Dismissed

Dr. Gajanan Gaurishankar Sose and Ors. v. State of Maharashtra through Dept of Medical Education and Drugs and Ors.

Bombay HC17 Dec 2013WP/9735/2011

Case brief

AI extract

What is this about?

This bench held that writ petitions filed by doctors claiming recognition for an unrecognized MBBS/Diploma course or compensation were barred by res judicata and constructive res judicata due to a prior Division Bench judgment in WP No. 1875 of 2006 and the subsequent dismissal of the SLP.

What did the court decide?

No reliefs granted; petitions dismissed due to bars of res judicata; no order as to costs.

Dr. Gajanan Gaurishankar Sose and Ors. Vs State of… — Service and Employment | Bombay HC (2013)

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WP9735-11-505-506

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 9735 OF 2011

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Dr. Gajanan Gaurishankar Sose & Ors. ..Petitioners vs. State of Maharashtra & Ors. ..Respondents …....

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Mr. V. M. Thorat for Petitioners. Mr. S. K. Shinde – G.P. for Respondent Nos. 1 and 2. Mrs. S. V. Bharcuha for Respondent No. 3. Mr. Ganesh Gole for Respondent No. 4.

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WITH WRIT PETITION NO. 505 OF 2013

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Dr. Ashok V. Chavan ..Petitioner vs. State of Maharashtra & Ors. ..Respondents

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Mr. Tejas Dande for Petitioner. Mr. S. K. Shinde – G.P. for Respondent Nos. 1 and 2. Mr. Ganesh Gole for Respondent No. 4.

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WITH WRIT PETITION NO. 506 OF 2013

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Dr. Vivek Digambarrao Dande ..Petitioner vs. State of Maharashtra & Ors. ..Respondents

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Mr. Tejas Dande for Petitioner. Mr. S. K. Shinde – G.P. for Respondent Nos. 1 and 2. Mr. Ganesh Gole for Respondent No. 4.

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CORAM : V. M. KANADE, AND M. S. SONAK, JJ.

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DATE : DECEMBER 18, 2013

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P. C .

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1] The three petitions can be disposed of by a common judgment and order.

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2] With some variations, the two main reliefs claimed for by the Petitioners in the present petitions are as follows :

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(a) That the State be directed to take steps to commence / regularise the shorter (condensed) MBBS course by obtaining approvals from the Central Government and the Medical Council of India;

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(b) That in the event this is not possible, the State compensates the Petitioners as also similarly placed students with payment of Rs.50,00,000/- per petitioner / student for having ruined their careers in admitting them to unrecognised course of Diploma in Medicine and Surgery and (condensed) MBBS Course

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3] In the year 1979-80, the State of Maharashtra commenced a

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Diploma Course in Medicine and Surgery and the Condensed MBBS Course subject to approval from the Medical Council of India. Almost 175 students, including the Petitioners were admitted to said course. The State levied and recovered fees of Rs.51,000/- or thereabouts per student. The students completed the course and were also issued certificates of completion. However the Medical Council of India refused to recognise or approve the courses.

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4] The Association of Doctors of D.M.S. Maharashtra as also two such students preferred writ petition no. 1875 of 2006 before this Court (Aurangabad Bench) seeking interalia various reliefs including the directions to the Medical Council of India for the purposes of approving and recognising the courses which the students had already undergone. In the said petition, contentions very similar to those raised in the present petitions came to be raised. It was contended that the State Government by commencing the said courses and inducing the students to undergo the same have ruined their careers. Contentions were raised that the Medical Council of India was not justified in declining recognition and approval based upon the provisions of Indian Medical Council Act 1956 as also the provisions of the Constitution of India.

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5] Ultimately a Division Bench of this Court by judgment and

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order dated 16.07.2007 dismissed the petition by observing thus :

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“ It is also to be noted that the action of the State Government in introducing 'M.B.B.S' (Rural) Course, without the prior sanction from the Medical Council of India, was itself an irregularity. The Medical Council of India cannot be directed to accord permission to such a course, which, according to the Medical Council of India, is permissible in view of regulations framed by it and, therefore, a direction, which would run counter to the legal provisions, cannot be issued. We, therefore, cannot direct to disobey the regulations framed by the Medical Council of India, as has been rightly laid down in one of the judgments of the Apex Court in the case of A.P. Christian Medical College vs. State of Andhra Pradesh and another, reported in (1986) 2 SCC 667, wherein it is observed that :

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“We cannot imagine anything more destructive of the rule of law and then a direction by the Court to disobey the law.”

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6] In the same judgment and order, the Division Bench has considered the Petitioners contention about students being mislead into joining and thereafter completing the course by the State Government. In paragraph 8 of the judgment and order dated 16.07.2007 the Division Bench of this court has observed thus :

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“It appears that in accordance with the policy of the State Government, while granting admission to the students, they were intimated regarding the conditions on which the course can be continued as well as the agreement is also got executed from every individual student. The Information Brochure for the course also contains instructions which clarifies that the continuation of the Course is subject to approval by the Medical Council of India. Not only that, but each of the student was individually communicated regarding the necessity of having approval from Medical Council of India in the matter of completion of the Course. Admissions given to the candidates itself, during the academic year 20042005, were subject to approval to the Course by medical Council of India. The Petitioners, as such, at this stage, cannot make any grievance against the State Government or the authorities in that regard.”

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7] The Association thereafter preferred Special Leave Petition which came to be dismissed by order dated 01.08.2008.

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8] The Petitioners have not contended that the Petitioner No. 1

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in aforesaid writ petition no. 1875 of 2006 was not authorised to represent the interest of the Petitioners herein or that the judgment and order dated 16.07.2007 passed by the Division Bench of this Court and the order dated 01.08.2008 passed by the Supreme

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Court does not apply to their cases. However, it is the case of the Petitioners that the Supreme Court of India at the stage of dismissal of S.L.P. on 01.08.2008 orally suggested to the State of Maharashtra, as a one time measure, to take up the matter with the Central Government and the Medical Council of India, so that some recognition is conferred upon the diploma / certificate obtained by the students.

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9] The Petitioners, in their petitions have conceded that this 'oral suggestion' is not reflected in the order dated 01.08.2008 by which the Supreme Court dismissed the S.L.P. against the judgment and order dated 16.07.2007 in writ petition no. 1875 of 2006.

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10] Based upon the oral suggestion, the Petitioners contend that they pursued the matter with the State Government Authorities for the period between 2008-2011. Ultimately as the State Government Authorities despite acceptance that such oral suggestion was indeed made by the Supreme Court of India at the time of dismissing the S.L.P., have failed to take any effective steps in that regard, hence the Petitioners are constrained to prefer these petitions.

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11] In our judgment, notwithstanding the manner in which the

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Petitioners have paraphrased their prayer clauses, it is apparent that the core issues raised by the Petitioners in the present petitions stand covered by the judgment and order dated 16.07.2007 passed by the Division Bench of this Court in writ petition no. 1875 of 2006. As pointed out earlier, the S.L.P. against the said judgment and order came to be dismissed by the Supreme Court on 01.08.2008. Based upon an oral suggestion made at the stage of dismissal of the S.L.P., it is impermissible for the Petitioners to reagitate the issues which have already attained finality. In our opinion, therefore, the present petitions are clearly barred by the principles of res judicata or at least principles analogous thereto.

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12] Learned counsel for the Petitioners, however submitted that in

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the earlier writ petition there was no claim for compensation. In our opinion that does not make any difference. Admittedly at the stage when writ petition no. 1875 of 2006 came to be filed, the Petitioners had already completed the course in respect of which the Medical Council of India had declined approval and recognition. In the circumstances nothing prevented the Petitioners from raising a claim for compensation in the event they felt they were entitled to any compensation at the stage of filing writ petition no. 1875 of

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In the circumstances, principles of constructive res judicata or in any case principles analogous thereto are clearly attracted.

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13] It is trite that the principle of res judicata is applicable to writ proceedings¹ . When a proceeding based on a particular cause of action has attained finality, the principles of res judicata shall fully apply. The principle of res judicata is a special variety of estoppel. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is administrably wrong. Except in proceedings by way of appeal or review, the parties bound by the judgment are estopped from questioning it as between one another. They may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. Although the principle may appear to be 'technical' it is one based on public policy in order to put an end to litigation. The object of such principle is to uphold the rule of a conclusiveness of judgment as to the points decided earlier in every subsequent proceedings between the same parties. In order to sustain a plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue

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1 1993 Supp (1) SCC 552 H. P. Road Transport Coprn. v. Balwant Singh

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should be between the same parties or parties under whom they or any of they claim² . The bar, which is based upon such public policy cannot be circumvented by urging that a point which was available to be taken at the earlier stage was not taken or argued faintly. In the circumstances, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not.³

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14] Although we agree with the contentions of the learned counsel for the Petitioners that these are indeed unfortunate cases, we are unable to grant any reliefs to the petitioners in the present petitions, for the aforesaid reasons. The Petitions are accordingly dismissed. However there shall be no order as to costs.

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[M. S. SONAK, J.] [V. M. KANADE, J.]

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Chandka

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2 (1979) 4 SCC 163 Ishwardas V State of U.P

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3 (2005) 7 SCC 190 Ishwar Dutt v Land Acquisition Collector & Anr.

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Dr. Gajanan Gaurishankar Sose and Ors. v. State of Maharashtra through Dept of Medical Education and Drugs and Ors.

Case brief

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Dr. Gajanan Gaurishankar Sose and Ors. v. State of Maharashtra through Dept of Medical Education and Drugs and Ors.

Case brief

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What did the court decide?

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