ISEARCH AND ANR v. BOARD OF GOVERNORS IN SUPER SESSION COUNCIL OF INDIA AND ANR

-J) withdrawal. Prior'to its amendment by Act 104 of 1976, Rule 1 of Order XXIII ofthe Code provided for two kinds of withdrawal ofa suit, namely,(i) absolute withdrawal, and (ii) withdrawal with the permission ofthe Courtto institute a fresh suit on the same cause of action. The first category of withdrawal was governed by Sub-mle (1)thereof, as it stood then,,which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed,by Sub-rule (2) thereof which provided that where the Court was satisfied(a)that a suit must tail by reason of some formal defect, or (b)that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter ofa suit or part ofa claim,it might,on such terms as it thought fit, grant the plaintiff permission to.withdraw-from such suit or abandon a part ofa claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Sub-rule (3) of the former Rule 1 of Order XXfll of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in Sub-rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of Rule 1 of Order XXIII ofthe Code now reads thus: J WP(C)335-2()13 and Ors. Page 8 of26,[4] Rule 1. Withdrawal of suit or abandonment of part of elaim(l) At any time after the institution of a suit, the plaintiff may as against all or any ofthe defendants abandon his suit or abandon a part ofhis elaim::i::i;:|: ^ ^^^:|c:|: sj:^ (3)Where the Court is satisfied (a) that a suit must fail by reason of some formal defeet, or (b) that there are suffieient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter ofa suit or part ofa claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a ifesh suit in respect of the subject-matter ofsuch suit or such part ofthe elaim. (4)Where the plaintiff. (a)abandons any suit or part ofclaim under Subrule(l),or (b)withdraws from a suit or part ofa elaim without the permission referred to in Sub-rule(3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh. suit in respect of such subject-matter or such part of the claim.

9. The point for consideration is whether a petitioner after, ^ with-drawing a writ petition filed by him in the High Court j under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a Ifesh writ petition in the High Court under that Article. On this point the decision in Daryao's ease (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judieata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting WP(C)335'-2013 and Oi's. ' Page 9'ot26 j tactics. In any event there is no justifiable reason in such a ease to permit a petitioner to invoke the extraordinaiy jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without.permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata,the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was "■ not maintainable before it in respect of the same subjectmatter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas coi-pus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogetlier. We, however leave this question open."

16. Mr.Kumar has farther relied upon Dr.Namit Bhargav v. Medical Council reported at 109 (2004) DLT 404, more particularly para 7, which reads as under:

WP(C)335-2013 and Ors. Page 10 of26 tlie Hon'ble Supreme Court finds that there are no merits in the factual matrix presented to it in the Petition under Article 32, it would be sanguine,ifnot improper and legally incoiTect,for a High Court to entertain similar prayers. Learned Counsel for the parties are in agreement that there ismo precedent on this issue; indeed, none was cited before me."

17. Mr.Kumar has also relied upon JDPL VRS ami Retired Employees Federation Gurgaon The Secretary, Government ofIndia and Ors,, W.P.(C)12665/2009,more particularly para 7, which reads as under:

7. First, I would deal with the preliminary objection raised by the counsel for the respondent that since no leave ofthe Apex Court ^ was taken by the petitioners atthe time ofwithdrawing the petition filed by them under Aiticle 32 of the Constitution of India, therefore,' the present petition fled under Article 226 of the Constitution of India based on the same facts and same cause of action would not be maintainable. In support of his arguments the learned Counsel for the petitioner placed reliance on thejudgments of the Apex Court in Sarguja Transport Service (Supra) and Upadhyay & Company (Supra). One of the earlier cases where this question came under consideration was the case of Daryao Singh Vs. State of U.P.& Ors.(1962) 1 SCR 574 where the Court; was confronted with the question as to whether the dismissal Ol' writ petitions filed by a party under Article 226 ofthe (Constitution of India would create a bar of res judicata against a similar petition filed by the same party under Article 32 ofthe.Constitution ^ of India. Answering the said question the Apex Court held as " under:- "The next question to consider is whether it makes any difference to the application of this rule that the decision on vy'hich the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under Art. 226. The argument is that one of the essential requirements ofSection 11 ofthe Code ofCivil Procedure is that the Court which tries the first suit or proceeding should be competent to tiy second suit or proceeding, and since the High Court cannot entertain an application under Art. 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement WP(C)335-20]3 and Ors, - Page 11 of26 prescribed by Section 11 as to the eompetcnee of the first Court to try the subsequent suit is an essential pail of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction ofthe High Court in dealing with a writ petition filed under Art. 226 is substantially the same as the jurisdiction ofthis Court in entertaining an application under Art. 32. The scope ofthe writs, orders or directions v/hieh the High Court can issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental i right and its illegal contravention in both cases and the relief claimed in both the eases is also of the same character.. -J.Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, whereas Art. 32 provides for moving this Court for a similar writ petition for the same puiqiose. Therefore, the argument that a petition under Ail. 32 cannot be entertained by a High Court under Art. 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under Art. 32 must be rejected. It is, however, necessary to add Lhat in exercising its jurisdiction under Art. 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue ofa high prerogative writ may reasonably be treated as a matter of discretion. On the other hand,the right granted to a citizen to move this Court by appropriate.. proceedings under Art. 32(1)being itselfa liindamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under Art. 32 after a long lapse oftime considerations may arise whether rights in favour of third parties which may have arisen in the meanwhile could be allowed to be affected, and in such a case the effect oflaches on the part ofthe,petitioner or ofhis acquiescence may have WP(C)335-2013 and Ors. Pagcl2of26 W 71, •—yL Sf'f to be considered; but, ordinarily if a pelilidhdf makes out a case for the issue ofan appropriate wjit or otder.he would be entitlecl to have such a writ or order under Art. 32.;and that may be said to constitute a difference,in the right conferred on a citizen to move the High Court under Art.,,as distinct from the right coniei-rcd on him to move this Cdml. This difference must inevitabl)/ mean that if the High Court hasreflised to exercise,its discretion on the ground of'laches or on the ground that, the party has an efficacious alternative remedy available to him then of course^the ddcision of the High Court cannot generally be pleaded in ■support of the,bar of res judicata. If, h-owever, the; matter, has been cohsidefed. on the merits and the High Court has dismissed the petition n for a writ on the ground that no fundamental.right.is proved; or its breach is either hot established; or is shovyri to' be constitutionally justified' there is' ho reasoii why the said decision should t not be treated nas. a bar>.agajnst the competence of a subsequent. petifioh;.ifiied by nhe dame party on the same facts, and for the same reliefs undeivAit. 3-.2. ' '. 'idere is one more argument yvirich still remains, to be considered. It is. urgedthat the remedies,'.av'airabhr-lb the".; • petitioners to.move.thC ifigb XxAirt'miden Art; d226--;md,.this Court under- Art.- 32 'are aHefnatc 'r-fbniedi.es and. ao the;adoption, of one remedy cannot bar thc'adoptiorrdltbemther.. ■ These remedies;are not exclusive but arc cumihAjiye anci sonO' bar of res judicata can be pleaded--When, a ■pa.riyliledd petitionhinder Art. 226.3eeJ>s,li|{j.ti.ydl<e:tlid,jtiryH of this;Court■fihder Aft.- 32b"ln./suppdiA;^ reliance hasibeen placed on "th[6].decisihh:(if.thdT.}al.ctitd)d;ii.g^^ Court in Mussarnmat Gulab Kioci: f. Badshah M.?- C.W.N. 1197.]; In that case a party who had-unsuefess'ftffiy sought for the. I'cview.of a consent- order on the gfaundfGf fraud brought a shit for a similar relief and.vyas..inef by a plea of res judicata. This plea was rejected.:by..the Count on the. ground.that the. two ■remedies though..co-cxisljng'.vvci.-c not" inconsistent so that when a party aggrieved hasTad recourse first 10 one remedy it cannot be.prceiuded.frorn s,ubsequ"en.tly taking recourse to the other. In facthhe judgment, shows.,thgt the Court took the view that an appiication for rcvicw was. in: the circumstances an inappropriate remedy and thai:thc only Wl'(C)335-2().13.ar(d Ovs.. -Pagic 1.3olHO remedy available to the party was that of a suit. In dealing with the question of res judieata the Court examined the special features and conditions attaching to the application for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature ofthe right to appeal provided against such orders. In the result the Court held that the two remedies camiot be regarded as parallel and equally efficacious and so no question ofelection ofremedies arose in those cases. We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therelfom is tried by a court of competent jurisdiction and all points of controversy are settled the intervention of the decision of the Court would make no ""—J difference at all. In such a case the point to consider always would be what is the nature ofthe decision pronounced by a Court of competent Jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits by the High Court the judgment thus pronounced is binding between the parties and it cannot be circumvented or by-passed by his taking recourse to Art. 32 ofthe Constitution,'fherefore, we are not satisfied that the ground of alternative remedies is well founded".

18. Learned counsel for the i-espondent submits, that since the order of 30.6.2012 has attained finality the petitioner cannot be allowed to file the present writ petitions, as the impugned orders are based only on the order dated 30.6.2012.'fhe second submission of counsel for the respondent is that the respondent has found grave discrepancies in the running of the petitioner college. Mr.Kumar also submits that a show cause notice was issued to the petitioner on 20.3.2012. It was brought to the notice ofthe petitioner that there was discrepancy in the strength of the faculty.- A further discrepancy was found when the record pertaining to the Employees Provident Fund was compared to the reeord of the college, there was diserepaney in the number of nursing staff, bed strength, WP(C)335-20].[3] and Ors. Page 14 of26. number ofoperation theatres and the number ofOPD(Out Door Patient). It is also submitted that the reply to the show eause notiee, which was received, was found to be unsatisfactory and a second show cause notice was issued to the petitioner on 30.5.2012, response to which was also found to be satisfactory.

19. Mr.Kumar submits that since the strength of the teaching faculty is in doubt as the persons mentioned in the list of employees are not actually v/orking for the college and the college has not been able to produce any evidence to show that the salary is being paid to the teachers. Mr.Kumar \ further submits that the order of 30.6.2012 has been passed placing reliance on the Clause 8(3)(l)(d)ofthe Hstablishment ofMedical College Regulations, 1999,(as amended by gazette notification dated 16.4.2012). It is also submitted that since it has been found that the college has employed teachers with fake/forged documents, processing of the application of the petitioner for two academic sessions has been suspended. Counsel also contends that the discrepancies in the running of the petitioner college are glaring and serious, and thus, the petitioner has not been able to make out a case for grant of permission to increase the number ofstudents in the Post Craduation and for starting nev/ courses in the Post Graduation. Counsel also contends that the inquiry, which was conducted and the order so passed on 30.6.2011 was with respect to both the Under (iraduate and Post Graduate courses. Counsel next contends that even otherwise the prayer to set aside the order dated 30.6.2012 has been given up in the earlier writ petition filed by the petitioner being W.P.(C)4509/2012 and the orders passed in the present writ petitions,are consequential orders arising out ofthe order dated 30.6.201,2.

20. I haye heard counsel for the parties and considered their rival contentions. Initially the petitioner, college was established in the year 2004 V'/ith the WP(C)335-2()13 and Ors.,. ' Page ]5oF26 (21 capacity of 100 seats. On completion of the first bateh of MBBS,MCI recognized the college for conductofMBBS course with 100 seats. In the same year the college applied to the MCI for enhaneement ofMBBS seats from 100 to 150 and the permission was also sought to commence various PG courses, which led to an inspection between the months of.lanuary to March, 2011. For the PG medical courses a letter of permission was granted to the petitioner for the academic session 2011-12. In the month ofMarch,2011,the petitioner sought enhancement ofMBBS seats to 150 and also made a request for starting / increase ofseats in the post graduate course w.e.f. academic year 2013-14. The request of the petitioner for n increase in number ofMBBS seats to 150 admittedly stands rejected by an order dated 30.6.2012, which according to the respondent has attained hnality, as the writ petition filed before the Supreme Court of India, challenging the aforesaid order was withdrawn by the counsel for the petitioner.

21. The case ofthe petitioner is that respondent has rejected the application made by the petitioner for increase in number of seats and starting new course for the post graduation, while relying on the order of 30.6.2012, which was passed on an application made by the petitioner requesting for increase of MBBS seats to 150 which has no bearing to the request so made. The submission of eounsel for the respondent is that since the order dated 30.6.2012 has been passed under clause 8(3)(l)(d) of the Establishment of Medical College Regulations 1999 under which the petitioner, institute has been debarred for two academic sessions,the case ofthe petitioner for increase in number ofstudents in the post graduation and for starting new courses in the post graduation cannot be considered by the respondent as clause 8(3)(l)(d)would cover thePG course as well.

22. Mr.Maninder Singh, learned senior counsel for the petitioner has WP(C)335-20I[3] and Ors. Page 16 of26 t ^ 2-0, W contended that firstly clause 8(3)(l)(d)is not applicable to the facts ofthe present case, either for the MBBS and definitely not for the post graduation, as there is no clear-cut finding that the college has employed teachers with fake / forged documents, nor the namc(s) of the teachers have been disclosed, nor the documents have been detailed, which according to the respondents are fake and forged. Order dated 30.6.2012 is reproduced below: "]No.Ma-37(l)/2012-Med./115372 Date:- 30.06.2012 'fhe Dean/Principal, National Institute ofMedical Sciences & Research, Shobha Nagar, JAIPUR -303001(Rajasthan) Ph: 01426-2604040, 2611020; Fax: 01426-213909, 231635; Mobile:09414044040 F-mail: vinodshah 1O@vahoo.com Subject: Nationai Institute of Medical Sciences & Research, Jaipur — Renewal of permission for admission of 2"^ batch of MBBS students against the increased intake i.e. from 100 to 150 for the academic year 2012-2013 regarding. Sir, I am directed to inform you that the after taking into consideration the Assessment Report(4^'^ & 5"^ June,2012)and the following material:-

(i) Show Cause Notice dated 20.03.2012 issued by the

(ii) Reply ofyour college dated 21.03.2012;

(iii) Council letter dated 30.05.2012;

(iv) Written submission made by your college dated

05.06.2012;

(v) Oral Submission made by the representative of the

(vi) Council letter dated 25.06.2012;and

(vii) Written submission made by your eollege dated

A. TDS form — a total of 283 doetors of National Institute of

Medieal Seienees & Researeh, Jaipur (Rajasthan) (167 faeulty and 1 16 residents) have been made available by the eollege as against the strength of 379 teaehers as elaimed by National Institute of Medieal Seienees & Researeh, Jaipur (Raj.) in their earlier submission and also infonned during the personal hearing before the Board of Governors on 18.06.2012. Thus, there is diserepaney in the figure of teaehers.

48 in June, 2012 were paid less than Rs.6500. By accepting this position the nursing staff who are getting salaiy less than Rs.6500 per month are supposed to be covered by BPFO scheme. Besides, 5 of these Nurses were receiving salary less than Rs.6500/- throughout the year i.e. from April, 2011 to Mareh, 2012 and thus they are also covered under EPFO. Scheme.

2 In view of the position stated in respect of nurses and nonteaehing staff; the Board of Governors noted that there is a clear violation of BPFO scheme and also noted that the information furnished by National Institute of Medieal Seienees & Researeh, Jaipur (Rajasthan) on two different occasions is also different. WP(C)335-2013 and Ors. 1-^. J The Board of (jovernors considered that the information provided by National Institute of Medical Sciences & Research, Jaipur (Rajasthan) vide their letter dated 27.06.2012 and this information is taken on record. The Board of Governors also noted that National Institute of Medical Sciences & Research, Jaipur (Rajasthan) has flirnished wrong information to the Medical Council of India on different occasions, as per discrepancy noted above.

3. National Institute of Medical Sciences & Research, Jaipur (Rajasthan) has submitted a list of teachers and other staff members with details oftheir name,salary paid to them. At the same time National Institute of Medical Sciences & Research, Jaipur(Rajasthan)have also submitted bank statement issued by j State Bank of India, Jaipur for the period of April 2011 to * March, 2012. On comparing the statement of National Institute of Medical Sciences & Research, Jaipur (Rajasthan) about the payment of salary through Cheque and bank statement it was found that the salary cheque amount has not been withdrawn from the banlc aecount. This raised doubts about.the payment of salary to the teachers and other staffmembers through cheque.

4 The Board of Governors observed that National Institute of Medical Sciences & Research,(NIMS) Jaipur (Rajasthan) has submitted different information on different occasions which falls under clause 8(3)(1)(d)ofthe Establishment of Medical College Regulations. 1999(as amended by Gazette Notification dated 16"^ April,2010),that reads as under;- / "(d)Colleges which are found to have employed teacher with ^ fake/forged documents. If it is observed that any institute is found to have employed a teacher with fake/forged documents and have subrnitted the declaration Form ofsuch a teacher, such an institute will not be considered for renewal of permissionyrecognition for award of MBBs degree/processing the applications for postgraduate courses for two Academic years - i.e. that Academic year and the next Academic Year also".

5. In view of the fore&oing, the Board of Governors have decided not to approve renewal of permission for increase of N4BBS seats from 100 to 150 for the academic year 2012-13 due WP(C)335-2013 and Oi-s,: Page 19 of26 to discrepancies/deficiencies/ shortcoming as stated above and the Board of Governors have also decided to impose penalty under Clause 8(3)(l)Cd)ofthe Establishment ofMedical College Regulations, 1999, by directing Colleae not to admit students against enhanced admission capacity from 100 to.150 for the academic year 2012-13 and 2013-14.

6 Therefore, as directed by the Board of Governors the National Institute of Medical Sciences, Jaipur stands debarred From admitting students against the increased intake of MDBS seats from 100 to 150 for the academic sessions 2012-2013 and 2013-2014. Yours faithfully, [Prof.Sanjay Shrivastava] -J Secretary" 23.. A careful perusal of the order dated 30.6.2012 and more particularly the cause title i.e. subject shows that the order was passed on the request for renewal of permission for admission of second batch of the MBBS students against the increase intake from 100 to 150 for the academic year 2012-13. The concluding paragraph of this order would also show that this order has been passed with respect to MBBS seats and the college stands debarred from admitting students against the increase intake of IVIBBS seats. There is no mention in the order with regard to the P.G. course. Thus it is clear that this order did not pertain to the post graduate course.

24. The short point which comes up for consideration at this stage would be that assuming the order dated 30.6.2012 has been passed under clause 8(3)(l)(d) ofthe Regulations by which an institution is debarred for two academic years, would this order also debar the petitioner for increase in. the number of seats for post graduate and for starting additional PG courses. Clause 8(3)(l)(d)reads as under: WP(C)335-2013 and Ors. Page 20 of26 H "Colleges which are found to have employed teachers with faked/ forced documents: If it is observed that any institute is found to have employed a teacher with faked/forged documents and have submitted, the Declaration Form ofsuch a teacher, such an institute will not be consideredfor renewal ofpermission / 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. However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holiday declared by the Central/State Govt. (2) The recognition so granted to an Undergraduate Coursefor award ofMBBS degree shall befor a maximum period of5years, upto which itshall have to be renewed. (3) The procedurefor 'Renewal'ofrecognition shall be same as applicablefor the award ofrecognition. (4) Tdilure to seek timely renewal ofrecognition as required in sub clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course ofMBBSat the said institute."

25. A carciiil reading of Clause 8(3)(l)(d) would show that in case any institute is found to have employed a teacher with faked (sic)fake /forged documents and has submitted the declaration form of such teacher, the institute would not be considered for permission / recognition foi' award - of MBBS degree / processing the applications for post graduate courses for two academic years i.e. the present and the next year. Counsel for the respondent while relying on Clause 8(3)(l)(d) submits that not only the application for increase ofseats in the MBBS course was rejected, but also as per clause 8(3)(l)(d) of Regulations there has to be an automatic W]»(C)335-201.t andOrs. Page 21 of26 rejection for the post graduation eourses as well.

26. The submission made by counsel for the respondent in my view is unacceptable, as Clause 8(3)(l)(d) is a penal provision, the same is to be read strictly and on bare reading ofthis provision would show that in case of any fake or forged doeument submitted for the employment of a teacher, the institute will not be considered for renewal of permission / recognition for award of MBBS degree/ processing the application for post graduate courses for two academic years, which means that in case the petitioner had only applied for inerease in number of post graduate seats and it was found that certain forged documents ofteachers had been submitted,the application for post graduate shall alone would be rejected and it would not have any effect on the running ofthe MBBS course, as in ihe present ease, which is evident from the fact that the petitioner, college eontinues to run the medical college for 100 students.

27. It is the case ofthe respondentthatforged and fake documents were found when the case of the petitioner was being considered for increase'in MBBS seats. Concluding portion ofthe order dated 30.6.2012 also refers to the intake of MBBS scats, thus reading ofthe order would show that it restricts itselfonly to the MBBS seats, liven otherwise in case this order was applicable to both MBBS and the post graduate course,subject ofthis 1 "3 order would have said so also the concluding part ofthe order would have rclhrred to the same and lastly the petitioner would have been simultaneously informed about the order as being applicable to the MBBS and post graduation especially in view of the fact that in all the writ petitions except WP(C)No.335/2013, the respondent had granted conditional approval to the petitioner for certain PG courses on 31.3.2012, subject to the outcome of the show cause notice issued to the petitioner. The respondents have informed the petitioner by separate order only on n WP(C)335-2013 and Ors. Page 22 of26 14.9.2012, which reads as under: "No.MCI-88(22)/2011-Med./129647 Dated: 14./9/12 The Dcan/FrincBpal, National Institute ofMedical Sciences & Research, Shobha Nagar, Jaipur-Delhi Highway No.8, Jaipur-303 121 Sub.: Increase ofscats in MD(Biochemistry)course at National Institute of Medical Sciences & Research, Jaipur under ) NIMS University,Jaipur u/s lOA,of the IMC Act,1956- Permission of Board of Governors-regarding. Sir/Madam, This is in continuation to the Conditional. Letter of Permission issued vide Council letter dated 31/03/2012 for increase of seats in MD(Biochemistry) course from 01 (One) to 0.2(Two) seats. It may be recalled that the Conditional LOP was subject to the outcome of proceedings initiated against your college, 'fhe Board noted that it had by its decision dated 30/06/2012 decided '/not to approve the renewal of permission for increase of >/[BBS seats from 100 to 150 for the academic year 2012-13 and also, debarred the college from admitting students against the increased intake of MBBS seats from 100 to 150 for the academic session 2012-2013 & 2013-2014. As regards, the matter relating to increase of seats in MB(Biochemistry) course, the Board at its meeting held on ^ 30/07/2012 decided that since the Conditional I.etter ofPemnission was subject to outcome ofthe show cause notice and the Board has decided as above, regarding UG course offered by your institute, the'Board deemed it appropriate to withdraw the Conditional f.etter ofPermission issued vide letter dated 31/03/2012. Ilencc, compliance along with bank guarantee submitted by you vide letter dated 11/04/2012 is not accepted and above said Conditional Letter of Permission stands withdrawn/cancelled with immediate effect. In view of the above, the college authorities are directed to discharge the students admitted against increased capacity in WP(C)335-2()13 and Ors. Page 23 of26 MD(Biochemistry) course, if any for the academic year 2012-13 with an intimation to this Council, within two weeks from the date ofissue ofthis letter."

28. In the batch of five writ petitions on 14.9.2012, petitioner was informed that a conditional letter ofpermission was granted to the college subjectto the outcome of proceedings initiated against- the college and since the board has decided "not to approve the renewal ofpermission for increase of MDBS seats from 100 to 150 for the aeademie year 2012-13 and also debarred the eollege from admitting the students against the increase intake of MDBS seats from 100 to 150. The order dated 3.12.2012 I rejecting the request of the petitioner for the academic session 2012-13 and 2013-14 reads as under: "I am directed to inform you that the Board of Governors at its meeting held on 17.09.2012 considered the matter with regard to submission for starting of New PG courses/ increase in number of existing PG scats by the Institutions wherein adverse action has been taken by the BOGs on show cause notice and decided as under: "'after detailed discussion, considering the agenda note and documents on file the BOGs decided that the request for starting new postgraduate courses/ increase of postgraduate seats in existing medical colleges/ institutions where the BOGs has already taken decision in show cause notice by notpermitting National Institute of Medical Sciences, Jaipur for increasing the admission capacity ofMBBScourse." In view ofabove deeision applieation for starting/ increase of seats in the above PG courses are returned herewith along with application fee of Rs. 28.00 T.akhs vide Cheque Nos. 260170 to 260173 drawn on Syndicate Bank dated 21.11.2012."

29. Both the orders of 3.12.2012 and 14.9.2012 have been passed while WP(C)335-2013 and Ors. Page 24 of26 'SS. T placing reliance on the order dated 30.6.2001[2], whieh has relied upon Clause 8(3)(l)(d). The court cannot lose sight ofthe fact that despite the order of 30.6.2012, 14.9.2012 and 3.12.2012 the petitioner, institute continues to run the MDBS course for 100 students as a recognized college and one batch with 150 seats and further continues to have six post graduate courses all with the previous permission ofthe respondent. It is also not in dispute that the recognition ofthe petitioner, institute has also not been cancelled. In effect the order of30.6.2012 has been passed only with respect to rejection ofincrease ofMBBS seats from 100 to 150 and the petitioner has been debaiTed from seeking increase to 150 for two academic sessions. In my view, on an incoiTect interpretation of Clause 8(3)(l)(d) where the slash (/)is being read as'and' instead of'or' and the effeet ofwhich is the order passed in the MBBS course has been extended to the PG course as well. The order dated 14.9.2012 and 3.12.2012 are accordingly set aside, however,it is clarified that in case upon inspecting of the premises ofthe college ofthe petitioner, or otherwise, respondents find any shortfall and / or any deficiency or reaches a conclusion that the college does not comply with the Regulations / Circulars of Medical Council of India, of Minimum Requirement, as per Regulation, the respondent will be free to decline the permission sought for by the petitioner on or before 28.2.2013.

30. fhe preliminary objection which has been raised by counsel for the respondent with respect to the maintainability of these writ petitions on the ground that the order dated 30.6.2012 has attained finality, is without any force firstly on the ground that the present writ petitions have challenged the order dated 14.9.2012 and 3.12.2012. This submission is also without any force on the ground that although the orders of 14.9.2012 and 3.12.2012 have placed reliance on the order passed on 30.6.2012,the W]4C)335-20].l and Or.s.. ^ PagezSofZo 11, order of30.6.2012, which has been reproduced in this order does not refer to the application made by the petitioner with respect to the post graduation courses and as noticed in the paragraphs aforegoing,subject of this order pertains to the renewal of permission for admission of second batch of MBBS students against the increase intake from 100 to 150 and the concluding portion, which has debarred the petitioner for admitting students against the increase intake of MBBS seats from 100 to 150 for the academic session 2012-13 and 2013-14. While entertaining these writ petitions, the Court has intentionally not commented on the merits ofthe J matter with regard to the order dated 30.6.2012, but have made ^ observatjions only with regard to the applicability ofthe said order for the request of the petitioner for increase of sets in the post graduation and starting additionalPG courses. I'he court has also arrived at a finding that Clause 8(3)(l)(d)ofthe Regulations, even if applies to the MBBS course cannot apply to the post graduate course, as the order of30.6.2012 fails to indicate that the application of the petitioner for P.O. course also stands rejected.

31. li may also be noticed thai at the outset an option was given to the ' petitioner to v/ithdraw the order dated 14.9.2012 and 3.12.2012 and thereafter pass a speaking order for the PG course,liowever,this oflhr was not accepted, as the respondent was of the view that'Clause 8(3)(l)(d) of the Regulations would be applicable to the PG courses as well.

32. I'he writ petitions stand disposed of,in above terms. i^S.SISTANI,J FEBRUARY 25,2013 ssn WP(C)3.1.'S-2013 and Ors. Pagc26of26 n ^ J