2001 Supreme(Bom) 875

IN THE HIGH COURT OF BOMBAY
45649
H.L. Gokhale Smt. V.K. Tahilramani, JJ.
Jimmy Abraham Thomas others .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
W. P. Nos. 1658, 1909, 1959 of 2001 and W. P. (L) Nos. 2041, 2070, 2310, 2323, Original Side W.P. No. 2338 of 2001, W.P.(L.) Nos. 2339-2342, 2238 of 2001 and Appellate Side W.P. Nos. 3526, 3692,4338, 4168, 4158 of 2001 and Suo Motu W.P. Nos. 1971 of 2001 and Appellate Side W.P. (S) No. 32929 of 2001 and Original Side W.P. No. 2150, Original Side W.P. (L) Nos. 1889 of 2001, decided on 21-9-2001.
(A)Code of Civil Procedure, 1908, O. 1, R. 8---Indian Medical
Advocates appeared :
V.C. Kotwal, Sr.A. with Sunip Sen and A. Wani, Mehul Shah i/b. Little Co., in W.P.No. 1658/2001, for petitioners.
Gulam E. Vahanvati, A.Gen. Kumbhakoni, Special Counsel and Ms. Armin Kalyanram, A.G.P., in W.P. No. 1658, 2342, 1889/2001, for respondents Nos. 1 2 and in W.P. No. 1909, 2041, 2070, 1959, 3526, 3692, 1971, 2310, 2323, 4338, 32929, 4168, 2342, 2238/2001, 1889 for respondents and in W.P. No. 4158/2001, for respondents Nos. 1 to 4.
Ms. Simran Puri i/b De Juris, in W.P. No. 1658, 1909, 2342/2001, for Medical Council of India respondent No. 3.
Madhav Jamdar and V.A. Thorat, in W.P. No. 1658/2001, for respondent No. 4.
V.R. Bhandare, in W.P. No. 1658/2001, for respondent No. 5.
Prateek Sakseria i/b Vinod Mistry Co., in W.P. No. 1658/2001, for intervener. Miss Rehana Patel to support petition.
Surel Shah, in W.P. No. 1658/2001, for intervener M.M. Aurangabadkar to oppose petition.
Uday Warunjikar, for interveners, N.M. Wadikar others, in W.P. No. 1658/2001, to oppose petition.
V.M. Thorat, for interveners Vishal Sharma other interveners, in W.P. No. 1658/2001.
R.S. Apte, in W.P. No. 1658/2001, for interveners.
R.K. Mendakar in W.P. No. 1909/2001 for petitioner.
S.V. Sakhare, in W.P. No. 2041/2001, for the petitioners.
Ms. Smita Gaidhani, in W.P. No. 2070/2001, for petitioner.
A.D. Chaugule, in W.P. No. 1959/2001, for petitioners.
Naveen Chomal, in W.P. No. 3526, 4158/2001, for petitioners.
T.S. Ingale, in W.P. No. 3692/2001, for petitioner.
Mihir Desai, in W.P. No. 2310/2001, for petitioner.
Ms. Bhavna Shah with B.H. Vyas, in W.P. No. 2323/2001, for petitioner.
V.M. Kendre, in W.P. No. 4338/2001, for petitioner.
D.C. Shah with A.M. Saraogi, in W.P. No. 32929/2001, for petitioner.
U.V. Nikam, in W.P. No. 4168/2001, for the petitioner.
Ms. Suvedita Shah in a W.P. 2342 i/b. S.I. Shah Co., for petitioner in Sr. Nos. 6 to 10.
Suraj M. Shah, in W.P. No. 2342/2001, for respondent No. 4.
V.M. Thorat and K.V. Reddy, in W.P. No. 2238/2001, for petitioners.
M.M. Vashi i/b. M.P. Vashi Associates, in W.P. No. 1889/2001, for petitioner and parties intervening after issuance of notice under Order 1, Rule 8 of C.P.C.

Headnote:Indian Medical Councils Act, 1956 - Section 10-A, B, C - Civil Procedure Code, 1908, Order I, Rule 8 - Common Entrance Test - Defective evaluation of tests papers - Representative suit - Correction of error and fresh evaluation sought - Increased marks resulted - Effect of - Merit list already published and admissions took place - Held - Merit list to be revised - To be published and implemented - Admissions to be granted in accordance with revised merit list - Admissions as per earlier merit list cancelled.

       Indian Medical Councils Act, 1956 - Section 10-A, B, C - Civil Procedure Code, 1908 - Order I, Rule 8 - Common Entrance Test - Error in evaluation of test papers - Correction of error and fresh evaluation sought - Resulted in increased marks - Stu- dents admitted in private colleges entitled to move to Government Colleges - Seats in Government Colleges required to be increased to absorb them - Direction for by Court - Held - In view of Section 10-A, B, C of Act Court cannot give such direction to Medical Council - Medical Council directed to evolve appropriate scheme to deal with need in future. - As for as the Central Government and the Medical Council of India are concerned, they are undoubtedly not responsible for the initial situation as it emerged. But they could have certainly helped the State Government to tide over this difficult situation by considering a one time increase in the Prime Medical Colleges run by the State Government and the Municipal Corporation. That would have been in tune with the expectation of Krishna Iyer, J. in State of Kerala v. T.P. Roshana, AIR 1979 SC 765 to solve the problem on hand. In that matter, while criticising the right attitude adopted by Courts, Krishna Iyer, J., had observed. The Court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse.

        If we read "Medical Council of India" in place of "Court" in the above quotation that will aptly describe the stand taken by Medical Council of India. The Medical Council of India is quite aware of the fact that most of these colleges are by and large well managed and they have all the adequate infrastructure. A small increase in each of these colleges as sought by the State Government could have given good number of seats to accommodate the becoming Version 33 students and the entire dislocation could have been avoided. Whereas on the one hand, the Medical Council of India is saying no to the State Government for marginal one time increase in different colleges, on the other hand, we find that in some of the letters, the parents of the students have criticised the speed with which the colleges of the political leaders and increase of seats therein are approved by the Medical Council of India. The argument of Medical Council of India and the Central Government of course was that there could not be any such one time increase as claimed. We are not very much impressed by this argument. If the Medical Council of India and the Central Government have the necessary power to control the intake capacity, the power under Section 10-A can certainly be read to include the power to permit a one time increase in the seats. Besides, this provision does not expressly exclude such one time exercise. This was an extra-ordinary situation and the Medical Council of the India and the Central Government could have reacted with a little more sensitivity than the way they did. The entire stand of Medical Council of India was to rely on the statutory provisions. They are within their rights to submit in that manner. At the same time, they must also appreciate that an authority, which has got so much centralised power, can act with flexibility in a difficult situation. In our view, both of them have failed to show any such sensitivity and flexibility. As seen in the earlier mentioned judgments, such situations requiring increase of a few seats have emerged on a number of occasions. There can always be a marginal increase of the seats for one batch which seats can be taken away after the requirement of that batch in over, unless the Medical Council of India decides to continue these increased seats. It is high time that the Medical Council of India evolves an appropriate scheme to deal with such situations at the earliest. Of course, while making these observations, it is clear that it is only if these authorities were to clear this increase in seats as sought by the State Government that this Court could have considered absorbing the Version 33 students in these increased seats. However, we make it clear that the Court cannot give directions, as sought by some of the affected students, to Medical Council of India or to Central Government to increase the seats in the teeth of the law as it stands after the inclusion of Sections 10-A, 10-B and 10-C in the Indian Medical Council Ac

       Indian Medical Councils Act, 1956 - Section 10-A, B, C - Civil Procedure Code, 1908, Order I, Rule 8 - Common Entrance Test - Defective evaluation of tests papers - Representative suit - Correction of error and fresh evaluation sought - Increased marks resulted - Effect of - Merit list already published and admissions took place - Held - Merit list to be revised - To be published and implemented - Admissions to be granted in accordance with revised merit list - Admissions as per earlier merit list cancelled.