SCA/955120/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9551 of 2008 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= PRATIK SUNDARJIBHAI AMLANI & 50 - Petitioner(s) Versus UNION OF INDIA & 7 - Respondent(s) ================================================= Appearance : MR SI NANAVATI with MS ANUJA S NANAVATI for Petitioner(s) : 1 - 51. MR PS CHAMPANERI for Respondent(s) : 1, MR DIPEN DESAI AGP for Respondent(s) : 2, 3, 8 Respondent(s) : 7 : Served MR SN SHELAT Sr. Adv. With MR MITUL K SHELAT for Respondent(s) : 4, 6, MR DC DAVE for Respondent(s) : 5, ================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/08/2008 ORAL JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH) Rule. The learned counsel for the respective parties waives service of Rule. In the facts and circumstances of the case, the SCA/955120/2008 2/6 JUDGMENT petition is taken up for final disposal today. 2. In this petition under Article 226 of the Constitution, 51 students who were granted admissions to Swami Vivekanand Institute of Medical Science and Research, Valia in Bharuch district, run by respondent No.7 – trust, on the basis of their merit at the higher secondary examination conducted by the Gujarat Secondary Education Board, have prayed for a writ of mandamus to direct respondent Nos. 1 to 6 – authorities to transfer the petitioners in any recognized medical college because the petitioners who were granted admission to respondent No.7 – college in academic year 2004-05 are suffering for no fault of theirs on account of subsequent derecognition of respondent No.7 – college by the Medical Council of India ('MCI' for brevity). 3. Respondent No.7 was granted recognition by the Medical Council of India for opening a medical college with intake capacity of 100 students. Accordingly in August / September 2002, the Centralized Admission Committee of the State allotted 100 students to the medical college run by respondent No.7 – trust. However, for the next academic year i.e. 2003-04, MCI did not recommend renewal of the recognition and, therefore, no students were alloted to the medical college run by respondent No.7 for the academic year 2003-04. Again for the next academic year i.e. 2004- 05, MCI, on the basis of the report of the Executive Committee dated 6.7.2004, granted renewal of the recognition for a batch of 50 students. On the basis of the said recognition of the MCI, the Central Government renewed the recognition of medical college run by respondent No.7 for a batch of 50 students. 4. 50, out of the present 51 petitioners, were granted admissions to the medical college run by respondent No.7 in the academic year 2004-05 through the Centralized Admission SCA/955120/2008 3/6 JUDGMENT Committee of the State. One of the students of the 2002-03 batch is the remaining petitioner that is the 51st petitioner because he passed one of the University examinations at the second attempt. 5. The Central Government did not renew the permission for admitting students for the academic years 2005-06 onwards. Some of the present petitioners moved this Court by filing Special Civil Application No.19934 of 2005 praying before this Court either to restrain the respondent – authorities from withdrawing / cancelling recognition of the medical college run by respondent No.7 trust or for a direction that the petitioners be transferred to any other recognized medical college. This Court disposed of the petition by order dated 5.10.2005 after recording the statement made by the learned counsel for respondent No.5 – University that the students who are studying in respondent No.7 college will complete their MBBS course. The students have accordingly been pursuing their studies in the Third MBBS class. 6. In the present petition, the students have prayed for a writ of mandamus to direct respondent Nos. 1 to 6 – authorities to transfer them to any other recognized medical college so that they do not have to face any uncertainties and forfeiture of their studies pursued so far only on the ground that the medical college run by respondent No.7 has not obtained renewal of the recognition for the subsequent years during which the petitioners have been pursuing their medical studies after their admission to the medical college run by respondent No.7 – trust in the academic year 2004- 05 when MCI had granted recognition and when the students were granted admission through the Centralized Admission Committee on the strength of their merit at the higher secondary examination. 7. Mr S.I. Nanavati, learned counsel for the petitioners has invited our attention to the Essentiality Certificate which was issued by the State Government on 13.11.2001 and particularly the SCA/955120/2008 4/6 JUDGMENT following part of the certificate wherein the Government of Gujarat certified, inter-alia, as under :- “It is further certified that in case the applicant (respondent No.7 – medical college) fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government.” It is submitted that in view of the above assurance contained in the Essentiality Certificate, the State Government must make the necessary arrangement for allotting the students to a recognized medical college affiliated to the South Gujarat University (respondent No.5). 8. Mr Dipen Desai, learned AGP appears for respondent Nos.2, 3 and 8 – State of Gujarat and its officers. Mr SN Shelat, learned Senior Advocate with Mr Mitul K Shelat appears for respondent Nos.4 and 6 – Medical Council of India and Gujarat Medical Council respectively. Mr Dhaval C Dave, learned advocate appears for respondent No.5 – Veer Narmad South Gujarat University. Respondent No.7 is served. Mr PS Champaneri appears for the Central Govt.. 9. Having heard the learned counsel for the parties, we find considerable substance in the submission made by Mr Nanavati for the petitioners that recognition was granted by the Central Government to the medical college run by respondent No.7 trust in view of the assurance held out by the State Government that in case respondent No.7 – trust failed to create infrastructure for the medical college as per MCI norms and fresh admissions were stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in respondent No.7 – college with the permission of the Central Government. There is no dispute about the fact that all the SCA/955120/2008 5/6 JUDGMENT petitioners herein, 51 in number, were admitted to the medical college run by respondent No.7 – trust in the years 2002-03 and 2004-05 for which years the Central Government had permitted respondent No.7 to admit students to its medical college. 10. In the report dated 27.12.2007 of Medical Council of India, various deficiencies were pointed out and inter-alia the following conclusions were indicated :- “In view of the above, the shortage of teaching staff required at present stage is as under :- (a) Shortage of teaching faculty is 91.7% (i.e. 111 out of 121) (b) Shortage of Residents is 100% (i.e. Nil out of 85)” Even regarding the clinical material and distribution of beds, 48 inadequacies and deficiencies were highlighted, it is not necessary to refer to the same as the fact that respondent No.7 did not get renewal of recognition from 2005-06 onwards on account of failure to create infrastructure for the medical college as per MCI norms is undisputed. 11. On account of the defaults committed by respondent No.7, it was not permitted to admit any students to the medical course from 2005-06 onwards, but the petitioners who were admitted in the years 2002-03 and 2004-05 with the permission of the Central Government and MCI are not at all responsible for such failure of respondent No.7 to obtain renewal of the recognition from the Central Government. The State Government must, therefore, be held liable to take over the responsibility of the petitioners and to ensure that they are allotted to a recognized medical college affiliated to the South Gujarat University so that they can complete their studies and on passing the examination being conducted by the South Gujarat University they can obtain the MBBS degree which can be treated as a recognized qualification under the Indian SCA/955120/2008 6/6 JUDGMENT Medical Council Act, 1956. 12. While giving such a direction to the State Government for the benefit of the petitioners who are in the final MBBS class, we make it clear that it will be open to the State Government to recover the expenses from respondent No.7 – trust. If performance guarantees given by respondent No.7 to the State Government are in force, it will be open to the State Government to invoke such performance guarantees. If the validity period of such performance guarantees has expired, it will be open to the State Government to recover the amount from respondent No.7 by any other means. Before quantifying the amount, the State Government may give an opportunity of hearing to respondent No.7 trust, but once the amount is quantified, it will be open to the State Government to recover such amount as arrears of land revenue. However, compliance with the direction to admit the petitioners to any other medical college shall not await receipt of, or recovery of, funds from respondent No.7 trust and the State Government and respondent No.5 shall complete allotment of the petitioners to a recognized medical college within one month from the date of receipt of writ of this Court or a certified copy of this judgment, whichever is earlier. 13. The petition is allowed in the aforesaid terms. Rule is made absolute. Direct service is permitted. (M.S. SHAH, Actg. C.J.) (K.A. PUJ, J.) zgs/-