- (1.) This Special Appeal has been filed by the Medical Council of India (hereinafter called the MCI ) against the interim order passed by the Hon ble Single Judge in Writ Petition No. 13384 of 2008, Subharati K.K.B. Charitable Trust and Anr. v. Union of India and Anr. Under the interim order, the Hon ble Single Judge directed the MCI to inspect the petitioner-respondent s institution qua its applications for grant of permission to start Post-graduate Courses in 20 subjects, and to submit the report to the Union of India within 48 hours, though with an stipulation that such inspection will not vest with any further legal right in favour of the applicant-Institution for grant of permission.
(2.) On behalf of the appellant, it is contended, amongst others, that a preliminary objection was raised on its behalf in respect of maintainability of the writ petition on the ground that the petitioner-respondent, practically for the same relief, had approached this Court earlier by means of Writ Petition No. 8792 of 2008. A short counter affidavit was filed on behalf of the MCI stating therein that the statutory regulations framed under Section 10A of the Medical Council of India Act, 1956 (hereinafter called the Act 1956 ) known as "The Opening of New or Higher Course of Study or Training (including Post-graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Post-graduate Course of Study or Training) (Amendment) Regulations, 2005" (hereinafter called the Regulations 2005 ), provide for a time schedule for making of the applications, recommendation of the MCI to the Central Government for grant of Letter of Intent, actual issuance of Letter of Intent by the Central Government, reply to the Letter of Intent by the institution, receipt of letter by the Central Government from MCI for consideration of issue of Letter of permission, recommendation of MCI for permission and lastly issue of letter of permission by the Central Government. The time schedule so prescribed, contemplates forwarding of recommendation of the MCI for grant of Letter of Intent to the Union of India. The Central Government, in turn, is required to forward the letter of Intent to the institution upto 15th October and the last date of grant of permission by the Central Government under the schedule is 31st March. It is contented that since the Letter of Intent itself had not been issued because of necessary formalities having not been completed in its entirety by the petitioner-respondent as a result whereof the inspection could not take place, the MCI returned the application of the petitioner-respondent qua grant of permission for the said courses to the Central Government vide letter dated 08.01.2008. A copy of the same was duly filed along the counter affidavit in Writ Petition No. 8792 of 2008. The said matter was heard at some length by the Hon ble Single Judge and it was brought to the knowledge of the Court that in view of the judgment of the Hon ble Supreme Court in Mridul Dhar (Minor) and Anr. v. Union of India and Ors. , the time schedule fixed under the regulations of the MCI was mandatory in nature and the MCI or any other person, whatsoever, could not pass an order in violation thereof. The petitioner-respondent, therefore, came up with an application for withdrawal of earlier Writ Petition No. 8792 of 2008 with a specific statement that it proposes to approach the Hon ble Supreme Court in view of the judgment of the Hon ble Supreme Court in Mridul Dhar (Minor) (supra). On the application so filed, the Hon ble Single Judge dismissed the writ petition by order dated 22.02.2008 observing as under: Learned Counsel for the petitioner as well as Learned Counsel for the Respondents state that the petition be dismissed as withdrawn. The petition is dismissed as withdrawn. No order as to cost.
(3.) The petitioner-respondents, instead of approaching the Hon ble Supreme Court, filed the second writ petition, being Writ Petition No. 13384 of 2008 and in the said writ petition, it was contended that they have now been served with a letter of Central Government dated 08.01.2008 whereby their applications for grant of permission to start Post-graduate Courses had been returned in view of the letter of the Central Government dated 08.01.2008, which according to MCI, was already brought on record as an annexure to the counter affidavit.;