Dr. Dhiraj Kumar Jaiswal vs The State of Bihar

Heard learned Counsel for the parties concerned.

Following reliefs have been sought by the

petitioner in the present writ application, which is evident on

close reading of paragraph 1:-

(i) Issuance of writ of mandamus commanding the

respondent no. 6, i.e. Medical Council of India, to derecognize

Patna Medical College and Hospital, Patna, for imparting a

course, not recognized by the Medical Council of India;

(ii) The Patna University, Patna, should be

derecognized for issuance of certificate of a course, which was

not recognized by the Medical Council of India; and

(iii) The petitioner should be compensated by the

State and the University by awarding a damage cost to the

tune of Rs. 50 lakhs.

So far as the relief nos. (i) and (ii), noted

above, are concerned, Mr. T. N. Maitin, learned Senior

Counsel, appearing on behalf of the petitioner, keeping in

mind the incongruity in the said reliefs, has submitted that he

will not be pressing those reliefs. Evidently thus, the only

relief, which the petitioner is seeking in the present

application, is for grant of compensation to him to the tune of

Rs. 50 lakhs, by the State of Bihar and the Patna University, in

the facts and circumstances of the case.

BACKGROUND FACTS:-

The background facts, which have been pleaded

in the writ application, as the basis for the petitioner''s claim

for grant of compensation, are as under:-

(i) The petitioner holds M.B.B.S. qualification. In

the year 1999, the petitioner had appeared for the test held

by the Department of Health, Government of Bihar, for

admission to post-graduate medical course on the basis of

which he was allowed admission in diploma course in OTO-

Rhino-Laryngology (DLO) in 1999-2000 session in Patna

Medical College and Hospital, Patna. He completed the course

and accordingly he was granted certificated by the University.

There is statement in paragraph 4 of the writ application that

the petitioner had no knowledge that the college was not

recognized by the Medical Council of India.

(ii) The petitioner joined Department of Railway,

Government of India, as Assistant Divisional Medical Officer,

South-Central Railway, and he is working as Senior Divisional

Medical Officer, at Jamalpur Railway Station (at the time of

filing of the present application).

(iii) The petitioner was willing to pursue further

education and in the year 2016, he applied for DNB Training in

the specialization of ENT, in response to an advertisement,

issued by the National Board of Examination, New Delhi (NBE)

for admission to post-graduate, DNB (Secondary) course of

January, 2016. The said test is called "Diploma of National

Board Post-Graduate Centralized Entrance Test" (PGCET).

(iv) The NBE, after holding counselling. Allowed

the petitioner to pursue DNB (Post-Diploma, ENT) Course, at

Manipal Hospital, Bangaluru, and he was admitted to the said

college subject to the verification of his certificates. The

certificate issued in favour of the petitioner by the Patna

University of having passed the examination of DLO was sent

for verification to Medical Council of India to confirm whether

said diploma certificate was recognized by the Medical Council

of India under Indian Medical Council Act or not. His

candidature was, subsequently, turned down to pursue DNB

(Post-Diploma, ENT) Course since the Medical Council of India

informed NBE that Patna Medical College and Hospital, Patna

was not recognized to impart diploma course in DLO.

(v) It is the case of the petitioner that he sought

information from the Patna Medical College and Hospital,

Patna, in this regard under Right to Information Act, 2005.

From the information furnished by the Patna Medical College

and Hospital, Patna, the petitioner learnt, in 2016, that the

course was not recognized by the Medical Council of India.

(vi) It is accordingly the case of the petitioner that

the Patna Medical College and Hospital, Patna, allowed him to

take admission to a course which was not duly recognized by

the Medical Council of India and the Patna University, Patna,

issued, to the petitioner, a certificate which had no recognition

by the Medical Council of India. According to the petitioner,

the State of Bihar, thus, cheated the petitioner because of

which the petitioner had to spend his valuable time and

money in pursuing the said unrecognized diploma course.

STAND OF THE RESPONDENTS:-

The State of Bihar has filed a counter affidavit.

It is the stand of the State of Bihar, inter alia, that the

petitioner cannot take this plea that he did not know whether

Patna Medical College and Hospital, Patna, had recognition in

the concerned course or not. These facts are not hidden truth;

rather, it is known to the general teachers of the Institution

and those who joined and continued their studies in the

Institution. It is also the specific stand, with reference to the

counter affidavit sworn by the Principal of the Patna Medical

College and Hospital, Patna, that the status of recognition of a

course is made to be known to each student at the time of

admission. The petitioner was also aware about this fact that

the said DLO course was not recognized by the Medical Council

of India at that point of time.

These specific averments have not been

controverted by the petitioner by filing its reply or rejoinder.

It is the further case of the State of Bihar that

because the Medical Council of India has not conducted

inspection of the college in relation to recognition of few

diploma courses, the matter of recognition is still pending and

the courses, in question, have been conducted in anticipation

of grant of recognition by the Medical Council of India. It has

been stated that admission in a course is taken by the

concerned Medical College in anticipation of the recognition by

the Medical Council of India and recognition is normally

granted by the Medical Council of India with retrospective date

of admission.

SUBMISSIONS ON BEHALF OF THE PETITIONER:-

Mr. T. N. Maitin, learned Senior Counsel,

appearing on behalf of the petitioner, has submitted that the

petitioner was duped by the State of Bihar, the Patna

University, Patna, and the Patna Medical College and Hospital,

Patna, in respect of admission in diploma course in DLO in the

concerned sessions and he was offered admission, though the

course was not duly recognized. According to him, there was

no notice issued by the University or the State that the said

course was not recognized by the Medical Council of India and,

therefore, the petitioner presumed the course to be duly

recognized since the admission was being offered by a

prestigious college, run by the Health Department of the State

Government of Bihar. He has submitted that the petitioner

continued with this impression till his candidature was rejected

for pursuing higher studies in the year 2016. According to

him, this has caused irreparable loss to the petitioner, which

should be compensated by awarding compensation of Rs. 50

lakhs to be paid by the State Government of Bihar and Patna

University, Patna, since their action has caused great harm,

damage and agony to the petitioner; pecuniary and mental. According to him, the State action is in breach of the

fundamental right, guaranteed under Article 21 of the

Constitution of India. He has placed reliance on Supreme

Court''s decisions, in support of his plea, in the cases of Rudal

Sah v. The State of Bihar and Another (AIR 1983 SC

1086), Nilabati Bahera (SMT) @ Lalita Bahera (Through

the Supreme Court Legal Aid Committee) v. State of

Orissa and Others (AIR 1993 SC 1960), S. Nihaal

Ahamed v. The Dean, Velammal Medical College

Hospital and Research Institute and Others, reported in

(2016) 1 SCC 662 and Ramawati Kuer v. The State of

Bihar and Others, reported in 2004 (4) PLJR 307.

SUBMISSION ON BEHALF OF THE STATE:-

Learned Counsel appearing on behalf of the

State, countering the submission advanced on behalf of the

petitioner, has submitted firstly that a claim of compensation

for alleged damaged should not be entertained in a proceeding

under Article 226 of the Constitution of India. He has also

submitted that this is not an admitted fact that the petitioner

was not knowing that the said diploma course was not

recognized.

DISCUSSION AND CONCLUSION:-

I have carefully gone through the pleadings on

record and I have given anxious considerations to the

submissions advanced on behalf of the parties. I have my

three reasons to reject the relief sought for in the present writ

application.

The first and the foremost is that there is

specific stand taken in the counter affidavit filed on behalf the

State of Bihar that it was within the knowledge of the

petitioner that the said course was not recognized by the

Medical Council of India at the particular point of time. The

petitioner has stated in the writ application that he did not

have any knowledge as to whether the course, which was

offered to him, was recognized by the Medical Council of India

or not. It is not easy to accept the plea being taken by the

petitioner, who at the time of admission to the course, in

question, was already holding an M.B.B.S. degree, that he

would not know the status of recognition of the course.

Further, it is not his case that there was any representation on

the part of the State of Bihar or the Patna Medical College and

Hospital, Patna, showing the said course to the recognized by

the Medical Council of India. He has also not denied the stand

of the State of Bihar that normally recognition is granted by

Medical Council of India retrospectively.

Secondly, except the fact that the petitioner''s

candidature to take DNB (Post-Diploma, ENT) course was

rejected by Manipal Hospital, Bangaluru, there is no pleading

that he suffered any actual monetary or otherwise loss

because of that. The sole plea, which is being taken on behalf

of the petitioner, is that the denial of admission has spoiled his

career. On the basis of such vague plea, in my opinion, no

compensation for damages can be awarded in Public Law Torts

in a writ proceeding under Article 226 of the Constitution of

India. Thirdly, the claim of the petitioner that he should be

awarded compensation of Rs. 50 lakhs for the damage caused

to him does not disclose any basis for his evaluation of the

said amount of compensation. What formulae he has applied,

what calculation he has done and what are the determinative

factors for arriving at the said figure of Rs. 50 lakhs, is

completely opaque.

Reliance placed by learned Senior Counsel for

the petitioner on Supreme Court''s decision, in the cases of

Rudal Sah (supra) and Nilabati Bahera (supra), is of no

avail for seeking specific direction in a writ proceeding to the

State-respondents for demand of compensation against

damages. The said decisions of the Supreme Court enable

award of compensation by constitutional courts in writ

jurisdiction in case of damages suffered by a person because

of administrative mal-administration, misfeasance or non-

feasance. These decisions do not lay down a law that an illegal

action by the executive leading to damage suffered by a

person must have the consequence of award of compensation

by constitutional courts, exercising writ jurisdiction under

Article 226 of the Constitution of India. The said decisions of

the Supreme Court do not hold writ jurisdiction to be a

substitute to entertain all kinds of claims for compensation

against damages caused by State action in place of ordinary

civil jurisdiction of the Courts.

Learned Senior Counsel has also relied on

Supreme Court''s decision, in the case of S. Nihaal Ahamed

(supra), in support of the plea that the petitioner is entitled for

compensation in the writ jurisdiction against damages. In the

said case, the Supreme Court had arrived at a definite

conclusion that despite being there in the merit list, the

appellants of that case could not secure admission. The facts

of the present case are distinguishable on the plain ground

that in the present case there is specific stand taken on behalf

of the State-respondents that the petitioner was knowing that

the course, in question, was not recognized by the Medical

Council of India. There is no specific denial by the petitioner of

this averment made by the State respondents in the counter

affidavit.

The case of Ramawati Kuer (supra) cannot

be applied in the facts and circumstances of the case for the

same reason and the additional reason that that was a case of

death where the Court applied the principles underlying Motor

Vehicles Act, 1988, and Worksmen''s Compensation Act, 1923

for the purpose of determination of the amount of

compensation. In the present case, in the absence of any

pleading, no such prayer for award of compensation can be

maintained.

Accordingly, I do not find any merit in this

application, which stands dismissed.