PADMASHREE DR. D.Y. PATIL MEDICL COLLEGE Vs. MEDICAL COUNCIL OF INDIA & ANR
Indian Medical Council Act, 1956
Section 10 A - PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC
Supreme Court of India (Division Bench (DB)- Two Judge)
Special Leave Petition (Civil), 15043 of 2015, Judgment Date: Aug 31, 2015
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION [C] NO.15043 OF 2015
Padmashree Dr. D.Y. Patil Medical College ... Petitioner
Vs.
Medical Council of India & Anr. ... Respondents
J U D G M E N T
ARUN MISHRA, J.
1. The petitioner has filed the present special leave petition aggrieved
by the judgment and order dated 5.5.2015 passed by a Division Bench of the
High Court of Delhi in L.P.A. No.235/2015 thereby reversing the judgment
and order passed by the Single Bench in the matter of increase of seats for
MBBS course from 150 to 250 from the academic session 2015-16. The
petitioner preferred writ petition before the Single Bench of the High
Court of Delhi on being aggrieved by the rejection of its application by
the Central Government on the ground that essentiality certificate was not
filed along with the application form. The petitioner claimed that it had
filed the application for increase in the intake capacity on 30.8.2014. The
essentiality certificate could not be submitted by the petitioner as it had
not been issued to it by the Government of Maharashtra. It was issued on
3.9.2014 and was submitted to the Central Government on 5.9.2014. On
16.10.2014 the Central Government returned the application on the ground
that the essentiality certificate and the consent of affiliation were not
submitted by the petitioner along with the proposal dated 1.9.2014. The
last date of submitting the duly completed application was over on
31.8.2014. The petitioner was advised to submit a fresh application for the
academic year 2016-17. On 24.10.2014, the petitioner requested for
condonation of delay in submitting the essentiality certificate.
Thereafter, the petitioner filed a writ application which was allowed vide
order dated 8.4.2015 by the Single Bench of the High Court. On 17.4.2015,
the Medical Council of India (for short “the MCI”) filed a Letters Patent
Appeal No.235/2015 as against the judgment and order passed by the Single
Bench which was allowed vide judgment and order dated 5.5.2015. Hence, the
petitioner has assailed the same in the present special leave petition.
2. A Division Bench of the High Court has, inter alia, relied upon a
decision of this Court in Educare Charitable Trust v. Union of India & Anr.
[AIR 2014 SC 902] and held that for the present academic session 2015-16,
no direction can be issued due to time schedule.
It was submitted on behalf of the petitioner that once the
essentiality certificate was submitted by it, the application could not
have been returned/rejected in a mechanical manner due to the aforesaid
deficiency and the delay ought to have been condoned. In the circumstances,
as delay was occasioned by the Government of Maharashtra, it was beyond the
control of the petitioner. Illegality has been committed in rejecting the
petitioner’s prayer to condone the delay on the ground that essentiality
certificate was not submitted within the prescribed time limit. Reliance
has been placed on the decisions of this Court in S.L.P. [C] No.14838/2015
– Ponnaiyah Ramajayam Institute of Science & Technology Trust v. MCI & Anr.
decided on 15.7.2015, C.A. No.8054/2013 – Royal Medical Trust (Regd.) v.
Union of India & Anr. decided on 10.9.2013; and W.P. [C] No.414/2015 –
Pondicherry Institute of Medical Sciences & Anr. v. Union of India & Anr.
ordered on 7.8.2015.
3. Per contra, it was contended on behalf of the respondents that the
MCI is a statutory body and is governed by the Act and the rules and also
by the directions issued by this Court for strict adherence to the time
schedule and it has an obligation towards maintenance of highest standards
of medical education. Time schedule and regulations are binding and
mandatory. Under section 10A of the Indian Medical Council Act, 1956
(hereinafter referred to as “the Act of 1956”) prior permission of the
Central Government for establishing any medical college or starting any
higher course of study has to be obtained. Increase in the intake capacity
is governed by “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
Postgraduate Course of Study or Training) Regulations, 2000 (hereinafter
referred to as “the Regulations of 2000”). The Regulations require the
essentiality certificate to be necessarily appended to the application
form.
4. It is also submitted by the MCI that the criteria set out in the
Establishment of Medical College Regulations, 1999 is also required to be
fulfilled. The schedule thereof prescribes the time schedule. The rejection
of the application is appropriate as incomplete applications cannot be
entertained. Time schedule is required to be observed as held by this Court
in umpteen number of decisions and now if any inspection is ordered, it can
be only for the academic year 2016-17 and not for the academic session 2015-
16. The decision-making process not only involves inspection but the
decision by other competent bodies of the MCI and, thereafter, by the
Central Government. The decision of the respondents is just and proper, no
case for interference is made out in breach of time-schedule to make the
inspection for the academic session 2015-16.
5. Section 10A of the Act of 1956 mandates prior permission to be
obtained from the Medical Council of India/Government of India to establish
new medical colleges/opening of a new or higher course of study/increase in
the admission capacity. Various factors have been specified in Section
10A(7) which are to be taken into consideration by the MCI while making its
recommendations to the Central Government. The Regulations of 2000 have
been framed in exercise of power under section 10A read with section 23 of
the Act of 1956. Regulation 1 requires an application to be filed before
the Central Government with permission of the State Government. Regulation
3 deals with the qualification criteria. Regulation 3(2) requires the
permission letter regarding desirability and feasibility of having an
increase in the existing medical college/institution, which has to be
obtained by the applicant from the respective State Government/Union
Territory Administration. Regulations 1, 3, 4 and 6 are extracted
hereunder :
“SCHEME FOR PERMISSION OF THE CENTRAL GOVERNMENT TO INCREASE THE ADMISSION
CAPACITY IN ANY COUSE OF STUDY OR TRAINING (INCLUDING POST GRADUATE COURSE
OF STUDY OR TRAINING) IN THE EXISTING MEDICAL COLLEGES/INSTITUTIONS.
?1. INSTRUCTIONS TO THE MEDICAL COLLEGE/ INSTITUTION:-
For increasing the number of seats in the MBBS, Post-graduate Diploma
Degree/Higher Specialty courses, the medical college/institution should
conform to the regulations prescribed by the Council. They should apply to
the Central Government for this permission along with the permission of
State Government, affiliation granted by an University recognized under
University Grants Commission Act or State Act or Central Act and in
conformity with the Medical Council of India Regulations, along with
documentary evidence to show the additional financial allocation, provision
for additional space and equipment and other infrastructural facilities and
provision for recruitment of additional staff as per the Council norms.
?x x x x x
3. QUALIFICATION CRITERIA:-
The medical college/institution shall qualify to apply for increasing the
number of admission in MBBS/PG Diploma/Degree/Higher Specialty Course in
the existing medical college/institution if the following conditions are
fulfilled :-
1. (1) The Medical College/Institution is recognized by the Medical Council
of India for running MBBS/PG Diploma/PG Degree/Higher Speciality Courses ;
The above Clause has been substituted with the following in terms of
Notification published. on 29.12.2009 in the Gazette of India and the same
is also annexed at ANNEXURE-III : -
"The medical college/institution must be recognized by the Medical Council
of India for running Bachelor of Medicine and Bachelor of Surgery/post
Graduate 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 increase of intake in Post Graduate Courses in pre-clinical and
para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology,
Pathology, Microbiology, Forensic Medicine & Community Medicine at the time
of 4th renewal i.e. along with the admission of 5th Batch for the MBBS
Course".
Or
(2) Medical College/Institution has received the formal permission of the
Central Government under section 10A of the Indian Medical Council Act,
1956 (102 of 1956) and has started the post-graduate course in which the
increase in admission capacity is sought.
2. The permission letter regarding desirability and feasibility of having
an increase of seats in the existing medical College/institution for
aforesaid Courses has been obtained by the applicant from the respective
State Government or the Union Territory Administration.
3. Letter of University's permission for increasing the admission capacity
in any course of study or training (including a postgraduate course of
study or training) in seats in the existing medical college/institution has
been obtained by the medical college/institution from the university to
which it is affiliated.
The Clauses "3.2 and 3.3" have been substituted with the following in terms
of Notification published on 29.12.2009 in the Gazette of India and the
same is· also annexed at ANNEXURE-III :-
"3.2 That the. 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.
3.3 That 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.”
4 . That the medical college/institution has a feasible and time bound
programme to provide additional equipment and infrastructural facilities
like the number of staff, space, funds, equipment and teaching beds etc.,
for increased numbers as laid down in the Medical Council of India
Regulations.
5. The ratio of teaching staff and students shall be as laid down in the
Medical Council of India Regulations on Minimum Standard Requirements for
the Medical College for 50/100/150 Admissions in a medical college for
Bachelor of Medicine and Bachelor of Surgery (MBBS) and the Post-graduate
Medical Education Regulations for post-graduate admissions .
...... . ........................
4. REGISTRATION OF APPLICATION:-
Incomplete application will be returned to the medica1 college/institution
by the Ministry of Health and Family Welfare along with the enclosures and
application fee.
Application found complete in all respects will be registered by the
Ministry of Health and Family Welfare and forwarded to Council within 30
days from the date of receiving it all for evaluation and recommendations.
Acceptance of the application will only signify the acceptance of
application for evaluation. It will, however, under no circumstances mean
approval of the application for grant of permission.
5. x x x x x
6. EVALUATION BY MEDICAL COUNCIL OF INDIA :-
The Council shall evaluate the application to accept the desirability and
prima facie feasibility for increasing the admission capacity at the
existing medical college/institution and the capability of the medical
college/institution to provide the necessary resources and infrastructure
for the scheme.
While evaluating the application, the Council may seek further information,
clarification or additional documents from the applicant as considered
necessary and shall carry out a physical inspection to verify the
information, clarification or additional documents supplied by the medical
college. The dates of receipt of application for increase in admission
capacity in postgraduate courses and processing dates are given in the
schedule. The dates of receipt of application and processing of
applications in respect of increase of seats in MBBS course shall be as per
the schedule included in the Establishment of Medical College Regulations,
1999”.
?
6. Appendix II to format of application is also relevant and the same is
extracted below :
“APPENDIX -II
FORMAT OF APPLICATION FOR PERMISSION OF THE CENTRAL GOVERNMENT TO INCREASE
THE ADMISSION CAPACITY IN MEDICAL COLLEGES/INSTITUTIONS.
APPLICATION FOR INCREASE IN ADMISSIONCAPACITY MBBS/ M.D. / M.S./
DIPLOMA/D.M./M.Ch./
COURSE......................................................................
..
(Specify the name of the Course)
PARTICULARS OF THE APPLICANT
1. NAME OF THE APPLICANT (IN BLOCK LETTERS)
2. ADDRESS (IN BLOCK LETTERS)
3. REGISTERED OFFICE (NO., STREET, CITY, PIN CODES, TELEPHONE, TELEX,
TELEFAX)
4. CONSTITUTION (STATE GOVERNMENT/UNION TERRITORY ADMINISTRATION/
UNIVERSITY/ AUTONOMOUS BODY, SOCIETY/TRUST)
5. REGISTRATION/INCORPORATION (NUMBER AND DATE)
6. NAME OF AFFILIATING UNIVERSITY
7. NO. OF SEATS APPROVED AND DATE OF RECOGNITION BY MEDICAL COUNCIL OF
INDIA.
SIGNATURE OF APPLICANT NAME AND DESIGNATION OF MEDICAL COLLEGE.
LIST OF ENCLOSURES
1. Attested copy of the Essentiality Certificate issued by the respective
State Government/Union Territory Administration on the prescribed proforma.
2. Attested Copy of the Consent of Affiliation issued by a recognised
University.
3. Authorization letter addressed to the Bankers of the Applicant
authorizing the Central Government/Medical Council of India to make
independent enquiries regarding the financial track record of the
applicant.
4. Attested copy of the letter from Medical Council of India approving
recognition of the college/institution, if any.
Note: All the copies shall be attested by any gazetted officer.
............. "
Appendix to format of application for permission makes it clear that
an attested copy of essentiality certificate is required to be enclosed
with the application form so as to make it complete. It is also apparent
from Regulation 6 that the time schedule included in the Establishment of
New Medical College Regulations, 1999 (for short “the 1999 Regulations”) is
applicable for increase in the intake capacity also.
7. The 1999 Regulations, as amended in 2012, prescribe different dates
in its time schedule which are extracted below :
“1. (i) These Regulations may be called the “Establishment of Medical
College Regulations (Amendment), 2012.
(ii) They shall come into force from the date of their publication in the
Official Gazette” .......
6. In the “ESTABLISHMENT OF MEDICAL COLLEGE REGULATIONS, 1999”, in
“SCHEDULE FOR RECEIPT OF APPLICATION FOR ESTABLISHMENT OF NEW MEDICAL
COLLEGES AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND
THE MEDICAL COUNCIL OF INDIA”, the following shall be substituted as under
:-
?SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL
COLLEGES AND PROCESSING OF THE APPLICATIONS BY THE MEDICAL COUNCIL OF
INDIA.
|S. |Stage of processing |Last Date |
|No. | | |
|1. |Receipt of applications by the |From 1st August |
| |Council |to 31st August |
| | |(both days |
| | |inclusive) of any|
| | |year |
|2. |Issue of Letter of Intent by |30th April |
| |the Council | |
|3. |Receipt of reply from the |31st May |
| |applicant by the Council for | |
| |consideration for issue of | |
| |Letter of Permission | |
|4. |Issue of Letter of Permission |15th June |
| |by the Council | |
Note : The time schedule indicate above may be modified by the Central
Government, for reasons to be recorded in writing, in respect of any class
or category of applications.
Note.---(1) The information given by the applicant in Part I of the
application for setting up a medical college that is information regarding
organisation, basic infrastructural facilities, managerial and financial
capabilities of the applicant shall be scrutinised by the Medical Council
of India through an inspection and thereafter the Council may recommend
issue of letter of intent by the Central Government.
(2) Renewal of permission shall not be granted to a medical college if
the above schedule for opening a medical college is not adhered to and
admissions shall not be made without prior approval of the Central
Government.”
It is apparent that the application is required to be submitted to
the Central Government from 1st to 31st August and thereafter the
applications, which are in order, are to be forwarded by the Central
Government to the MCI and the MCI, in turn, is required to send its
recommendations and the Central Government has to issue a Letter of Intent
by 30th of April next year. The applicant has to send reply to the Central
Government by 31st May. For issue of letter of permission by the Council
last date was 15.6.2015.
8. Reliance has been placed by the MCI on Dental Council of India v.
S.R.M. Institute of Science & Technology & Anr. [(2004) 9 SCC 676] in which
this Court has laid down that an incomplete application cannot be
entertained. This Court held thus :
“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 Karnataka [2003 (6) SCC 697], State of Maharashtra v.
Indian Medical Assn. [2002 (1) SCC 589] 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. However, that would not be the end of the matter. In
the present case, pursuant to the interim direction issued by the High
Court, inspection has taken place and a report has been submitted by an
inspection team appointed by the Dental Council of India which is kept in a
sealed cover by the Dental Council of India. It would be more appropriate
to process the application on the first respondent furnishing the
permission or essentiality certificate and other relevant documents as
provided under the relevant Regulations and the scheme framed for the
purpose of filing an application for starting a new or higher course in the
college. On furnishing such permission or essentiality certificate, the
Dental Council and the Government of India shall take appropriate steps as
provided under the relevant Act and Rules or Regulations. Shri P.P. Rao
submits that a time of eight weeks may be granted to furnish the permission
or essentiality certificate to the Government of India. We, therefore,
direct that if such permission or essentiality certificate issued by the
State Government is furnished within a period of eight weeks, the proposal
of the first respondent for starting new/higher courses shall be processed
by the Dental Council of India and the Government of India and appropriate
orders made thereon within eight weeks thereafter”.
This Court has laid down that incomplete applications cannot even be
processed by the Central Government or the Dental Council. The application
will not be complete without being accompanied by permission letter or
essentiality certificate issued by the State Government.
9. To contend that compliance with regulations is necessary to ensure
standard medical education, reliance has also been placed on behalf of the
MCI on a decision of this Court in K.S. Bhoir etc. v. State of Maharashtra
& Ors. [(2001) 10 SCC 264] which is 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 Karnataka [1998 (6) SCC 131] and
Preeti Srivastava (Dr) v. State of M.P. [1999 (7) SCC 120], 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 Karnataka [1998
(6) SCC 131], 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.
10. The decision in Govt. of A.P. & Anr. v. Medwin Educational Society &
Ors. [(2004) 1 SCC 86] regarding essentiality certificate has also been
pressed into service by learned counsel for the respondent-MCI which is to
the following effect :
“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.”
11. The time schedule which has statutory force, has been ordered to be
strictly adhered to by this Court in a plethora of decisions. This Court in
Mridul Dhar (Minor) & Anr. v. Union of India & Ors. [(2005) 2 SCC 65] has
laid down that for establishment of new medical colleges/increase in intake
capacity, application should be filed within the prescribed period and only
such applications which are complete in all respects, deserve/have to be
treated as applications under section 10A. The complete applications are
required to be forwarded to the MCI within the time frame that is by 30th
September. In Mridul Dhar (supra), it was held as under :
“27. In exercise of the powers conferred by Section 10-A read with Section
33 of the Act, MCI made the establishment of new medical colleges, opening
of higher courses of study and increase of admission capacity in the
Medical Council of India Establishment of Medical College Regulations,
1999. The Regulations, inter alia, provided as a qualifying criterion that
the eligible organisation shall abide by the Indian Medical Council Act,
1956 as modified from time to time and the Regulations framed thereunder
and shall qualify to apply for permission to establish new medical colleges
only if the conditions therein are fulfilled. One of the conditions is that
essentiality certificate regarding the desirability and feasibility of
having the proposed medical college at the proposed location has been
obtained and that the adequate clinical material available as per Medical
Council of India requirements has been obtained by the applicant from the
respective State Government or the Union Territory Administration. It also
provides that the applicant own and manage a hospital of not less than 300
beds with necessary infrastructural facilities and capable of being
developed into a teaching institution as prescribed by the Medical Council
of India, in the vicinity of the proposed medical college. MCI has also
made the establishment of the Medical College Regulations, 1999 in exercise
of powers conferred by Section 10-A and Section 33 of the Act, inter alia,
prescribing the form of essentiality certificate as a qualifying criterion
to make application for permission to establish a medical college. These
Regulations stipulate that essentiality certificate in Form 2 regarding no-
objection of the State Government/Union Territory Administration for the
establishment of the proposed medical college at the proposed site and
availability of adequate clinical material as per the Council Regulations,
have been obtained by the person from the State Government/Union Territory
Administration concerned. The form of essentiality certificate requires a
certificate from the competent authority to the following effect:
“It is certified that:
The applicant owns and manages a 300-bedded hospital which was established
in….
It is desirable to establish a medical college in the public interest.
(c) Establishment of a medical college at … by (the name of
society/trust) is feasible.
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 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.”
x x x x x
30. It cannot be doubted that proper facilities and infrastructure
including a teaching faculty and doctors is absolutely necessary and so
also the adherence to time schedule for imparting teaching of highest
standards thereby making available to the community best possible medical
practitioners. It cannot be said that such facilities are not insisted upon
for Section 10-A seats. No instance has been brought to our notice where a
Section 10-A seat in a government college has not been recognised under
Section 11. The all-India quota seats are applicable only to government
colleges. In many colleges, full-fledged seats for all intent and purposes
insofar as medical education is concerned, whether in a new medical college
or in the increased intake in an existing college, are continuing as
Section 10-A seats. Prima facie, we see no reason why such seats shall not
be taken into consideration for calculating 15% share of all-India quota.
The 15% quota seats get substantially reduced by not taking into account
Section 10-A seats. We direct the Central Government, DGHS and MCI to
examine this aspect in detail and submit a report, on consideration whereof
we would finally decide the matter regarding inclusion of Section 10-A
seats for working out 15% all-India quota.
x x x x x
32. Having regard to the professional courses, it deserves to be emphasised
that all concerned including Governments, State and Central both, MCI/DCI,
colleges — new or old, students, Boards, universities, examining
authorities, etc. are required to strictly adhere to the time schedule
wherever provided for; there should not be midstream admissions;
admissions should not be in excess of sanctioned intake capacity or in
excess of quota of anyone, whether State or management. The carrying
forward of any unfilled seats of one academic year to next academic year is
also not permissible.
x x x x x
35. Having regard to the aforesaid, we issue the following directions:
1 to 3. x x x x x
4. It shall be the responsibility of all concerned including Chief
Secretaries of each State/Union Territory and/or Health Secretaries to
ensure compliance with the directions of this Court and requisite time
schedule as laid down in the Regulations and non-compliance would make them
liable for requisite penal consequences.
x x x x x
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.”
12. This Court in Medical Council of India v. Manas Ranjan Behera & Ors.
[(2010) 1 SCC 173] has reiterated the directions issued by this Court in
Mridul Dhar’s case (supra) which is in terms following :
“2. It may be noticed in Mridul Dhar v. Union of India [(2005) 2 SCC 65]
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.”
13. This Court in Priya Gupta v. State of Chhattisgarh & Ors. [(2012) 7
SCC 433] has laid down that every person, officer or authority who disobeys
directions of this Court of adherence to the time schedule, shall be liable
to be prosecuted under the provisions of the Contempt of Courts Act.
Relevant portions of the directions issued by this Court in the said case
are extracted hereunder :
“40. The schedules prescribed have the force of law, inasmuch as they form
part of the judgments of this Court, which are the declared law of the land
in terms of Article 141 of the Constitution of India and form part of the
Regulations of the Medical Council of India, which also have the force of
law and are binding on all concerned. It is difficult to comprehend that
any authority can have the discretion to alter these schedules to suit a
given situation, whether such authority is the Medical Council of India,
the Government of India, State Government, university or the selection
bodies constituted at the college level for allotment of seats by way of
counselling. We have no hesitation in clearly declaring that none of these
authorities are vested with the power of relaxing, varying or disturbing
the time schedule, or the procedures of admission, as provided in the
judgments of this Court and the Medical Council of India Regulations.
41. Inter alia, the disadvantages are:
x x x x x
(3) The delay in adherence to the schedule, delay in the commencement of
courses, etc. encourage lowering of the standards of education in the
medical/dental colleges by shortening the duration of the academic courses
and promoting the chances of arbitrary and less meritorious admissions.
42. The Medical and Dental Councils of India, the Governments and the
universities are expected to act in tandem with each other and ensure that
the recognition for starting of the medical courses and grant of admission
are strictly within the time-frame declared by this Court and the
Regulations. It has come to the notice of this Court that despite warnings
having been issued by this Court and despite the observations made by this
Court, that default and non-adherence to the time schedules shall be viewed
very seriously, matters have not improved. Persistent defaults by different
authorities and colleges and granting of admission arbitrarily and with
favouritism have often invited criticism from this Court.
x x x x x
45. The maxim boni judicis est causas litium dirimere places an obligation
upon the Court to ensure that it resolves the causes of litigation in the
country. Thus, the need of the hour is that binding dicta be prescribed and
statutory regulations be enforced, so that all concerned are mandatorily
required to implement the time schedule in its true spirit and substance.
It is difficult and not even advisable to keep some windows open to meet a
particular situation of exception, as it may pose impediments to the smooth
implementation of laws and defeat the very object of the scheme. These
schedules have been prescribed upon serious consideration by all concerned.
They are to be applied stricto sensu and cannot be moulded to suit the
convenience of some economic or other interest of any institution,
especially, in a manner that is bound to result in compromise of the
abovestated principles.
x x x x x
47. All these directions shall be complied with by all concerned, including
the Union of India, Medical Council of India, Dental Council of India,
State Governments, universities and medical and dental colleges and the
management of the respective universities or dental and medical colleges.
Any default in compliance with these conditions or attempt to overreach
these directions shall, without fail, invite the following consequences and
penal actions:
47.1. Every body, officer or authority who disobeys or avoids or fails to
strictly comply with these directions stricto sensu shall be liable for
action under the provisions of the Contempt of Courts Act. Liberty is
granted to any interested party to take out the contempt proceedings before
the High Court having jurisdiction over such institution/State, etc.
47.2. The person, member or authority found responsible for any violation
shall be departmentally proceeded against and punished in accordance with
the Rules. We make it clear that violation of these directions or
overreaching them by any process shall tantamount to indiscipline,
insubordination, misconduct and being unworthy of becoming a public
servant.
47.3. Such defaulting authority, member or body shall also be liable for
action by and personal liability to third parties who might have suffered
losses as a result of such default.
x x x x x
78.4. With all the humility at our command, we request the High Courts to
ensure strict adherence to the prescribed time schedule, process of
selection and to the rule of merit. We reiterate what has been stated by
this Court earlier, that except in very exceptional cases, the High Court
may consider it appropriate to decline interim orders and hear the main
petitions finally, subject to the convenience of the Court. We may refer to
the dictum of this Court in Medical Council of India v. Rajiv Gandhi
University of Health Sciences [2004 (6) SCC 76], SCC para 14 in this
regard.
78.5. We have categorically returned a finding that all the relevant
stakeholders have failed to perform their duty/obligation in accordance
with law. Where the time schedules have not been complied with, and rule of
merit has been defeated, there nepotism and manipulation have prevailed.
The stands of various authorities are at variance with each other and none
admits to fault. Thus, it is imperative for this Court to ensure proper
implementation of the judgments of this Court and the regulations of the
Medical Council of India as well as not to overlook the arbitrary and
colourable exercise of power by the authorities/colleges concerned.”
14. The MCI is required to undertake inspections and thereafter is
required to point out the deficiencies to institutions, invite comments and
send its recommendations to the Central Government. There are various
stages which are time-consuming and the schedule has a purpose of bringing
uniformity of commencement of academic session at the same time.
15. In the instant case, the application was admittedly incomplete when
it was filed. Though there is a dispute whether it was filed before 31st
August, 2014. It was submitted on behalf of the MCI that it was filed on
02.09.2014. Be that as it may. Even assuming that it was filed before
31.8.2014, admittedly it was an incomplete application as the essentiality
certificate issued by the Government of Maharashtra was not enclosed along
with the application form due to which application came to be rejected and
delay has taken place for which the petitioner has to blame itself. A
Division Bench of the High Court has relied upon the decision in Educare
Charitable Trust v. Union of India & Anr. (supra) in which this Court has
laid down thus :
"14. As per the aforesaid time-schedule, the applicant-college desirous of
increasing the admission capacity is to submit the application from 1st
August to 30th September. This was done by the petitioner. However, what
was found that the petitioner was not meeting the qualifying criteria as on
that date because with respect to existing admission capacity, it had not
been recognized so far. The applications are to be forwarded by the Central
Government, once they are found to be in order and meeting the qualifying
criteria laid down in Regulation 19, by 31st October in respect of BDS
course. This time was extended upto 31st December in this year. After an
application is forwarded to the DCI, DCI is supposed to evaluate the scheme
for increasing admission capacity as per the procedure laid down in
Regulation 21 which lays down that the DCI is required to ascertain the
?desirability and prima facie feasibility for increasing the admission
capacity at the Dental College. It is also required to satisfy itself about
the capability of the Dental College to provide necessary resources and
infrastructure for the scheme. DCI is even required to conduct physical
inspection of the college before forming an opinion as to whether the
applicant satisfies the condition of feasibility of increasing the
admission capacity. This process, naturally, is time consuming. As per the
time-schedule referred to above, time upto 15th June is given for the DCI
to make recommendation to the Central Government. Such a report containing
its recommendation is to be given in terms of Regulation 22. Thereafter,
Central Government is required to go into the said recommendation and if it
is found that applicant-college deserves the permission to increase the
admission capacity, Letter of Permission is to be issued by 15th July.
This time frame is to ensure timely admissions of students.
15. Having regard to the above, it is not possible to accede to the request
of the petitioner to change the time-schedule when the last date for
admitting the students, which was July 15, 2013, expired long ago. If the
Central Government forwards the application to the DCI at this juncture,
DCI shall hardly have any time to look into the feasibility of the scheme
as per the requirements contained in Regulation 21. We have to keep in mind
that in the schedule annexed to the Regulations 2006, six to eight months
time is given to the DCI for this purpose. We are, thus, of the view that
the High Court did not commit any error in holding that in the given
circumstances mandamus could not be issued to the Central Government to
exercise its discretionary powers in a particular manner to modify the time-
schedule. Sanctity to the time-schedule has to be attached. It is too
late in the day, insofar as present academic session is concerned, to give
any direction. This Court has highlighted the importance of cut off date
for starting the professional courses, particularly medical courses, and
repeatedly impressed upon that such deadline should be tinkered with. (See:
Priya Gupta Vs State of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi
Mahila Mahavidyalaya Vs. State of U.P. (2013) 2 SCC 617)."
This Court has reiterated the law laid down in Priya Gupta (supra)
and the sanctity to the time schedule has to be attached.
16. In W.P. [C] No.705/2014 – Royal Medical Trust (Regd.) and Anr. v.
Union of India & Anr. decided on 20.8.2015, this Court has observed that
the Schedule must take care of following aspects :
“(A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as essentiality
certificate, consent for affiliation and physical features like land and
hospital requirement. If an applicant fails to fulfil these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfil the basic requirements would be considered at the next
stage.
(B) Inspection should then be conducted by the Inspectors of the MCI. By
very nature such inspection must have an element of surprise. Therefore,
sufficient time of about three to four months ought to be given to the MCI
to cause inspection at any time and such inspection should normally be
undertaken latest by January. Surprise inspection would ensure that the
required facilities and infrastructure are always in place and not borrowed
or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be
communicated. If the infrastructure and facilities are in order, the
concerned Medical College should be given requisite permission/renewal.
However if there are any deficiencies or shortcomings,s the MCI must, after
pointing out the deficiencies, grant to the college concerned sufficient
time to report compliance.
(D) If compliance is reported and the applicant states that the
deficiencies stand removed, the MCI must cause compliance verification. It
is possible that such compliance could be accepted even without actual
physical verification but that assessment be left entirely to the
discretion of the MCI and the Central Government. In cases where actual
physical verification is required, the MCI and the Central Government must
cause such verification before the deadline.
(E) The result of such verification if positive in favour of the Medical
College concerned, the applicant ought to be given requisite
permission/renewal. But if the deficiencies still persist or had not been
removed, the applicant will stand disentitled so far as that academic year
is concerned.”
It is apparent from the aforesaid decision and the regulations that
the application at the first instance is required to be complete and
incomplete applications are liable to be rejected. Thereafter, there has to
be an inspection and other stages of decision-making process.
17. In S.L.P. [C] No.7846/2014 – Medical Council of India v. N.K.P. Salve
Institute of Medical Sciences & Anr. filed against the judgment dated
24.2.2014 of the High Court of Judicature at Bombay, Bench at Nagpur, this
Court vide order dated 14.3.2014 has disposed of the special leave petition
considering the time-schedule with a direction to consider the application
for starting a medical college for the next year provided the respondents
submitted it along with the relevant documents as per the practice in
vogue.
18. The MCI has also referred to decision of this Court in W.P. [C]
No.172/2014 – Singhad Technical Education Society v. Union of India decided
on 3.5.2014 in which the application for the academic year 2014-15 was
directed to be considered for the academic year 2015-16.
19. The MCI has also cited the decision in C.A. No.6564/2014 – Medical
Council of India v. Shree Balaji Medical College & Hospital & Anr., in
which this Court vide order dated 18.7.2014 directed the application for
academic year 2014-15 to be considered for next year i.e 2015-16. In
another decision in S.L.P. [C] No.14759/2014 – Medical Council of India v.
Society for Advancement of Environmental Sciences & Ors. wherein vide order
dated 2.7.2014 the pending application for the academic year 2014-15 was
ordered to be treated as an application for the academic year 2015-16 and
the inspection was ordered to be completed by 31.10.2014.
20. On an analysis of the aforesaid decisions, it is crystal clear that
the time schedule is required to be strictly observed. Hence, it would not
be appropriate to issue any direction for consideration of petitioner’s
case for the ongoing academic session 2015-16 in which inspection is yet to
be made. It is too late in the day to direct inspection for the session
2015-16 as all the dates fixed in the time schedule are over and fixation
of time schedule has a purpose behind it and from a particular date the
session has to commence and part of seats to be filled by a competitive
examination held on all-India basis. Any relaxation in the time schedule
would make holding of examinations on an all India basis a farce and
several complications would arise. Everything cannot be allowed to go
haywire. The entire curriculum would be unsettled in case breach of time
schedule is permitted. The power given to Central Government to relax can
be exercised in exceptional circumstances and that too without disturbing
the academic session. The decision-making process after inspection has
various steps and it cannot be ordered to be done in haste resulting in sub-
standard education and half-baked doctors.
21. On behalf of the petitioner, reliance has been placed on a decision
of this Court in S.L.P. [C] No.14838/2015 – Ponnaiyah Ramajayam Institute
of Science and Technology Trust v. Medical Council of India & Anr. (decided
on 15.7.2015) wherein this Court has directed the inspection to be made and
to submit the recommendation in a sealed cover after four weeks to this
Court. No doubt about it that the application which was filed was for the
academic session 2015-16 but this Court has not decided the question
whether inspection would enure for the benefit of the ongoing academic
session 2015-16 and in case on inspection it is decided to recommend the
prayer made whether it would be for academic year 2016-17 or for the
ongoing session 2015-16 and also question of breach of time schedule. What
has not been decided, cannot be deduced by inferential process. What would
be the ultimate recommendation on inspection, can also not be anticipated.
The requisite Committee of the MCI and Central Government have to
ultimately consider the report/recommendations. Various aspects including
time schedule are required to be taken into consideration for issuance of
any positive direction as to session.
22. Reliance has also been placed by petitioner on a decision of this
Court in Royal Medical Trust (Regd.) v. Union of India & Anr. decided on
10.9.2013 in which a direction was issued by this Court to make inspection
and to decide the fate of the application in accordance with law within one
month’s time. The rejection of application in a mechanical manner was held
to be bad in law. A direction was issued to pass appropriate orders in
accordance with law. No positive direction has been issued by this Court to
start the college. Even otherwise in view of the decisions in Priya Gupta
(supra) and Mridul Dhar (supra), other decisions and recent order dated
10.8.2015 passed by this Court in S.L.P. [C] No.22472/2014 – Medical
Council of India v. Subharti Medical College, Meerut in which the
application for the session 2015-16 was dismissed and the MCI was directed
to ensure that necessary inspection for the academic year 2016-17 shall be
done within six weeks, it would be appropriate to direct inspection for
session 2016-17.
23. Considering the statutory time schedule and that the same is already
over and in the facts and circumstances of the case, it would not be
appropriate to direct inspection to be made and thereafter a decision to be
taken for the current academic session 2015-16 as that would be in breach
of the law laid down in various decisions of this Court which is binding.
Thus, we direct that the application which has been submitted by the
college for the academic session 2015-16 be considered for the next
academic session, subject to fulfilment of other requisite formalities, as
may be necessary, and thereafter the MCI shall conduct an inspection well-
in-time as per the time schedule fixed under the Regulations of 1999. The
Special Leave Petition is dismissed with the aforesaid modification.
Ordered accordingly.
No costs.
........................................J.
(M.Y. Eqbal)
New Delhi;
......................................J.
August 31, 2015. (Arun Mishra)