Dr. Mrs. Rachita Singla vs State Of Maharashtra on 3 February, 2010
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Mumbai High Court
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
Writ Petition No.1636 of 2009
Dr. Mrs. Rachita Singla,
aged about 27 years,
resident of House Officers Quarters, Daga Memorial Hospital,
Nagpur. .... Petitioner. Versus
1. State of Maharashtra,
Department of Public
Health, through its
Secretary,
Mantralaya, Mumbai-32.
2. College of Physicians &
Surgeons, Bombay,
Dr. E Borges Marg,
Parel, through its
Secretary, Mumbai.
3. Daga Memorial Govt. Hospital, through its Medical
Superintendent, Gandhibagh,
Nagpur.
4. Vidya Shikshan Prasarak
Mandal,
through its Secretary,
YMCA Complex,
Sitabuldi, Nagpur.
5. Lata Mangeshkar Hospital,
through its Medical
Coordinator, YMCA
Complex, Nagpur. .... Respondents. *****
Mr. S.G. Jagtap, Adv., for the petitioner. 2
Mr. D.P. Thakre, Asstt. Govt. Pleader for respondent nos. 1 and 3.
Mr. P.A. Kadu, Adv., for respondent no.2. Mr. G.C. Singh, Adv., for respondent
nos. 4 and 5. *****
CORAM : A.H. JOSHI AND
P.B. VARALE, JJ.
Date : 3rd February, 2010. ORAL JUDGMENT [Per
A.H. Joshi, J]:
1. Rule. Rule is made returnable forthwith. Learned Asstt. Govt. Pleader Mr.
D.P. Thakre waives service for respondent nos. 1 and 3, learned Adv. Mr. P.A.
Kadu, for respondent no.2, and learned Adv. Mr. G.C. Singh for respondent nos.
4 and 5.
2. Heard finally by consent of parties.
3. Petitioner has secured admission in the respondent no.5-Hospital for the
Course of Diploma in Gynaecology and Obstetrics [DGO].
4. According to petitioner:-
[a] Petitioner was admitted furtherance to the advertisement published
in the th
newspapers on or about 12 June, 2008, and based on the brochure
of the respondent no.2 showing that three seats 3
for the course of DGO are available with the respondent no.2.
[b] The respondent no.5 had announced petitioner's eligibility and her
selection.
[c] Petitioner got herself admitted, and has joined the course of instructions
and duty in the hospital. She claims that she has completed her period of
instructions almost to full tenure, however, the respondent no.2 did not grant
to her the enrollment. [d] Consequent to refusal to grant enrollment, she is
not able to appear for the examinations and would naturally be denied the
benefit of said diploma.
5. This petition is filed with a following prayer:- "a. issue a writ, writ
order or direction in the nature of Mandamus or any other appropriate Writ and
thereby direct the respondent No.2 College of Physicians and Surgeons, Bombay to
grant its enrollment to the petitioner under its 18 months' Medical Post
Graduate Course of House Post in Obstetrics and Gynaecology [DGO] August, 2008
commenced on 1.8.2008 and ending on 31.1.2010 to which the petitioner is
admitted in the respondent no.5 Lata Mangeshkar Hospital, Nagpur and thereby to
allow the petitioner to complete the Course by appearing in the Examination
thereof and so also to declare her Results, in the interest of justice."
[Quoted from page no. 9-A of the Writ Petition paper-book].
6. Writ Petition is supported by respondent nos. 4 and 4
5. They claim entitlement and eligibility to run the courses conducted by the
respondent no.2.
7. The petition is opposed by the respondent no.2, against whom main relief is
sought in the petition.
8. Main grounds on which the petition is opposed can be summarized as follows:-
[a] The recognition of Institution-Respondent No.5 is cancelled, as it
did not comply with prerequisite conditions for recognition for the year
2008-09.
[b] Even if admission is given to the petitioner by respondent no.5, petitioner
has no legal right, as no enrollment was given by the respondent no.2.
9. It is an admitted fact that the respondent no.2 has a set of Rules, on the
basis of which hospitals are recognized.
10. One of the important conditions prescribed in Clause 3 of the brochure
reads as follows:- "3. A hospital seeking recognition in two or more than two
disciplines should have total bed strength of at least 225 beds. Free and diet
paying beds should be a rd(75)
minimum of 1/3 of these beds. The free and diet paying beds only
will be considered towards the bed strength in each discipline for recognition
of units. These beds should be dedicated to College of Physicians and Surgeons
of Bombay only. The institution should give an 5
undertaking that these beds will not be used for any other
examining bodies for teaching purpose."
[Quoted from page no.2 of the brochure titled "Criteria for Recognition of
Hospitals & Departments" framed and published by College of Physicians &
Surgeons of Bombay].
11. Further details contained in Clause 5 of Rule 3 prescribe discipline-wise
minimum 25 free diet / charges paying beds for two residents and 15 beds for
one more enrollment.
12. Rule 9 prescribes as follows:- "9. The exclusively speciality hospitals
should have at least fifty Free/Diet paying Beds as defined above. Beds devoted
exclusively for the speciality should have at least two units of twenty five
beds each. It is also necessary to have additional paying beds to financially
sustain the hospital expenses and the same must be reflected in the statement of
accounts duly approved by Charity Commissioner yearly. It should also have
adequate out patient services and supportive departments as in a general
hospital. If all these are not available in the same premises, the facilities
may be shared by permanent arrangements with institutes in the close proximity.
Visiting specialities belonging to other disciplines should also be available
for consultation on a permanent basis."
[Quoted from page no.4 of the brochure titled "Criteria for Recognition of
Hospitals & Departments" framed and published by College of Physicians &
Surgeons of Bombay].
13. It is not the case of petitioner or the respondent no.5 that the Daga
Memorial Hospital is a "Speciality 6
Hospital," and 100 beds allotted to the Respondent no.5 are from speciality of
Gynaecology and Obstetrics.
14. On facts, what is seen is as follows:- (a) The respondent nos. 4 and 5 were
initially granted permission to use 235 beds in the Daga Memorial Hospital of th
the Govt., by Govt. decision dated 16 July, 2005.
(b) The Govt. of Maharashtra had, by a th
decision dated 25 April, 2008, reduced the beds allotted to
respondent nos. 4 and 5 from 325 to 100.
(c) The position of allotted 100 beds has remained in vogue since July, 2008.
(d) The issue of allotment of beds to respondent nos. 4 and 5 was required to be
considered by the Govt., in view of Order passed in Writ Petition No. 2930 of
2008, however, the Govt. of th
Maharashtra has, by order dated 17 March, 2009, declined to vary
the arrangement.
(e) Since April, 2008, the respondent nos. 4 and 5 cease to have requisite
hospital, i.e., having 225 beds, as the number of beds made available to
respondent no.4/5.
[f] This reduction of seats by Govt. orders issued in April, 2008 to 100 has
been 7
initially challenged by the respondent no.4/5, however, they
have later acquiesced with it.
[g] In spite of notifying the reduction of seats, respondent no.4/5 has invited
candidates for admission, and have granted it.
15. It is clear that the respondent no.2 is not bound by the acts of respondent
no.4/5.
16. The petitioner, who is a sufferer of acts of respondent nos. 4 and 5,
cannot claim enrollment and opportunity to appear for the examination because
she has suffered deception.
17. It may be that the respondent nos. 4 and 5 may be able to justify their
cause on any other ground or grounds, however, it does not mean that they had a
right to admit students contrary to the norms laid down by the respondent
no.2.
18. It is not the case of respondent no.4/5 that under any other saving clause,
they are entitled to continue with the existing course, and continue to admit
students.
19. Moreover, the respondent no.2 had specifically informed the respondent no.5
that students cannot be 8
permitted to provisionally attend the lectures without th
enrollment for the Diploma Course by letter dated 26 May, 2009, a copy whereof
is tendered for perusal of the Court and is not disputed by the petitioner.
20. To substantiate his contention, learned Adv., for the petitioner has placed
reliance on reported judgment of Hon'ble Supreme Court in case of Ashok Chand
Singhvi Vs. University of Jodhpur & ors. [(1989) 1 SCC 399] and Order th
dated 14 Nov., 2008 passed by this Court [Coram : Swatanter Kumar, CJ. & S.A.
Bobde, J.] in Writ Petition (Lodging) No. 2174 of 2008 [Dr. Vinod V. Barve Vs.
The College of Physicians & Surgeons & another].
21. The jurisdictional issue is as regards the basic eligibility of the
institution who was conducting the course.
22. When the recognition of the respondent no.5 was withdrawn, and it had lost
basic eligibility criteria, it would have been totally impermissible for the
respondent no.5 to have admitted the students.
23. Petitioner does not have enforceable legal right particularly when the
respondent no.5 is not competent to continue to grant admissions and continue
the course. 9
24. Stand of the respondent nos. 4 and 5 that a student shall not suffer is
also benevolent. The plea of the respondents that the State Govt., had, in
fact, done a wrong thing in one sidedly reducing beds allotted to the
Respondent Nos. 4 and 5, seems to be worth scrutiny, however, this question
cannot be gone into when said question is not in the lis at the behest of the
Respondent Nos. 4 and 5 who are the persons primarily aggrieved. True it is
that the student is undoubtedly a sufferer, however, the respondents were not
entitled to admit the students when the Respondent Nos. 4 and 5 had lost the
facility of 225 begs from Daga Hospital.
25. As the Respondent Nos. 4 and 5 had on facts lost the facility of 225 beds,
they had lost eligibility of admitting students from sessions commencing in
2008.
26. Therefore, the petition does not have merit, and is liable to be rejected.
27. Prima facie, petitioner has been wronged by the Respondent Nos. 1 and 4/5,
however, not by the respondent no.2 and no Writ can be issued against it.
Petitioner's remedy would be elsewhere. Granting any relief to the petitioner
against the Respondent No.2 may amount to granting a relief without there being
corresponding obligation on the respondent no.2. 10
28. In the above premises, Rule is discharged. Parties are directed to bear own
costs. JUDGE JUDGE -0-0-0-0-
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