 courses of Post-graduate in Medical Sciences, is a direction which is practically incapable of being carried out. Such orders may not be passed by a writ Court, which are rendered infructuous because of inherent incapability of being carried out. We, therefore, hold that the order of the Hon''ble Single Judge dated 11.03.2008, in the facts of the case, cannot be legally sustained and is hereby quashed. However, having regard to the larger interest of the education as also interest of the institution like MCI, we think it just and proper to request the Hon''ble Single Judge to consider and decide the writ petition on day-to-day basis preferably within a period of 15 days from the date the records are placed before the Hon''ble Single Judge. The present appellant is directed to file its counter affidavit within a period of 10 days from today. Petitioner-respondents will have three days thereafter to file rejoinder affidavit.

Let the writ petition be listed before the Hon''ble Single Judge on 20.04.2008.

Special Appeal stands disposed of accordingly.