IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.11.2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P.Nos.15914 of 2010 and 17384 of 2011 Sri Venkateswara Medical College, Hospital and Research Centre, Rep. by its Chairman, No.13-A, Pondy Villupuram Main Road, Ariyur, Puducherry – 605 102. ... Petitioner in both writ petitions Vs. 1.Union of India, Rep. By its Secretary, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi – 110 011. ... 1st Respondent in W.P.No.15914/2010 2.Board of Governors in Supersession of Medical Council of India, Rep. By its Secretary, Pocket – 14 , Sector – 8, Dwarka Phase – 1, New Delhi – 110 077. ..2nd Respondent in both the petitioners 3.Pondicherry University, Rep. By its Registrar, Administrative Building, R.V.Nagar Kalapet, Puducherry – 605 014. ... 1st Respondent in WP 17384/2011 and 3rd Respondent in 15914/2011 PRAYER IN W.P.No.15914 of 2010: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records on the files of the second respondent in his proceedings in MCI No.34(41)/2010-Med./994, dated 15.07.2010 and quash the same as invalid, illegal, arbitrary, discriminatory, violative of principles of natural justice, and without jurisdiction hence unconstitutional and direct the respondents to grant permission of renewal of admission of 4th batch of students for the academic session of https://hcservices.ecourts.gov.in/hcservices/ 2010-11. PRAYER IN W.P.No.17384 of 2011: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of mandamus directing the respondent herein to announce the results of the examination for the academic year 2010-11 between 07.06.2011 to 17.06.2011 for I year MBBS for the students from the college of the petitioner subject to outcome of the decision in W.P.No.15914 of 2010. For Petitioner in both petitions : Mr.R.Krishnamoorthy, SC for M/s.T.V.Lakshmanan For Respondents in W.P.No.15914/10 : Mr.S.Panneerselvam (SPC) for R1 Mr.V.P.Raman for R2 Mr.A.V.Bharathi for R3 For Respondents in W.P.No.17384/11 : Mr.A.V.Bharathi for R1 Mr.V.P.Raman for R2 COMMON O R D E R Considering the nature of issues involved and the petitioner and respondents are being the same, these writ petitions are disposed by a common order. 2. Writ petition in W.P.No.15914 of 2010 has been filed by the petitioner challenging the order passed by the second respondent dated 15.07.2010, by which, it has been decided not to renew permission of renewal for admission of 4th batch MBBS students for the academic year 2010-11 for the alleged violation of Clause 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. 3. The petitioner has filed the another writ petition in W.P.No.17384 of 2011 seeking issuance of writ of mandamus directing the respondent to announce the results of the examination for the academic year 2010-11 for the 1st year MBBS students. 4. The petitioner herein was granted establishment of Medical College in the year 2007 by the Central Government and the permission has been granted by the second respondent for the petitioner in the year 2007-2008. Thereafter, the said permission has been renewed from time to time by the second respondent. An inspection was made by the second respondent on 14.06.2010. At the time of inspection, the petitioner has produced teaching faculty members of about 151 persons. Thereafter, proceedings have been initiated against the petitioner on the ground that two members of the teaching faculty were found to have joined the https://hcservices.ecourts.gov.in/hcservices/ service of the petitioner on 01.06.2010 and thereafter, relieved on 16.06.2010. It was further found that the above said two teachers were found to be the part of teaching faculty of Sri Manakula Vinayagar Medical College and Hospital, Puducherry, and Meenakshi Medical College Hospital and Research Institute, Kanchipuram. Therefore, the said show cause notice has been issued, and it has been further stated in the show cause notice that two faculty members, in fact, were not working with the petitioner and a false declaration has been knowingly and deliberately given with a view to mislead the team of Assessors. After considering the explanations of the petitioner, the second respondent has taken a decision that inasmuch as 8(3)(1)(d) of Establishment of Medical College Regulations, 1999, having been violated, the petitioner's request for renewal of admission of 4th batch MBBS students for the academic year 2010-11, cannot be considered. 5. At the time of admitting the writ petition in W.P.No.15914 of 2010, an interim order was granted by this Court in M.P.Nos.1 and 2 of 2010, directing the respondents to provisionally permit the petitioner to admit the students for the academic year 2010-2011, subject to the result of the writ petition. Accordingly, students have been admitted and by the further orders of this Court, they were also permitted to write the examination. Since the results have not been published, subsequently, they filed another writ petition in W.P.No.17384 of 2011, directing the respondent to announce the results. 6. Learned Senior counsel appearing for the petitioner submitted that, regulation 8(3)(1)(b) of Establishment of Medical College Regulations, 1999, provides for deficiency upto 20%, therefore, even assuming the two teachers, who are found to be wrongly shown as the members of the teaching faculty, are not included, the petitioner is entitled for the renewal. Learned Senior counsel, by relying upon 8(3) (1)(d) of Establishment of Medical College Regulations, 1999, further submitted that admittedly, the petitioner was not found to have committed forgery of the documents and no document has been faked and therefore, in the absence of a specific provision enabling the second respondent to take action for not scrutinising the original records, the said provision cannot be invoked and that too, for refusing renewal. A further submission has been made that the petitioner has complied with all other requirements and even after that, the second respondent wrongly rejected only by exercising the power said to have been available under Regulation 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. Therefore, learned Senior counsel submitted that the writ petitions will have to be allowed. 7. Per contra, the learned counsel appearing for the second respondent submitted that the records would show that the Principal of the petitioner-Institute has not verified the original records, while admitting the two teachers and the endorsement No.1 clearly specifies that the Principal concerned will have to verify the certificates and https://hcservices.ecourts.gov.in/hcservices/ the documents submitted by the candidates with the original certificates. Had the said exercise been done, such a situation would not have arisen. The provisions contained regulation 8(3)(1)(d) will have to be interpreted liberally, so as to include any deficiency on the party of the institute, which in law, an institute is bound to comply with. 8. Insofar as the reliance made by the learned Senior counsel in Clause 8(3)(1)(b) of Establishment of Medical College Regulations, 1999, is concerned, learned counsel for the second respondent submitted that the said provision will have to be considered independently and therefore, it cannot be a bar for exercising the power by the second respondent under regulation 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. Considering the object behind the regulations, learned counsel submitted that the writ petitions deserve to be dismissed. 9. Admittedly, the only ground on which the renewal was not granted in favour of the petitioner is that, two members of the teaching faculty produced before the assessment team were found to be part of the teaching faculty of Sri Manakula Vinayagar Medical College and Hospital, Puducherry, and Meenakshi Medical College Hospital and Research Institute, Kanchipuram. There is nothing on record to show that the petitioner-Institute has a hand in committing forgery or fraud regarding the documents produced by the above said two teachers. On the contrary, the explanations given by one of the teachers would show that they voluntarily joined the services of the petitioner by suppressing the fact that they were working earlier in some other institute. Therefore, merely because, the records of the said two members of the teaching faculty were not examined, the said act by itself, even assuming that true, cannot be a ground for taking action under Regulation 8(3)(1)(d) of Establishment of Medical College Regulations, 1999. In order to appreciate the contention of the learned counsel for both sides, it is relevant to extract the provisions of 8(3)(1)(b) and 8(3)(1)(d) of Establishment of Medical College Regulations, 1999, and they are produced here-under:- 8(3)(1)(b): Colleges in the state from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B.B.S. degree: If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is <70%, such an institute will not be considered for renewal of permission in that Academic Year. 8(3)(1)(d): Colleges which are found to have employed teachers with faked/forged documents: If it is observed that any institute is found to have employed a teacher with faked/forged documents and have https://hcservices.ecourts.gov.in/hcservices/ submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission/recognition for award of M.B.B.S. degree/processing the applications for postgraduate courses for two Academic Years – i.e. that Academic Year and the next Academic Year also. 10. A perusal of Regulation 8(3)(1)(d) would show that an institute will not be considered for renewal of permission/recognition, if it is observed that the said institute found to have employed a teacher with faked or forged documents and have submitted the Declaration Form of such a teacher. Therefore, when once the forgery or action involving faking a document is found, an action would automatically follow under Regulation 8(3)(1)(d). In other words, in order to exercise such a power under the said regulation being a penal provision, there has to be a factual premise, that a document has been faked or forged. Applying the said provision to the facts of the case, it is clear that the petitioner has not indulged in the act of forging or faking the documents, and there is nothing on record to show that the original records have not been perused by the petitioner. It is also not the case of the assessment team that the original records of the two members of the teaching faculties were not available at the time of inspection. Therefore, merely because, two teachers, who formed part of the teaching faculty of the petitioner, were also found subsequently as members of the teaching faculty of some other institute, the same cannot be a ground to hold that the petitioner has created the documents, as if those teachers were working with the petitioner. 11. Insofar as the contention regarding the interpretation of Regulation 8(3)(1)(b) is concerned, this Court is inclined to accept the submission of the learned counsel for the second respondent, who has submitted that the regulation 8(3)(1)(b) is independent. The said regulation enables the institute to be considered for renewal of permission, when the deficiency of an institution is less than 20%. Regulation 8(3)(1)(d) is a provision, which enables the second respondent to take appropriate action. Therefore, there is no difficulty in holding that these two regulations operate in separate fields. However, considering the facts of the case, this Court is of the view that the Regulation 8(3)(1)(d) cannot be pressed into service for taking action against the petitioner and the Regulation 8(3)(1)(b) would certainly be applicable to its case and it is also not the case of the second respondent that the Regulation 8(3)(1)(b) is not applicable. 12. Therefore, considering the above said facts and in the light of the discussions made, this Court is of the view that the impugned order cannot be sustained and accordingly, impugned order dated 15.07.2010 passed by the second respondent is hereby set aside and the writ petition in W.P.No.15914 of 2010 is allowed. Consequently, W.P.No.17384 of 2011 is also allowed by directing the respondents to announce the https://hcservices.ecourts.gov.in/hcservices/ results of the examination for the academic year 2010-11 for the 1st year MBBS course, within a period of one week from the date of receipt of a copy of this order. 13. It is seen that the petitioner has filed another writ petition in W.P.No.4724 of 2011 and this Court, by order dated 18.03.2011, has passed the following order:- "7. In such view of the matter, this writ petition is disposed of with the following directions: i. The students, who were admitted in the petitioner institution for the academic year 2010-2011 by virtue of the interim orders passed by this Court and in continuation of the status quo order, shall be permitted by the respondent University to writ their examinations, which are scheduled to be conducted from 07.06.2011 to 17.06.2011. However, the above direction is given subject to satisfaction of the present infrastructure facilities of the petitioner institution by the respondent University. ii. The question of grant of affiliation to the petitioner institution shall be considered by the respondent University only after the disposal of the said writ petition and the writ appeal by the Division Bench, which relate to the approval to be granted by the Medical council of India; and iii. The permission given to the students to write the examinations shall be without prejudice to the rights of the parties and it is made clear that it does not give any equity to any of the students. In the event of disposal of the said writ petition and the writ appeal against the petitioner, the students shall not be entitled to any benefits either for admission or for writing the examinations." 14. Inasmuch as the writ petition filed in W.P.No.15914 of 2010 is allowed, the interest of justice would be required that the first respondent in W.P.No.17384 of 2011 will have to be directed to consider the case of the petitioner subject to the condition that the petitioner satisfies all the other conditions imposed. The said exercise will have to be done by the first respondent in W.P.No.17384 of 2011 within a period of two weeks from the date of receipt of a copy of this order. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rkm To 1.The Secretary,Union of India, Ministry of Heal and Family Welfare, Nirman Bhavan, New Delhi – 110 011. 2.The Secretary,Board of Governors in Supersession of Medical Council of India, Pocket – 14 , Sector – 8, Dwarka Phase – 1, New Delhi – 110 077. 3.The Registrar,Pondicherry University, Administrative Building, R.V.Nagarkalapet, Puducherry – 605 014. +1cc to M/s. V.P.Raman, Advocate Sr 67425 +1cc to M/s.A.V.Bharathi, Advocate Sr 67076 MP(CO) km/4.11. W.P.Nos.15914 of 2010 and 17384 of 2011 https://hcservices.ecourts.gov.in/hcservices/