BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.22188 of 2011
M.P.Nos.1 and 2 of 2011
Sree Mookambika Institute of Medical Sciences,
Velayuthan Pillai Memorial Hospital Complex,
run by Padanilam Welfare Trust,
Kulasekharam, Kanyakumari District. .. Petitioner
1.The Union of India,
represented by its Secretary,
Department of Health,
2.The Medical Council of India,
Pocket 14, Sector 8
Dwaraka, New Delhi-110 077
rep by its Secretary.
3.The State of Tamil Nadu,
rep by its Secretary,
Department of Health & Family Welfare,
Fort St. George, Chennai-600 009.
4.The Director of Medical Education,
Directorate of Medical Education,
162,Poonamallee High Road,
Kilpauk, Chennai-600 010.
5.Tamil Nadu Dr. M.G.R. Medical University,
P.B.No.1200, No.69,Anna Salai,
Guindy, Chennai-600 032.
rep by its Registrar. .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned proceedings issued by the second respondent Medical Council of India vide Ref.No.MCI-68(22)/2011-Med/32097 dated 25.08.2011 and its consequent proceedings in Ref.No.MCI-68(22)/2011- Med/35922 dated 19.9.2011, quash the same and further to direct the second respondent Medical Council of India to process forthwith the petitioner's application dated 14.04.2011 towards the grant of Letter of Permission by the first respondent and to submit its recommendations to the first respondent Central Government for starting ten additional Post Graduate Courses in Medicine and Surgery in the petitioner's college from the academic year 2012-2013.
!For Petitioner ... Mr.Isaac Mohanlal
^For Respondents... Mr.V.P.Raman for R-2
Mr.P.Sanjay Gandhi, AGP for RR3 and 4
for Ms.Narmadha Sampath for R-5
- - - -
This writ petition was originally filed before the Principal Bench by the writ petitioner, who is running a medical college at Padanilam, Kulasekharam, Kanyakumari District. In the writ petition, they were seeking to set aside an order passed by the Medical Council of India (for short MCI), the second respondent, dated 25.08.2011 and the consequential proceedings, dated 19.09.2011. After setting aside the same, they seek for the grant of Letter of Permission by the first respondent Central Government for starting 10 additional Post Graduate Courses in Medicine and Surgery in the petitioner's college from the academic year 2012-13.
2.Even though the said matter fall within the exclusive jurisdiction of the Madurai Bench, for reasons best known the petitioner moved the Principal Bench. When it came up for admission on 27.9.2011, Paul Vasanthakumar, J., directed notices to be served on the Standing Counsel for the Medical Council of India as well as Dr.M.G.R. Medical University. Insofar as the third and fourth respondents, i.e., the State of Tamil Nadu and the Director of Medical Education, the Additional Government Pleader was directed to take notice. The matter was further listed on 11.10.2011, on which date for the Medical Council of India, Mr.V.P.Raman took notice, Mr.Sanjai Gandhi, learned Additional Government Pleader took notice for respondents 3 and 4 and Ms.Narmada Sampath, learned Standing for Dr.M.G.R.Medical University took notice. It was directed to be listed after two weeks. Subsequently, the matter was adjourned for filing counter. But however, on 16.11.2011, it was informed by the counsel for the MCI that the matter will have to be heard only by the Madurai Bench. Therefore, it was directed to be transferred to the Madurai Bench after getting orders from the Hon'ble Chief Justice. Thereafter, as per the order of the Hon'ble Chief Justice, dated 21.11.2011, the matter was transferred to the Madurai Bench. When the matter was placed before the Administrative Judge, it was directed to be posted before this court on being specially ordered.
3.Heard the arguments of Mr.Isaac Mohanlal, learned counsel for the petitioner, Mr.V.P.Raman, learned counsel for the Medical Council of India, Mr.C.Karthik, learned counsel representing Ms.Narmada Sampath, learned counsel for Tamil Nadu Dr.M.G.R.Medical University and Mr.P.sanjay Gandhi, learned Additional Government Pleader for respondents 3 and 4.
4.By the impugned order, dated 25.08.2011, the Board of Governors who were appointed in supersession of the Medical Council of India, informed that the petitioner has sent their application dated 14.4.2011 followed by a letter dated 30.6.2011 for grant of Consent of Affiliation of the University for starting 10 Post graduate Courses. But the Consent of Affiliation issued by the Tamil Nadu Dr.MGR Medical University dated 30.6.2011 was submitted to the MCI after the cut off date, i.e., 31.5.2011. Therefore, the Board of Governors decided to disapprove and return the application. Accordingly, their application was returned. The petitioner sent a further representation on 2.9.2011 to the Board of Governors stating that the petitioner college, I.e. Shri Mookambika Institute of Medical Sciences was started during the year 2006-07. The first batch of its students appeared for MBBS Part- II examination in February, 2011. It was also inspected by an inspection team appointed by the MCI for the grant of recognition during the period of practical examinations, i.e., 12.02.2011 to 14.02.2011. The petitioner college had also started PG courses in pre-clinical and para clinical subjects in May, 2011. The College is in a rural area and rendering service to the rural population including the nearby tribals. They have applied to the Tamil Nadu Dr. MGR Medical University for a Letter of Consent of Affiliation to start PG courses in 10 various specialities on 30.11.2010 and 14.04.2011. They have also sent a reminder letter to the University on 13.5.2011. Finally, they were given the Consent of Affiliation from the University only on 30.6.2011.
5.They have also submitted an application for starting PG courses in various clinical subjects to the Government of India and to the Medical Council of India on 14.4.2011 and 13.5.2011 . But they have not received any reply from the Government. The letter of Consent of Affiliation given by the university was submitted to the MCI on 30.6.2011. They have also received an acknowledgement from the MCI accepting their demand draft towards the inspection fee for starting PG courses. It was two months after submissions of the demand draft and the letter of consent, the MCI informed them about their disapproval. The delay was not made purposely. Even before the University gave the letter of consent on 30.6.2011, the college had submitted its application in advance. The Letter of Consent of Affiliation is a formal permission valid for only one year. The University will grant provisional affiliation after getting the Letter of Permission from the MCI. If for some reasons, the MCI did not approve their application, they will have to get a fresh letter of Consent of Affiliation only for the next academic year. Therefore, they requested condoning of one month delay in submitting the letter of consent and to reconsider their application. They have also requested for inspecting their college for starting PG courses. If the delay of one month is not condoned, for no fault of their, they will be losing one year. They have already appointed staff and created infrastructure facilities. This letter was placed before the Board of Governors. It was informed that since the application was received beyond the prescribed date, i.e., 31st May of the year, it cannot be considered. Therefore, they were directed to apply afresh in the next academic year for starting the PG courses. Challenging these two communications, the writ petition came to be filed.
6.It was the stand of the petitioner that they have spent around Rs.15 crores for creating additional infrastructure facilities and towards appointment of faculty and maintenance of additional infrastructures. They are recurring expenditure not less than Rs.50 lakhs every month. The MCI constituted under the Indian Medical Council Act, 1956, under Section 10-A read with Section 33, had framed regulations with the previous sanction of the Central Government for the grant of permission for staring new or higher courses including PG degrees and diplomas . The Regulation is known as The opening of a 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) Regulations, 2000 (for short Regulations).
7.Regulation 3 prescribes qualifying criteria, which reads as follows: "3.Qualifying criteria :
The medical college/institution shall qualify for opening a New or Higher Course of Study or training (including a post-graduate Course of Study or Training) in the medical colleges/institutions if the following conditions are fulfilled :-
1.(1)The Medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Postgraduate Course; however, the Medical College/Institute which is not yet recognized by the Medical Council of India for the award of MBBS Degree may apply for starting of a Postgraduate Course in preclinical and para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Community Medicine at the time of third renewal - I.e., along with the admission of fourth batch for the MBBS Course.
(2)The Central Government may exempt any such existing/proposed nonteaching specialist institution or autonomous body owned or managed by the Central Government / State Government from fulfilling the criteria specified in sub-clause (1).
2.That Essentiality Certificate in the prescribed format regarding no objection of the State Government / Union Territory administration for 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) in the medical college/institution and availability of the adequate clinical material as per the Council Regulations have been obtained by the applicant from the concerned State Government / Union Territory administration, as the case may be.
3.The Consent of Affiliation in the prescribed format with respect to 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) has been obtained by the medical college/institution from the University to which it is affiliated." (Emphasis added)
8.Regulation 7 granting permission and it reads as follows: "7.Grant of Permission : The Central Government on the recommendations of the Council, may issue a Letter of Intent for opening a new or higher course of study in the medical college/institution with such conditions or modifications in the original proposal as may be considered necessary. The formal permission will be granted after the above conditions and modifications are accepted and the performance bank guarantee for required sums are furnished by the medical college/institution and after consulting the Council" (Emphasis added)
9.Therefore, as per Regulation 3.2 of 2000 Regulations, the applicants should seek for the Consent of Affiliation from the University to which the College is affiliated. Therefore, When the petitioner college submitted their application, they did not enclose the consent of affiliation. Hence the application was liable to be rejected as it is deficient and that the statutory criteria was not followed. Therefore, the MCI had returned the application under Section 10-A to the Union of India recommending its disapproval. According to the petitioner, a time frame has been fixed for various stages of processing the application. An application can be received by the Central Government under Section 10-A anywhere between 1st April to 30th April. It has to be forwarded to the MCI for technical scrutiny upto 31st May. The recommendation by the MCI to the Central Government for the issue of Letter of Permission upto 31st January and that the issue of letter of permission by the Central Government upto 28th February. The petitioner had given their application to the Central Government and to the MCI precisely on 14.4.2011 for starting the academic year 2012-2013. They have also paid a demand draft for inspection and processing fee. The University delayed the matter in giving letter of affiliation only on 30.6.2011. The university also had marked copies to the Central Government and to the MCI. The same has also been given to the MCI on the same day. The MCI had registered their application along with the fee receipt on 12.7.2011 and advised the petitioner to track the progress of the application by visiting the website of MCI. Thereafter, it is stated that the college had created full infrastructure facilities, incurred heavy expenditure and invested huge amount. For the fault of the University, they should not be blamed. The scrutiny of their application form along with the consent of affiliation will not cause any prejudice to the MCI.
10.Mr.Isaac Mohanlal, learned counsel for the petitioner referred to a judgment of the Supreme Court in Charles K.Skaria and others Vs. C.Mathew (Dr) and others reported in (1980) 2 SCC 752 for contending that qualification if acquired before the relevant date, then the merit factor cannot be invalidated. The delay in getting the certified copy cannot result in defeating the application. There was nothing improper in a selection committee requesting the concerned university to inform them of the factum and get the proof straight by communication therefrom. He relied on the passages found in paragraphs 20,23,24 and 25 from the said judgment, which reads as follows: "20.....But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress an
23.We are aware that when a statute vests a public power and conditions the manner of exercise of that power then the law insists on that mode of exercise alone. We are here unconcerned with that rule. A method of convenience for proving possession of a qualification is merely directory. Moreover, the prospectus itself permits government to modify the method, as the learned Single Judge has pointed out. In this view, we see nothing objectionable with the government directive to the selection committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas were not attached to the application for admission. A hundred examples of absurd consequences can be given if the substance of the matter were to be sacrificed for mere form and prescriptions regarding procedures.
24.It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and Government Orders from public offices. This frustrating delay was by-passed by the State Government in the present case by two steps. Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and common sense is not inimical to interpreting and applying the guide-lines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks.
25.We thus reach the conclusion that the three candidates who had been eventually admitted by the selection committee could not be ousted merely for the reason that the certificate of diploma had not been produced together with the application for admission. Nor, indeed, could government be faulted for issuing a directive to the selection committee that applications from students of the diploma course could be considered subject to the condition that they would "produce the diploma certificates before finalising the selection to post- graduate courses". The equity of this instruction of the government comes into bold relief when we realise that no party in this Court has a case that the candidates admitted by the selection committee did not secure a diploma in opthalmology." (Emphasis added)
11.The learned counsel further referred to a subsequent judgment of the Supreme Court in Dolly Chhanda v. Chairman, JEE reported in (2005) 9 SCC 779 wherein the earlier ruling was quoted and followed. The following passage found in paragraph 7 was relied on :
"7.The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature." (Emphasis added)
12.Thereafter, the learned counsel referred to a judgment of the Supreme Court in Dental Council of India Vs. S.R.M. Institute of Science & Technology and another reported in (2004) 9 SCC 676 for reinforcing his argument that in that case, the High Court gave a direction to complete the processing of application including inspection even in the absence of permission or essentiality certificate from the State Government in terms of the regulations framed by the Dental Council of India and finally, submitted that if subsequently the essentiality certificate issued by the State Government was furnished within eight weeks, the proposal of the college to start an higher course or a new course shall be processed by the DCI and the Government of India. Therefore, a similar direction can be given.
13.He also referred to a judgment of this court in Asan Memorial Association (Regd.) Vs. Government of India reported in 2011 (2) CWC 603, wherein relaxation from the cut off date was given on the basis of certain rulings of the Supreme Court. It was further stated in paragraphs 16 to 18 of the order which reads as follows:
"16.A similar issue relating to rejection of approval for the increase of intake of a Medical College was considered by the Division Bench of the Delhi High Court in L.P.A. No.544 of 2011 in its order dated 21.7.2011 and a direction was issued to the Medical Council of India for re-inspection and pass fresh orders after affording opportunity of hearing by the Competent Authority. The said Division Bench order of the Delhi High Court was challenged before the Honourable Supreme Court in S.L.P.No.16233 of 2011 and by order dated 17.6.2011 and the said order was confirmed by stating as follows:
"(b)The Council shall be at liberty to consider the Application in accordance with the Rules, Regulations and the parameters provided for grant of approval of such colleges. If as per the wisdom of the Council, conditions are not satisfied it will be at liberty to decline the approval. (c)We extend the period by two weeks for considering and granting/refusing the approval to the Medical College. The Council will be at liberty to inspect the College through Experts as contemplated under the Rules."
17.Following the said judgment, this Court in W.P.No.16298 of 2011, dated 5.8.2011 set aside the rejection order of Medical Council of India and remitted the matter to the Respondent in that Writ Petition to re-inspect and pass a fresh orders after giving proper opportunity to the management. The said order is also accepted by the Medical Council of India, as no Appeal is filed before the Division Bench. The said order was again followed in a Dental College matter in W.P.No.16497 of 2011, by order dated 9.8.2011 and in the said judgment, the scope of opportunity of hearing provided under Section 10-A(4) of the Dentists Act, 1948 was considered. Considering the issue raised in the said Writ Petition viz., Section 10-A(4) of the Dentists Act, 1948, it was held as follows:
"... ..... the Central Government may, after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person, authority or institution concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under sub-section (1) and Proviso to the said Section 10-A(4) states that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognised dental qualification a reasonable opportunity of being heard.
7.Admittedly, the First Respondent before passing the impugned order, has not given any opportunity of hearing to the Petitioner. The Inspection Report was on the basis of the inspection conducted on 14.6.2011, which has not been furnished to the petitioner before rejecting the request by the First Respondent. Hence, the impugned order is set aside and the matter is remitted to First Respondent to give a personal hearing to the petitioner and if the Dental Council of India is to visit the college and make a re-inspection, the learned Senior Counsel for the petitioner submitted that the petitioner is also willing to remit the Inspection Fee, within a period of one week from today. ......"
No Appeal against the said order is also preferred by Respondents 1 & 2 herein. The decision rendered by the Honourable Supreme Court in the decision reported in Mridul Dhar (5) v. Union of India, 2005 (1) CTC 764 (SC) : 2005 (2) SCC 65, was recently considered by the Supreme Court in a recent decision reported in Christian Medical College v. State of Punjab and others, 2010 (12) SCC 167, and directed approval of admission of candidates beyond cut off date considering the facts and circumstances of the case.
18.Applying the said judgments as well as the facts and circumstances of this case, the impugned orders are set aside and Respondents 1 & 2 are directed to reconsider the issue, if necessary by making revisit of the institution giving direction to the Petitioner to pay inspection fee or give personal hearing to the Petitioner by the First Respondent based on the available material and pass appropriate orders. The last date for admission of B.D.S. Course for the academic year 2011-2012 being 30th September, 2011, the said exercise is directed to be complied with by Respondents 1 & 2, within a period of two weeks from today." (Emphasis added)
14.Though the learned judge referred to a judgment of the Supreme Court in Christian Medical College v. State of Punjab reported in (2010) 12 SCC 167, he has misread that judgment and it does not help the case of the petitioner as the fact situation is entirely different as reflected in paragraphs 4 and 5, which reads as follows:
"4.Several contentions were urged by the appellant resisting the said petitions. Ultimately the High Court by a common judgment dated 4-1-2006 allowed the two writ petitions with the following directions:
"(1) The admission of the private respondents* to the MBBS course at CMC for the academic year 2005-2006 is protected.
(2) The petitioners cannot be granted admission in MBBS classes in the current academic year after 30-9-2005, as their admission would be a midstream admission which has been prohibited by the Hon'ble Supreme Court. (3) The petitioners will be admitted to the MBBS course at CMC for the academic session 2006-2007 against the management quota seats in terms of the directive contained in para 35(11) of Mridul Dhar (5) judgment1, as it has exceeded its quota during the academic year 2005-2006.
(4) CMC would compensate each of the petitioners with an amount of Rs. 2 lakhs each for the loss of one year, for the mental tension and for economic loss caused to them.
(5) CMC is burdened with costs of Rs. 2 lakhs to be deposited, with Baba Farid University of Health Sciences, Faridkot, within three months from today, for being utilised towards students welfare fund.
5. The said judgment is challenged in these appeals by special leave. Though several grounds were urged in the special leave petitions at the time of hearing, the learned counsel for the appellant College submitted that in compliance with the judgment of the High Court, the appellant has admitted the six writ petitioners (Respondents 4 and 5 in the first matter and Respondents 4 to 7 in the second matter) for the academic session 2006-2007 against the management quota, and they have been prosecuting their studies without hindrance and they will not be disturbed by the appellant. As a consequence, there is no need to examine the several contentions urged in the appeals on merits challenging the judgment of the High Court." (Emphasis added)
15.The Supreme Court exercised its extraordinary power to cancel the compensation ordered towards mental tension and economic loss for the students who were denied admission, largely because by the time when the matter came up, students were allowed to be admitted by the college and were continuing their courses. Excepting for few directions granted under the power vested under Article 142, the Supreme Court never diluted the time frame prescribed in Mridul Dhar's case.
16.The Supreme Court in Mridul Dhar (5) v. Union of India reported in (2005) 2 SCC 65, in paragraphs 14 and 35 held as follows : "14.The academic session commences between 1st August and 31st August and the last date for joining MBBS/BDS courses is 30th August. However, students can be admitted against vacancies arising due to any reason by 30th September. The date 30th September is not for normal admission but is to give opportunity to grant admissions against stray vacancies. The adherence to the time schedule by everyone is paramount for the timely grant of admissions, commencement of academic session and for closure of the admissions after 30th September each year. .....
35.Having regard to the aforesaid, we issue the following directions:
1 to 13 omitted
14.Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.
15.Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with."
17.Mr.V.P.Raman, learned counsel for the MCI referred to the very same judgment of the the Supreme Court in Dental Council of India v. S.R.M. Institute of Science & Technology reported in (2004) 9 SCC 676 relied on by the petitioner and stated that the law laid down therein is exactly reflected in paragraph 10 of the order, which reads as follows:
"10.In this case, the High Court made an interim order to complete the processing of the application including inspection even in the absence of the permission or essentiality certificate from the State Government in terms of the Regulations framed by the Dental Council of India. The process of the courts or the process of law should not be allowed to subvert the law. In cases of recognition of dental colleges or starting of higher courses, this Court has in several cases including Islamic Academy of Education v. State of Karnataka2, State of Maharashtra v. Indian Medical Assn.3 etc. held that they are of mandatory character and have got to be complied with. When that is the position in law, the High Court ought not to have made an interim order to process the application even in the absence of the permission or essentiality certificate because the application will not be complete without being accompanied by permission or essentiality certificate by the State Government along with certain other documents. An incomplete application cannot be processed either by the Central Government or the Dental Council. The argument advanced on behalf of the respondents will set at naught the law that in certain cases the courts need not insist on production of permission or essentiality certificate of the State Government, particularly, when the regulations insist upon the same. To decide such a matter even in the absence of the Dental Council and the State Government as if they have no role to play in the matter is only to bypass the law, when statutory duties have been assigned and each one of those authorities has got a separate role to play. It may be that the Government of India takes the ultimate decision in the matter but to state that these authorities only aid the Government of India and hence it is not necessary to make them a party to the proceedings is not at all appropriate or acceptable to us. ...." (Emphasis added)
It was only because of the interim order passed by the High Court, a peculiar direction was given and that cannot become a precedent. Such a direction by the Supreme Court referrable to Article 142 is not available to the High Court.
18.The very same passage was quoted by a division bench of this court presided by A.K.Ganguly, C.J (as he then was) in Medical Council of India Vs. SRM University (MANU/TN/1376/08) in W.A.No.1413 of 2008, dated 5.12.2008, wherein after quoting the passage, it was held that it was mandatory that the application should be complete in all aspects.
19.The counsel further referred to a judgment of the Supreme Court in Govt. of A.P. v. Medwin Educational Society reported in (2004) 1 SCC 86. In that case, the Supreme Court dealt with the scope of essentiality certificate to be given by the respective State Government and the need to comply with the requirements in all respects and also the scheme framed under the Act. Therefore, a reference was made to paragraphs 23 to 27 of the said judgment which reads as follows:
23.It is not in dispute that one of the qualifying criteria to render an association eligible for permission to set up a new medical and dental college is to the following effect:
"Essentiality certificate regarding the desirability and feasibility of having the proposed medical college/dental college at the proposed location has to be obtained by the applicant from the respective State Governments or the Union Territory Administration and that the adequate clinical material is available as per the Medical Council of India's requirements."
24.The statutory requirements as laid down in the Act and the Regulations are, therefore, required to be complied with before application filed by the person or association for setting up a medical college is taken up for consideration.
25.It is not in dispute that the Medical Council of India on receipt of such application from the Central Government verifies the contents thereof, inter alia, by conducting physical inspection of the institution for the purpose of making a recommendation to the Central Government for issuance of a letter of intent to the applicant towards establishing a medical college. A further inspection is carried out for making recommendations for renewal of the permission, in the event the same is granted by the Central Government on an annual basis.
26.However, in the matter of implementation of the statutory scheme for grant of permission and annual renewal, the Medical Council of India experienced difficulties and it came across cases where the colleges despite grant of initial permission could not provide the infrastructure, teaching and other facilities as a result whereof the students who had already been admitted suffered serious prejudice. Only with a view to overcome the said situation, the 1999 Regulations provided for grant of essentiality certificate which is in the following format:
Subject: Essentiality Certificate
Government of ...
The Department of Health
The desired certificate is as follows:
(1) No. of institutions already existing in the State. (2) No. of seats available or number of doctors being produced annually. (3) No. of doctors registered with the State Medical Council. (4) No. of doctors in government service.
(5) No. of government posts vacant and those in rural/difficult areas. (6) No. of doctors registered with employment exchange. (7) Doctor-population ratio in the State.
(8) How the establishment of the college would resolve the problem of deficiencies of qualified medical personnel in the State and improve the availability of such medical manpower in the State.
(9) The restrictions imposed by the State Government, if any, on students who are not domiciled in the State from obtaining admissions in the State be specified.
(10) Full justification for opening of the proposed college. (11) Doctor-patient ratio proposed to be achieved.
The (name of the person) ... has applied for establishment of a medical college at ... On careful consideration of the proposal, the Government of ... has decided to issue an essentiality certificate to the applicant for the establishment of a medical college with ... (no.) seats. It is certified that:
(a) The applicant owns and manages a 300-bedded hospital which was established in ...
(b) It is desirable to establish a medical college in the public interest. (c) Establishment of a medical college at ... by ... (name of the society/trust) is feasible.
(d) Adequate clinical material as per the Medical Council of India norms is available. It is further certified that in case the applicant fails to create infrastructure for the medical college as per the MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government.
(signature of the competent authority)"
27.Grant of the said certificate in the prescribed form, therefore, emanates from the scheme framed under the parliamentary legislation. The said form is a part of the Regulations which are required to be considered in the light of the parliamentary Acts."
20.He further referred to a judgment of the Supreme Court in K.S. Bhoir v. State of Maharashtra reported in (2001) 10 SCC 264 for contending that so long as the requirement under Section 10-A of the MCI Act is not complied with, no permission can be granted by the Central Government. The Central Government without compliance of the Act and regulations, cannot grant any permission without recommendation of the MCI. For this purpose, reliance was placed upon the paragraphs 8,9 and 11 of the said judgment, which reads as follows: "8.Coming to the first question, since long time past, establishing of a medical college and medical education therein are governed by the Indian Medical Council Act, 1956 (hereinafter referred to as "the Act") and the Dentists Act, 1948. Despite there being such provisions, it was experienced that a large number of persons and institutions established medical colleges without providing therein the minimum necessary and proportionate infrastructure i.e. teaching and other facilities required for them. As a result it was found that there was sharp decline in the maintenance of higher standard of medical education. In order to put a check on unregulated mushroom growth of medical colleges and maintain high standard of medical education, it was thought to bring more stringent provisions in the Act. With the aforesaid view of the matter, in the year 1993, Sections 10-A, 10-B and 10-C were inserted in the Medical Council Act by amending Act 31 of 1993. Similarly, the provisions of Sections 10-A, 10-B and 10-C were also incorporated in the Dentists Act, 1948. Sub-section (1) of Section 10-A of the Act provides that no person shall establish a medical college or no medical college shall open a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of the Act. Sub-section (2) thereof provides that every person or medical college desirous of opening a medical college or increase its admission capacity in any course of study or training, including a postgraduate course of study or training shall submit to the Central Government a scheme prepared in accordance with the provisions of the Act and the Central Government shall refer the said scheme to the Medical Council for its recommendation. Sub-section (3) of Section 10-A further provides that on receipt of such a scheme by the Council, it may obtain such other particulars, as may be considered necessary and consider the said scheme having regard to the factor referred to in sub-section (7) of Section 10-A of the Act and send its recommendations to the Central Government. Under sub-section (4) of Section 10-A, the Central Government, on receipt of the recommendation of the Medical Council is empowered to either approve or disapprove the scheme. It may grant or refuse permission to open a medical college or increase its admission capacity. If it is found that the scheme is not in conformity with the provisions of the Act and Regulations framed thereunder, it may refuse to accord permission to increase the admission capacity in any course of study or training. Section 33 of the Act empowers the Medical Council to make regulations for carrying out the purposes of the Act. The Medical Council, in exercise of power conferred by Section 33 read with Section 10-A of the Act, has framed regulations known as "the Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993" (hereafter referred to as "the Regulations"). The said Regulations provide for eligibility criteria to be complied with even for making an application and part of the said Regulations deal with the requirements to be complied with when any medical college applies for increase in admission capacity in the college. A perusal of the provisions of Section 10-A read with the Regulations shows that it is mandatory on the part of the institution or management desirous of increasing its admission capacity in any course of study to submit a scheme complying with the provisions of sub- section (7) of Section 10-A and the requirements envisaged under the Regulations. If any of the infrastructure facilities, as required either under sub-section (7) or under the Regulations are absent, it is open to the Central Government to refuse permission for increase in the admission capacity in any course of study in a medical college. The object of compliance with requirements mentioned in sub-section (7) of Section 10-A and the Regulations is to ensure the maintenance of highest standard of education. In Medical Council of India v. State of Karnataka1 and Preeti Srivastava (Dr) v. State of M.P.2 it was held that the Regulations framed by the Medical Council under Section 33 of the Act are mandatory. In Medical Council of India v. State of Karnataka1 while dealing with the admission made in excess of intake capacity fixed by the Council, this Court observed thus: (SCC p. 157, para 29)
"29. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study."
The compliance with the requirements under the Act and the Regulations being mandatory, in the absence of their compliance, no permission can be granted by the Central Government for increase in admission capacity in any course in any medical college. In the present case, the State Government sought one-time increase in admission capacity in various medical colleges on the premise that medical colleges possessed all the facilities. This was not sufficient. What was required, was that medical colleges desirous of one-time increase in admission capacity should have submitted a scheme prepared in accordance with the Act and the Regulations to the Central Government. No such scheme was submitted to the Central Government and the Medical Council has no occasion to verify the sufficiency of the facilities and other requirements. There being no compliance with requirements under the Act, the Central Government was justified in refusing the permission for one-time increase in the admission capacity in the medical colleges. We do not, therefore, find any infirmity in the order of the Central Government when it refused to grant permission to the State Government to have one-time increase in admission capacity in Medicine and Dentistry in various medical colleges located in the State of Maharashtra.
9.It was then urged by the learned counsel appearing for the appellants that the provisions of Section 10-A do not prohibit the possibility of one-time enhancement of intake capacity for admission to medical colleges and, thus, permission ought to have been granted by the Central Government for such a one- time enhancement or creation of additional number of seats beyond 150 in view of the extraordinary situation and the refusal on the part of the Central Government to grant such permission was erroneous. It was also argued that sub- sections (1) to (5) of Section 10-A being merely procedural, sub-section (7) of Section 10-A providing for factors to be taken into consideration for an increase in the admission capacity in a medical college has an overriding effect on the procedural provisions of sub-sections (1) to (5) and, therefore, the Central Government committed an error in refusing to permit one-time increase in admission capacity in Medicine and Dentistry courses in the medical colleges. We do not find any merit in the submission. Sub-section (1) of Section 10-A is a substantive provision in itself and begins with non obstante clause "notwithstanding anything contained in the Act...", it means there is a prohibition in the matter of an increase in the admission capacity in a medical college unless previous permission of the Central Government is obtained in accordance with the recommendation of the Medical Council of India. The entire scheme of Section 10-A of the Act has to be read in consonance with other sub- sections to further the object behind the amending Act. The object being to achieve the highest standard of medical education. The said objective can be achieved only by ensuring that a medical college has the requisite infrastructure to impart medical education. As noticed earlier, the object of amending Sections 10-A, 10-B and 10-C was for a specific purpose of controlling and restricting the unchecked and unregulated mushroom growth of medical colleges without requisite infrastructure resulting in decline in the maintenance of highest standard of education. The highest standard of medical education is only possible when the requirement of provisions of Section 10-A and the Regulations are complied with. It has been experienced that unless there is required infrastructure available in the medical college, the standard of medical education has declined. Unless an institution can provide complete and full facilities for training to each student who is admitted in various disciplines, the medical education would remain incomplete and the medical college would be turning out half-baked doctors which, in turn, would adversely affect the health of the public in general. Thus, for every increase in the admission capacity, either it is one-time or permanent, the Council is obliged to ensure a proportionate increase of infrastructure facilities. The Medical Council can only make recommendations to the Central Government for grant of permission for one-time intake capacity in seats only when it is satisfied that scheme to be submitted by the medical colleges fulfils all the requirements. Unless such a scheme providing for all the requirements provided for in the Act and the Regulations is submitted to the Central Government and the Medical Council is satisfied that the scheme complies with all the requirements and makes a recommendation to that effect, only then the Central Government can consider for grant of permission for increase of admission capacity in a medical college. Similarly, the Central Government without compliance with the Act and the Regulations cannot grant, without recommendation of the Medical Council, any permission for one-time increase in admission capacity in various courses conducted by the medical colleges. For the aforesaid reasons, we are of the view that the Central Government was fully justified when it rejected the request of the State Government for grant of permission for one-time increase in the admission capacity in Medicine and Dentistry courses in various medical colleges in the State of Maharashtra.
11.The aforesaid observations by the High Court were in the context of the extraordinary and difficult situation that had arisen due to revision of the merit list. It is in this light the aforesaid observation has to be read and understood. It is no doubt true that a large number of students who were already admitted in the colleges and incurred a lot of expenditure in taking admissions were to be dislodged by issue of the revised merit list. In such a situation one can sympathise with the plight of such students who for no fault of their own were to be dislodged. However, compassion and sympathy have no role to play where a rule of law is required to be enforced. The High Court has rightly declined to issue any direction to the Central Government to grant one-time increase in the admission capacity in the medical colleges, otherwise it would not have been proper exercise of jurisdiction under Article 226 of the Constitution. Adjusting equities in exercise of extraordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council under Section 10-A of the Act is a different thing. The Court cannot direct to waive the mandatory requirement of law in exercise of its extraordinary power under Article 226. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law. However, it does not mean that the High Court is powerless in that regard. It can do so only when it finds that there was some illegality in the order of the Central Government in refusing to increase the admission capacity in various colleges. The increase in admission capacity is permissible only when a scheme, in accordance with the Regulations, is submitted by a medical college under Section 10-A of the Act to the Central Government and the Medical Council is satisfied that the scheme complies with the requirement of the Act and Regulations and thereafter the Medical Council recommends for such an increase in admission capacity. So long as the requirements under Section 10-A of the Act are not complied with, no permission can be granted by the Central Government. If any direction is issued by the High Court to the Central Government to increase the admission capacity in a medical college, it would be in the teeth of the statutory provisions and amount to amending the provisions of Section 10-A. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law." (Emphasis added)
21.The Supreme Court in a subsequent decision in State of Maharashtra v. Sneha Satyanarayan Agrawal reported in (2008) 15 SCC 353 reinforced the binding nature of the guidelines framed in Mridul Dhar's case and in paragraph 28, it was observed as follows:
28.In our view, the High Court failed to take note of the above relevant aspects and as such the impugned direction of the High Court cannot be implemented as the same will have far-reaching consequences on the entire admission process of Health Science courses in Maharashtra State. Further, it will run counter to the law laid down in Medical Council of India v. Madhu Singh1 as the cut-off date, 30-8-2006 was already over and no shifting at this belated stage was permissible as per Medical Council of India's regulations which were held to be mandatory. In our considered opinion, the High Court has misinterpreted the rules particularly with reference to preference system of MHT-CET, 2006.
22.The Same view was once again reiterated by the Supreme Court in Medical Council of India v. Manas Ranjan Behera reported in (2010) 1 SCC 173 and in paragraph 2 it was observed as follows:
2.It may be noticed in Mridul Dhar v. Union of India1 this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated,
"Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with."
In view of these directions, the High Court should not have passed the impugned order.
23.He also submitted that as long as the form was not in complete shape, the MCI was entitled to reject the application submitted by the petitioner. Whatever may be their predilections in this regard, the MCI will have to act only in terms of the provisions of the Act.
24.It must also be noted that the earlier MCI was superseded by the Parliamentary amendment introduced to the Act. In exercise of the power under Section 3-A, the Board of Governors were appointed. The said action of the Parliament was necessitated due to large scale corruption in the MCI including the Chairman of the MCI got arrested for having disproportionate assets. In the present case, the power of the Central Government under Section 10-A is delegated to the MCI itself by virtue of introduction of Section 3-B of the amended Act 32/2010. Section 3-B reads as follows:
"3B.Certain modifications of the Act.- During the period when the Council stands superseded, -
a)the provisions of this Act shall be construed as if for the word "Council", the words "Board of Governors" were substituted; (b)the Board of Governors shall-
(i)exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references to the Board of Governors;
(ii)grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and
(iii)dispose of the matters pending with the Central Government under section 10A upon receipt of the same from it."
25.Therefore, the Board of Governors today are donning the role of both Central Government as well as MCI and carries onerous responsibility and they must oversee fair norms were adopted and rule of law was strictly followed. The argument that there was delay on the part of the university or they have invested huge amounts cannot be a ground to subvert statutory regulations prescribed therein. The fact is that before the cut-off date, the petitioner college did not submit the Letter of Affiliation for the University. Admittedly it came to be sent long after the cut off date, i.e. on 30.6.2010. The application is liable to be rejected as it is not in complete shape. Reliance placed by the petitioner college on the basis of certain judgments rendered under the service law does not help as the Supreme Court itself has held that MCI regulations are mandatory. Any reliance placed upon orders made by the Supreme Court in exercise of its power under Article 142 cannot help the management as this court sitting under Article 226, has to decide the matter only strictly according to law and cannot deviate from the binding legal precedents laid by the Supreme Court.
26.If a person at the time of application did not have prescribed qualification, then his selection cannot be made on the ground that he has subsequently acquired qualification or that he was having superior qualification. In such situation if appointment is cancelled, it does not involve grant of any hearing as no prejudice can be said to be caused. This view of the Supreme Court was taken in Mohd. Sartaj v. State of U.P., reported in (2006) 2 SCC 315 and in paragraph 19 it was observed as follows: "19...... as admittedly, the appellants were not qualified and they did not possess BTC or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or certificate of any other training course recognised by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and therefore no hearing was required before the cancellation of their services....."
27.Further, the contention that before rejecting the application, the petitioner was not heard cannot be accepted. Because in the present case, it is not the stage in which their application was considered, but sought to be rejected on certain deficiencies which is disputed by the management. On the other hand, the rejection is on the basis of incomplete shape of application. It does not require any hearing as even the petitioner had admitted that his application submitted before the cut-off date did not accompany one of the essential criteria, i.e., consent of affiliation from the respective university.
28.The judgment of this court in Asan Memorial Association's case (cited supra) does not place the correct position of law. It had followed certain orders passed by the Supreme Court under Article 142 as if they are the precedents. But it did not consider the binding precedents laid down by the Supreme Court. On the basis of the personal grievances or predilections projected by the petitioner, this court is not inclined to entertain the writ petition. The order passed by the MCI is valid. Accordingly, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
The Union of India,
Department of Health,
Central Secretariat, New Delhi.
The Medical Council of India,
Pocket 14, Sector 8
Dwaraka, New Delhi-110 077
The State of Tamil Nadu,
Department of Health & Family Welfare,
Fort St. George, Chennai-600 009.
4.The Director of Medical Education,
Directorate of Medical Education,
162,Poonamallee High Road,
Kilpauk, Chennai-600 010.
Tamil Nadu Dr. M.G.R. Medical University,P.B.No.1200, No.69,Anna Salai,