D.S. Ravindradoss Vs. the Government of Tamil Nadu, Represented by Its Secretary to Government, Health, Indian Medicine Homeopathy and Family Welfare Department and ors. - Court Judgment

Excerpt:
- - reversed the order of this court and upheld the contentions of the management that the take-over of the college itself is bad. 4. to continue the narration after the order of the division bench of this court, it is alleged that government of tamil nadu decided to handover the said college to the third respondent and it was a rude shock to the student community as well as the parents and the students of the said college started agitation against the handing over of the college to the trust. however, it seems the college has been handed over to the trust again by the present government when a division bench of this court has held that the taking over of the college by the government is bad in law. as i have already stated that it is nowhere alleged in the affidavit that any appeal has been filed against the order of the division bench except a statement made before this court by the learned counsel that an appeal is being filed before the apex court of the land against the order of the division bench of this court, maybe to, as it is the order of the division bench of this court is binding on me, which has held that the taking over of the college by the government in 1989 is bad in law, and as such the government has got to comply with the order of the division bench of this court, which the government it seems has now complied with by handing over the college to the trust, that cannot be a subject-matter before this court, and if any order is passed by this court, it will amount to reviewing of the order of the division bench of this court. it is well settled that principles of natural justice cannot be put into straight jacket formula and principle is flexible. this court sitting under article 226 of the constitution, in my view, should see the interests of the students community as well as the management, to whom the college has been handed over in pursuance of the order of the division bench of this court. ..so i am the view that this writ petition cannot be entertained as 'public interest litigation' and accordingly it has to fail.orderk.s. bakthavatsalam, j.1. the prayer in the writ petition is as follows:.to issue a writ or order or direction and in particular a writ of certiorari calling upon the production of the order relating to the notice undated made in dipr/ms/92 ext. passed by the government of tamil nadu represented by the 1st respondent, quash the same and pass...2. the petitioner is the father of a student studying in llyear m.b.b.s. in the third respondent college. obviously, the petitioner has admitted his daughter when the college was under the control of the government.3. originally the third respondent college was run by a trust and it was taken over by the then government in 1989. this was challenged by the trust before this court. this court dismissed the writ petition, upholding the takeover of the third respondent college by the government. however, this court directed the government to pay compensation to the trust within a particular period. on appeal, a division bench of this court consisting of venkataswami and abdul hadi, jj. reversed the order of this court and upheld the contentions of the management that the take-over of the college itself is bad. the result is the college run by the trust, which is called sri ramachandra medical college has to be handed over to the trust. that judgment has become final. at this stage, the petitioner has come-up to this court stating that as a parent he would prefer his daughter to study in a government medical college, since the government medical colleges are attached to general hospitals where students can gain more knowledge and experience.4. to continue the narration after the order of the division bench of this court, it is alleged that government of tamil nadu decided to handover the said college to the third respondent and it was a rude shock to the student community as well as the parents and the students of the said college started agitation against the handing over of the college to the trust. it is alleged in the affidavit that supporting the agitation by the students of sri ramachandra medical college, medical students all over tamil nadu commenced agitation protesting the decision of the government and demanding the take over by appropriate action. it is also alleged that the police was let loose to suppress the students and the agitators. in view of that the parents of the students of sri ramachandra medical college have formed an association by name sri ramachandra medical college parent's association and the petitioner alleged that he is the convenor of the said association. however, it is not a registered association.5. at this stage, it is alleged that the government is resorting to various measures to suppress, defeat and divide the agitating students and one of the methods adopted by the government according to the petitioner is an announcement made by the minister for health in newspapers to the effect that the parents had discussed the matter with the government and some of them wanted their wards to be transferred to government medical college from the third respondent college and the government has consented. as such an announcement has been made in newspapers that students who jointed the said college in 1990-91 and 1991-92 should give written requisition to the second respondent before 4.9.1992 for such transfer. the application forms will be available at the office of the second respondent. the petitioner alleges that the announcement made by the minister for health as published in the newspapers is illegal, mala fide and arbitrary. it is also alleged that this action is against all canons of natural justice and the notification seeking requisition from the students for transfer from the said sri ramachandra medical college to government medical colleges is contrary to the indian medical council (amendment) ordinance, 1992. it is alleged that such transfer cannot be done without the prior approval of the medical council of india. it is also stated in the affidavit that the impugned notice has been issued to defeat the agitation of the students and parents. it is also stated in the affidavit that only a very few parents were compelled to go for talks and the decision of the government was thurst upon them and out of 200 parents/ guardians, 170 persons are with the petitioner. it is also alleged that the decision of the government is mala fide and the government is very keen only in breaking the unity and agitation of the students and parents. just to confuse and divide the students, the government has come forward with this offer. it is also alleged that the government has not at all passed any government order in this respect and even the impugned notice does not contain the date of issue of the same. it is also stated that the impugned notice is a public anouncement made in newspapers.6. with these allegations, the petitioner has come up to this court with the above said prayer. mr. s. senthilnathan, learned counsel for the petitioner strenuously contends that the petitioner is very much interested in his daughter studying in sri ramachandra medical college, but that college should continue to be a government college. the learned counsel further states that the notice issued by minister concerned is not correct as the parents of the students did not meet the minister concerned and it is a mala fide exercise of power just to defeat the parents and students of the college not to gel into the agitation or continue the agitation. that apart, as per the recent ordinance issued by the government of india, consent of the medical council is necessary for starting medical college or increasing these and as such, the learned counsel placing reliance upon this ordinance contends that the announcement made by the minister concerned is impossible as no permission of the medical council has been obtained by the government of tamil nadu and as such the announcement itself is mala fide. that apart, the learned counsel states that this writ petition has been filed in the interests of the students community who are studying in sri ramachandra medical college and on behalf of the parents of the students who are studying in the third respondent college.7. i have given my careful consideration to the arguments of mr. senthilnathan, learned counsel for the petitioner. 1 may say immediately that i am not convinced that this is not a matter to be entertained in a writ petition by exercising discretionary jurisdiction under article 226 of the constitution. it is true that the third respondent college was managed by the government when the petitioner's daughter was admitted into the college. however, it seems the college has been handed over to the trust again by the present government when a division bench of this court has held that the taking over of the college by the government is bad in law. the result is the order of the division bench of this court has got to be obeyed by the state government and what all the state government has done is the implementation of the order passed by the division bench of this court. as i have already stated that it is nowhere alleged in the affidavit that any appeal has been filed against the order of the division bench except a statement made before this court by the learned counsel that an appeal is being filed before the apex court of the land against the order of the division bench of this court, maybe to, as it is the order of the division bench of this court is binding on me, which has held that the taking over of the college by the government in 1989 is bad in law, and as such the government has got to comply with the order of the division bench of this court, which the government it seems has now complied with by handing over the college to the trust, that cannot be a subject-matter before this court, and if any order is passed by this court, it will amount to reviewing of the order of the division bench of this court. it cannot be done by this court. the notice which is shown before me, is an announcement made by the minister for health in the interests of the students and parents as i can see from the notice. if the students or parents are aggrieved that the college has been handed over to a private management and if they want to continue their studies they are given an option to joint in a government medical college and if they want to continue in the same college, i.e. sri ramachandra medical college they would pay only the fees applicable in other government colleges and this has been accepted by the management. as such, the government has come out with a notification just to sort out the issue by way of compromise that such of those medical students, who joined sri ramachandra medical college in 1990-91 and 1991-92 may give it in writing to the second respondent before 4.9.1992 their application seeking such transfer to government medical colleges. similarly, students in other medical colleges, who seek transfer to sri ramachandra medical college may also apply to the second-respondent. it is made clear in the announcement itself that the requests would be processed as per the guidelines of medical council of india. so, from the notice it is very clear that the government in the interests of the student community has come out with this statement, in my view correctly, that if they want to continue their studies in a private college, they need not pay extra fees to the management. so also if the students do not want to continue their studies in the private college, they can get themselves transferred to any government medical college. in my view, this statement cannot be said to be mala fide or arbitrary. i am unable to accept what mr. s. senthilnathan means that principles of natural justice has been violated. it is well settled that principles of natural justice cannot be put into straight jacket formula and principle is flexible. it varies from case to case and depends upon the facts and circumstances of each case, nature of right which may be affected. here is a case where in the matter of taking over of a college by private management, an amicable solution has been given by the state government and it is for the petitioner either to accept it or reject it. i do not think that it can give rise to a cause of action to come before this court, especially by invoking the extraordinary jurisdiction of this court under article 226 of the constitution. it is true that right to education is held to be a fundamental right. but 1 do not think that this fundamental right can be stretched to the extent as a right to study in a private college or government college. so, on the simple ground that the petitioner has no locus standi in the sense that he has no right to invoke the extraordinary jurisdiction of this court, the writ petition shall stand dismissed. that apart, the petitioner alleges in the affidavit that the parents have formed an association and it is an unregistered association, but it has been held by this court repeatedly that an unregistered association cannot maintain a writ petition.8. at any rate, since i take the view that this is not a matter to be sorted out in the writ petition and this court cannot be used so as to come to the aid of the petitioner when the government has issued a notification in newspapers with regard to some solution to sort out the agitation. this court sitting under article 226 of the constitution, in my view, should see the interests of the students community as well as the management, to whom the college has been handed over in pursuance of the order of the division bench of this court. to strike a balance, in my view, the government has taken a right decision by publishing a notice in the newspapers. the contention that this method adopted by the government is to break the unity of the students and to suppress the agitation of the students and parents, is not appealing to me. this is not a place where such contentions have got to be placed and surely not in a writ court.9. the notification which has been published in the newspapers, which is attacked in this writ petition, in my view, do not compel anybody to resort to any method. any student can act voluntarily according to the notification. so i am not able to accept the contention that the students and parents are coerced on giving consent for transfer etc. and such vague allegations cannot be countenanced.10. there is an allegation made in the affidavit filed in support of the writ petition that the writ petition is to be treated as 'public interest litigation'. it is true that article 226 of the constitution of india is wide enough to enable this court to issue a writ for any purpose and it is not confined to enforcement of fundamental rights. it has been held by the apex court of the land in shri sachidanand pandy and anr. v. the slate of west bengal : [1987]2scr223 , by khalid, j. as follows:.it is only when courts are apprised of gross violation of fundamental rights by a ground or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this court should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. i will be second to none in extending help when such help is required. but this docs not mean that the doors of this court are always open for anyone to talk in. it is necessary to have some self imposed restraint on public interest litigants.on the facts and circumstances of the case on hand, i am of the opinion that this is not a writ petition filed to see enforcement of any public duly and observance of any constitutional or legal provision. to entertain a petition as a 'public interest litigation', there should be a breach of public duly or violation of some provisions of the constitution. in my view, none is present here. as khalid, j. has put it in the abovementioned case, such cases are filed without any rhyme or reasons. to quote the words of khalid, j. in the abovementioned case, it runs thus,.today public spirited litigants rush to courts to file cases in profusion under this attractive name. they must inspire confidence in courts nand among public. they must be above suspicions. sec the facts of this case and the end result....so i am the view that this writ petition cannot be entertained as 'public interest litigation' and accordingly it has to fail.'11. moreover, in my view of the weapon of public interest litigation' as a safeguard must be utilised and invoked by the court with great deal of circumspection and caution. while it is the duty of this court 10 enforce fundamental rights, it is also the duty this court to ensure that the weapon under article 226 of the constitution should not be misused or permitted to be misused. this court has to protect the society from the so-called 'protectors'. as such, i am of the view that this writ petition is legally devoid of any merit or principles of public interest and public protection. such writ petitions will certainly create boottlenecks in courts, which is an abuse of process of this court. in view of that, this writ petition shall stand dismissed.12. if any extension is asked for by any of the students or parents with regard to the cut-off date fixed in the notification, i am sure that the state government will consider it in the proper perspective.

Judgment:
ORDER

K.S. Bakthavatsalam, J.

1. The prayer in the writ petition is as follows:.to issue a writ or order or direction and in particular a writ of certiorari calling upon the production of the order relating to the notice undated made in DIPR/MS/92 Ext. passed by the Government of Tamil Nadu represented by the 1st respondent, quash the same and pass...

2. The petitioner is the father of a student studying in llyear M.B.B.S. in the third respondent college. Obviously, the petitioner has admitted his daughter when the college was under the control of the Government.

3. Originally the third respondent college was run by a Trust and it was taken over by the then Government in 1989. This was challenged by the Trust before this Court. This Court dismissed the writ petition, upholding the takeover of the third respondent college by the Government. However, this Court directed the Government to pay compensation to the trust within a particular period. On appeal, a Division Bench of this Court consisting of Venkataswami and Abdul Hadi, JJ. reversed the order of this Court and upheld the contentions of the Management that the take-over of the college itself is bad. The result is the college run by the Trust, which is called Sri Ramachandra Medical College has to be handed over to the Trust. That judgment has become final. At this stage, the petitioner has come-up to this Court stating that as a parent he would prefer his daughter to study in a Government Medical College, since the Government Medical Colleges are attached to General Hospitals where students can gain more knowledge and experience.

4. To continue the narration after the order of the Division Bench of this Court, it is alleged that Government of Tamil Nadu decided to handover the said college to the third respondent and it was a rude shock to the student community as well as the parents and the students of the said college started agitation against the handing over of the college to the Trust. It is alleged in the affidavit that supporting the agitation by the students of Sri Ramachandra Medical College, medical students all over Tamil Nadu commenced agitation protesting the decision of the Government and demanding the take over by appropriate action. It is also alleged that the police was let loose to suppress the students and the agitators. In view of that the parents of the students of Sri Ramachandra Medical College have formed an Association by name Sri Ramachandra Medical College Parent's Association and the petitioner alleged that he is the Convenor of the said Association. However, it is not a registered Association.

5. At this stage, it is alleged that the Government is resorting to various measures to suppress, defeat and divide the agitating students and one of the methods adopted by the Government according to the petitioner is an announcement made by the Minister for Health in newspapers to the effect that the parents had discussed the matter with the Government and some of them wanted their wards to be transferred to Government Medical College from the third respondent college and the Government has consented. As such an announcement has been made in newspapers that students who jointed the said college in 1990-91 and 1991-92 should give written requisition to the second respondent before 4.9.1992 for such transfer. The application forms will be available at the office of the second respondent. The petitioner alleges that the announcement made by the Minister for Health as published in the newspapers is illegal, mala fide and arbitrary. It is also alleged that this action is against all canons of natural justice and the Notification seeking requisition from the students for transfer from the said Sri Ramachandra Medical College to Government Medical Colleges is contrary to the Indian Medical Council (Amendment) Ordinance, 1992. It is alleged that such transfer cannot be done without the prior approval of the Medical Council of India. It is also stated in the affidavit that the impugned notice has been issued to defeat the agitation of the students and parents. It is also stated in the affidavit that only a very few parents were compelled to go for talks and the decision of the Government was thurst upon them and out of 200 parents/ guardians, 170 persons are with the petitioner. It is also alleged that the decision of the Government is mala fide and the Government is very keen only in breaking the unity and agitation of the students and parents. Just to confuse and divide the students, the Government has come forward with this offer. It is also alleged that the Government has not at all passed any Government Order in this respect and even the impugned notice does not contain the date of issue of the same. It is also stated that the impugned notice is a public anouncement made in newspapers.

6. With these allegations, the petitioner has come up to this Court with the above said prayer. Mr. S. Senthilnathan, learned Counsel for the petitioner strenuously contends that the petitioner is very much interested in his daughter studying in Sri Ramachandra Medical College, but that college should continue to be a Government college. The learned Counsel further states that the notice issued by Minister concerned is not correct as the parents of the students did not meet the Minister concerned and it is a mala fide exercise of power just to defeat the parents and students of the college not to gel into the agitation or continue the agitation. That apart, as per the recent Ordinance issued by the Government of India, consent of the Medical Council is necessary for starting Medical College or increasing these and as such, the learned Counsel placing reliance upon this Ordinance contends that the announcement made by the Minister concerned is impossible as no permission of the Medical Council has been obtained by the Government of Tamil Nadu and as such the announcement itself is mala fide. That apart, the learned Counsel states that this writ petition has been filed in the interests of the students community who are studying in Sri Ramachandra Medical College and on behalf of the parents of the students who are studying in the third respondent college.

7. I have given my careful consideration to the arguments of Mr. Senthilnathan, learned Counsel for the petitioner. 1 may say immediately that I am not convinced that this is not a matter to be entertained in a writ petition by exercising discretionary jurisdiction under Article 226 of the Constitution. It is true that the third respondent college was managed by the Government when the petitioner's daughter was admitted into the college. However, it seems the college has been handed over to the Trust again by the present Government when a Division Bench of this Court has held that the taking over of the college by the Government is bad in law. The result is the order of the Division Bench of this Court has got to be obeyed by the State Government and what all the State Government has done is the implementation of the order passed by the Division Bench of this Court. As I have already stated that it is nowhere alleged in the affidavit that any appeal has been filed against the order of the Division Bench except a statement made before this Court by the learned Counsel that an appeal is being filed before the Apex Court of the land against the order of the Division Bench of this Court, Maybe to, As it is the order of the Division Bench of this Court is binding on me, which has held that the taking over of the college by the Government in 1989 is bad in law, and as such the Government has got to comply with the order of the Division Bench of this Court, which the Government it seems has now complied with by handing over the college to the Trust, that cannot be a subject-matter before this Court, and if any order is passed by this Court, it will amount to reviewing of the order of the Division Bench of this Court. It cannot be done by this Court. The notice which is shown before me, is an announcement made by the Minister for Health in the interests of the students and parents as I can see from the notice. If the students or parents are aggrieved that the college has been handed over to a private Management and if they want to continue their studies they are given an option to joint in a Government Medical College and if they want to continue in the same college, i.e. Sri Ramachandra Medical College they would pay only the fees applicable in other Government Colleges and this has been accepted by the Management. As such, the Government has come out with a Notification just to sort out the issue by way of compromise that such of those medical students, who joined Sri Ramachandra Medical College in 1990-91 and 1991-92 may give it in writing to the second respondent before 4.9.1992 their application seeking such transfer to Government Medical Colleges. Similarly, students in other medical colleges, who seek transfer to Sri Ramachandra Medical College may also apply to the second-respondent. It is made clear in the announcement itself that the requests would be processed as per the guidelines of Medical Council of India. So, from the notice it is very clear that the Government in the interests of the student community has come out with this statement, in my view correctly, that if they want to continue their studies in a private college, they need not pay extra fees to the management. So also if the students do not want to continue their studies in the private college, they can get themselves transferred to any Government Medical College. In my view, this statement cannot be said to be mala fide or arbitrary. I am unable to accept what Mr. S. Senthilnathan means that principles of natural justice has been violated. It is well settled that principles of natural justice cannot be put into straight jacket formula and principle is flexible. It varies from case to case and depends upon the facts and circumstances of each case, nature of right which may be affected. Here is a case where in the matter of taking over of a college by private management, an amicable solution has been given by the State Government and it is for the petitioner either to accept it or reject it. I do not think that it can give rise to a cause of action to come before this Court, especially by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution. It is true that right to education is held to be a fundamental right. But 1 do not think that this fundamental right can be stretched to the extent as a right to study in a private college or Government college. So, on the simple ground that the petitioner has no locus standi in the sense that he has no right to invoke the extraordinary jurisdiction of this Court, the writ petition shall stand dismissed. That apart, the petitioner alleges in the affidavit that the parents have formed an Association and it is an unregistered association, but it has been held by this Court repeatedly that an unregistered association cannot maintain a writ petition.

8. At any rate, since I take the view that this is not a matter to be sorted out in the writ petition and this Court cannot be used so as to come to the aid of the petitioner when the Government has issued a Notification in newspapers with regard to some solution to sort out the agitation. This Court sitting under Article 226 of the Constitution, in my view, should see the interests of the students community as well as the management, to whom the college has been handed over in pursuance of the order of the Division Bench of this Court. To strike a balance, in my view, the Government has taken a right decision by publishing a notice in the newspapers. The contention that this method adopted by the Government is to break the unity of the students and to suppress the agitation of the students and parents, is not appealing to me. This is not a place where such contentions have got to be placed and surely not in a writ court.

9. The Notification which has been published in the newspapers, which is attacked in this writ petition, in my view, do not compel anybody to resort to any method. Any student can act voluntarily according to the Notification. So I am not able to accept the contention that the students and parents are coerced on giving consent for transfer etc. and such vague allegations cannot be countenanced.

10. There is an allegation made in the affidavit filed in support of the writ petition that the writ petition is to be treated as 'public interest litigation'. It is true that Article 226 of the Constitution of India is wide enough to enable this Court to issue a writ for any purpose and it is not confined to enforcement of Fundamental Rights. It has been held by the apex Court of the land in Shri Sachidanand Pandy and Anr. v. The Slate of West Bengal : [1987]2SCR223 , by Khalid, J. as follows:.It is only when courts are apprised of gross violation of fundamental rights by a ground or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this docs not mean that the doors of this Court are always open for anyone to talk in. It is necessary to have some self imposed restraint on public interest litigants.

On the facts and circumstances of the case on hand, I am of the opinion that this is not a writ petition filed to see enforcement of any public duly and observance of any constitutional or legal provision. To entertain a petition as a 'public interest litigation', there should be a breach of public duly or violation of some provisions of the Constitution. In my view, none is present here. As Khalid, J. has put it in the abovementioned case, such cases are filed without any rhyme or reasons. To quote the words of Khalid, J. in the abovementioned case, it runs thus,.Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts nand among public. They must be above suspicions. Sec the facts of this case and the end result....

So I am the view that this writ petition cannot be entertained as 'public interest litigation' and accordingly it has to fail.'

11. Moreover, in my view of the weapon of public interest litigation' as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. While it is the duty of this Court 10 enforce fundamental rights, it is also the duty this Court to ensure that the weapon under Article 226 of the Constitution should not be misused or permitted to be misused. This Court has to protect the society from the so-called 'protectors'. As such, I am of the view that this writ petition is legally devoid of any merit or principles of public interest and public protection. Such writ petitions will certainly create boottlenecks in courts, which is an abuse of process of this Court. In view of that, this writ petition shall stand dismissed.

12. If any extension is asked for by any of the students or parents with regard to the cut-off date fixed in the Notification, I am sure that the State Government will consider it in the proper perspective.