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CASE NO.: Special Leave Petition (civil) 3360  of  2000

PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: ERA EDUCATIONAL TRUST & ANOTHER

DATE OF JUDGMENT:       05/04/2000

BENCH: APRIL 5, 2000

JUDGMENT:

Shah, J. L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

Heard learned counsel for the parties exhaustively.

   These  appeals  are filed by the Union of India and  the Medical  Council of India respectively.  It is to be  stated that  Medical  Council  has  not recommended  for  grant  of permission to establish medical college, yet Medical Council was  not joined as a party respondent in the petition before the High Court.

   Normally, this Court would hesitate to interfere with an interlocutory  order,  but  in a case where prima  facie  it appears  that  the  said order cannot be  justified  by  any judicial  standard,  the  ends of justice and  the  need  to maintain  judicial  discipline requires us to do so  and  to indicate the reasons for such interference without prejudice to the rights of one side or the other.

   It is unfortunate that the High Court of Allahabad (R.H. Zaidi  and  Bhanwar Singh, JJ) exercised the  extra-ordinary jurisdiction under Article 226 of the Constitution of India, in  an  extra-ordinary manner by granting interim  mandatory relief  to  run Medical College, despite the fact  that  the Central  Government  has  rejected  such  permission,  after obtaining  recommendation  from the Medical  Council  twice. The  extra-ordinary  powers  under  Article 226  are  to  be exercised  for  rendering  justice in accordance  with  law. Medical  College  cannot  be  established  except  with  the previous  sanction  of  the Central Government  as  provided under  the  Indian Medical Council Act, 1956 (102 of  1956). Unfortunately,  by  granting this interim  mandatory  order, without  allowing  the  respondents  therein  time  to  file counter affidavit, the Court not only violated the norms for grant  of  interim  relief,  but   has  also  violated   the principles  of natural justice and has allowed the  petition on  the  date of its admission.  It is apparent that on  the day  when the petition was presented, the Court straightaway

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granted  mandatory  order  permitting   respondent  No.1  to establish the Medical College.  Learned counsel who appeared on  behalf  of the Union of India sought an adjournment  for filing  an  affidavit in reply after obtaining  instructions from  the  concerned Department, but the same  was  refused. This  unusual relief was granted in a case where  respondent No.1  filed  an  application  for  consent  of  the  Central Government  to  establish the Medical College at Lucknow  in January,  1997.   That  application   was  considered,   re- considered  and  the  Medical Council had  carried  out  the inspection  twice  and finally on 04.6.1999 application  was rejected by the Central Government.  In hot haste, in a case where  there was no urgency, the High Court by the  impugned order  dated  11.10.1999  directed  that  operation  of  the impugned  order  dated  04.6.1999   passed  by  the  Central Government  shall  be  stayed  and the State  of  U.P.   was directed to allocate the students to the medical college for the  purpose of admission.  As such, it is to be stated that by  granting  stay  of  the  order  passed  by  the  Central Government it is difficult to hold that that would amount to a permission to establish the medical college.

   May  be  that  Order XXXIX of the C.P.C.  would  not  be applicable  at  the  stage of granting interim relief  in  a petition  under Article 226 or 227 of the Constitution,  but at  the  same time various principles laid down under  Order XXXIX  for  granting  ad  interim  or  interim  reliefs  are required  to  be taken into consideration.  In the  case  of Morgan  Stanley  Mutual Fund v.  Kartick Das [(1994)  4  SCC 225],  after considering the various authorities this  Court laid  down the guiding principles in relation to grant of an ad interim injunction which are as under:

   As  a  principle, ex parte injunction could be  granted only  under  exceptional circumstances.  The  factors  which@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ should  weigh  with  the  Court in the  grant  of  ex  parte@@ JJJJJJ injunction are:

   (a)  whether irreparable or serious mischief will  ensue to the plaintiff.

   (b)  whether  the refusal of ex parte  injunction  would involve  greater  injustice  than  the  grant  of  it  would involve;

   (c)  the court will also consider the time at which  the plaintiff first had notice of the act complained so that the making  of improper order against a party in his absence  is prevented;

   (d)  the  court will consider whether the plaintiff  had acquiesced  for  sometime and in such circumstances it  will not grant ex parte injunction;

   (e) the court would expect a party applying for ex parte injunction  to  show  utmost  good   faith  in  making   the application;

   (f)  even  if granted, the ex parte injunction would  be for a limited period of time.

   (g) General principles like prima facie case, balance of

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convenience and irreparable loss would also be considered by the court.

   Apart  from Order XXXIX even with regard to the  Medical education,  there are various decisions of this Court laying down  the principle that normally Court should not interfere and   even  if  interference  is   required  in  a  case  of unsustainable  order,  the authority should be  directed  to re-consider  the case on the norms prescribed under the  Act and/or   the  Rules.   In   Shivaji  University  v.   Bharti Vidyapeeth  and Others [(1999) 3 SCC 224], after considering the  order passed by the University, the Court directed  the University  to re-consider the question in the light of  the observations  made  in  the  judgment.  In  similar  set  of circumstances,  in Civil Appeal Nos.5045 and 5046 of 1998 in Medical  Council of India, New Delhi v.  State of H.P.   and Another,  this  Court on 16.2.2000 observed that  since  the refusal  was  based  on deficiences for  running  a  Medical College,  it would have been appropriate for the High  Court to  have remitted the matter to the Medical Council of India or the Union of India for reconsideration, even if it was of the  opinion that the order of the Medical Council of  India deserved  to  be set aside and the Court ought not  to  have issued  a  writ of Mandamus directing grant  of  permission. Further,  in  Andhra Pradesh Christian  Medical  Educational Society v.  Government of Andhra Pradesh and another [(1986) 2  SCC 667], it was held that even in a case where  students were  admitted in the Medical Colleges and who had continued their  studies  for more than a year, this Court refused  to recognise such admission and observed:

   We  regret that the students who have been admitted into the  college  have not only lost the money which  they  must have spent to gain admission into the college, but have also lost   one  or  two  years   of  precious   time   virtually jeopardising  their future careers.  But that is a situation which  they have brought upon themselves as they sought  and obtained  admission  in  the college  despite  the  warnings issued by the University from time to time.

The Court further observed:

   Any  direction  of the nature sought by  Shri  Venugopal would  be  in clear transgression of the provisions  of  the University  Act  and the regulations of the University.   We cannot  by  our  fiat direct the University to  disobey  the statute  to which it owes its existence and the  regulations made  by the University itself.  We cannot imagine  anything more  destructive of the rule of law than a direction by the court to disobey the laws.

   Similarly  in  Krishna  Priya   Ganguly  and  Others  v. University  of  Lucknow and others [(1984) 1 SCC  307],  for granting interim order, this Court cautioned thus:-

   that  whenever  a  writ petition  is  filed  provisional admission  should not be given as a matter of course on  the petition  being admitted unless the court is fully satisfied that  the petitioner has a cast-iron case which is bound  to succeed  or the error is so gross or apparent that no  other conclusion is possible.

The Court further observed:

   Unless  the  institutions can provide complete and  full

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facilities  for  the  training  of  each  candidate  who  is admitted  in the various disciplines, the medical  education will be incomplete and the universities would be turning out doctors not fully qualified which would adversely affect the health of the people in general.

   In  the present case, this type of situation has  arisen because  of  interim order passed by the High Court  without taking into consideration various judgments rendered by this Court for exercise of jurisdiction under Article 226.  It is apparent  that  even  at  the final  stage  the  High  Court normally  could  not  have granted such a  mandatory  order. Unfortunately,  mystery  has no place in  judicial  process. Hence,  the  impugned  order  cannot  be  justified  by  any judicial standard and requires to be quashed and set-aside.

   However,  it appears that after passing of the  impugned order,  respondent No.1 has started the Medical College.  At the  time  of  admission and hearing of  these  matters,  on 6.3.2000, this Court passed the following order:

   The  learned  Additional  Solicitor   General  of  India submits  that the facts of these cases require a stay  order to  be  passed  today.  On the other  hand,  learned  senior counsel  appearing for the students submits that the  matter may  be taken up next Monday 13.3.2000 so that they can file their counters.  It is however, made clear that while we are granting an adjournment today even if it is by one week this order  will  not be treated as a refusal of  granting  stay. The  respondents cannot claim any equity in their favour  on account  of  the  fact  that stay  was  not  granted  today. Whenever the interlocutory application is to be taken up, it will  be  disposed of on the basis of the facts as  existing today.

   Hence, considering the fact that the respondent No.1 has started  the college, students are admitted and that we  are setting  aside the impugned order passed by the High  Court, but  as a specific statement is made by learned counsel  for respondent  No.1 that all other infrastructure  requirements under  the Regulations framed by the Medical Council  are/or will  be  complied  with, and that 300  bedded  hospital  is likely  to be ready within a period of six months, we direct as under:-

   (1)  The  Medical Council of India shall inspect  within one   month  from  today   whether   other   infrastructural requirements  contemplated  by the Regulations are  complied with  by  respondent No.1.  If any deficiency is found,  the Medical   Council  would  intimate   respondent   No.1   and respondent No.1 would see that the deficiencies are removed;

   (2)  As  soon  as respondent No.1 is in  a  position  to complete  the  300  bedded hospital, it would  intimate  the Medical  Council and the Central Government for carrying out inspection  as  required under the Regulations.   Thereafter within  15 days from the receipt of the said  communication, the Medical Council would carry out the necessary inspection and if there is compliance with the conditions prescribed by the Medical Council of India for commencement of the Medical College, it would recommend the Central Government for grant of  permission.   If  the  recommendations  are  favourable, within  seven days from the receipt of such recommendations, the Central Government would grant the necessary permission. The  Medical Council would carry out the inspection  without

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waiting  for  the inspection fees which could  be  recovered subsequently;

   (3)  In  the event permission under section 10A  of  the Medical  Council  of  India Act is granted  by  the  Central Government,  the  students  who have been admitted  to  this College  after the passing of the impugned order by the High Court, shall stand allotted to the first year MBBS Course of that  college  and  the  1st   MBBS  Course  will   commence therefrom;

   (4)  In  the  intervening  period,  if  respondent  No.1 College wants to carry on classes for teaching the students, it  may  do  so  but this will not give  any  right  to  the students  or the College to claim credit for the said period prior  to the date on which permission under section 10A  is accorded;

   (5)  Students  will  not be entitled to  appear  in  any examination  until  they  complete  the  prescribed  minimum period  of  studies  after the permission is  granted  under section 10A;

   (6)  No further admissions will be allotted to the first batch  of  MBBS  course of respondent No.1 Trust  except  on vacancies  arising from any of the students now allotted  or refusing to pursue their studies further;

   (7)  In  the event of respondent No.1 failing to  comply with  the MCI requirements including a 300 bed hospital  and not  being accorded the permission under section 10A by  the Central  Government, this order will not create any equities in favour of the respondent-Trust or those students who have been  admitted  pursuant to the impugned order of  the  High Court.

   With  the aforesaid directions, appeals are allowed  and the  impugned order dated 11.10.1999 in Civil Writ  Petition No.4387  (MB) of 1999 passed by the High Court of  Allahabad is hereby quashed and set aside.

Ordered accordingly.