ROYAL MEDICAL TRUST (REGD) & ANR Vs. UNION OF INDIA & ANR
Supreme Court of India (Full Bench (FB)- Three Judge)
Writ Petition (Civil), 705 of 2014, Judgment Date: Aug 20, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 705/2014
Royal Medical Trust (Regd) and Another. ……Petitioners.
Versus
Union of India and Another. …. Respondents
WITH
W.P.(C) No.700 of 2014, W.P.(C) No.707 of 2014, W.P.(C) No.784 of 2014,
W.P.(C) No.862 of 2014, W.P.(C) No.523 of 2014, W.P.(C) No.799 of 2014,
W.P.(C) No.819 of 2014,
AND
C.A. No. 6481 of 2015 @ SLP(C) No.21765 of 2014,
C.A. No. 6482 of 2015@ SLP (C) No.22755 of 2014,
C.A. No. 6483 of 2015@ SLP (C) No.22756 of 2014,
C.A. No. 6484 of 2015 @ SLP(C) No. 22757 of 2014
C.A. No. 6485 of 2015 @ SLP(C) No.22974 of 2014,
C.A. No. 6486 of 2015 @ SLP(C) No.23512 of 2014,
C.A. Nos. 6488-6489 of 2015 @ SLP(C) Nos.23528-29 of 2014,
C.A. No. 6492 of 2015 @ SLP(C) No.23476 of 2014,
C.A. Nos. 6493-6494 of 2015 @ SLP(C) Nos.24150-51 of 2014,
C.A. No. 6509 of 2015 @ SLP(C) No.24154 of 2014,
C.A. No. 6495 of 2015 @ SLP(C) No.24665 of 2014,
C.A. No. 6496 of 2015 @ SLP(C) No.24913 of 2014,
C.A. No. 6497 of 2015 @ SLP(C) No.25763 of 2014,
C.A. No. 6498 of 2015 @ SLP(C) No.21517 of 2014,
C.A. Nos. 6499-6500 of 2015 @ SLP(C) Nos.26296-97 of 2014,
C.A. Nos. 6503-6504 of 2015 @ SLP(C) Nos.26768-69 of 2014,
C.A. Nos. 6505-6506 of 2015 @ SLP(C) Nos.24754-55 of 2014,
C.A. Nos. 6507-6508 of 2015 @ SLP(C) Nos.25468-69 of 2014,
C.A. Nos. 6501-6502 of 2015 @ SLP(C) Nos.26758-59 of 2014,
SLP(C) No.22785 of 2014, SLP(C) No.27034 of 2014
AND Transfer Petition (C) No.1217 of 2014
J U D G M E N T
Uday Umesh Lalit J.
1. These petitions (except SLP(C) Nos.22785 of 2014 and 27034 of 2014)
arise out of communications issued by the Central Government recommending
disapproval of applications preferred in respect of Medical Colleges of the
applicants for the academic year 2014-2015. In these petitions, after
conducting inspection of the respective Medical Colleges the Medical
Council of India (MCI for short) had found infirmities or inadequacies in
the infrastructure, facilities and faculty. The respective applicants then
claimed that they had rectified the shortcomings and asked for compliance
verification. But the Central Government and/or the MCI refused to
undertake any fresh inspection for verification, for want of adequate time.
This being the common feature in all these petitions, they were heard
together and are being disposed by this common judgment.
2. Broadly the categories of Medical Colleges presently before the Court
are:-
(I) Cases where new Medical Colleges are sought to be established for the
first time and where such colleges are seeking appropriate permission to
admit students to the first year of MBBS course namely:-
(1) WP(C) No.700/2014, (2) WP(C) No.705/2014 (3) WP(C)
No.819/2014 (4) SLP(C) No.22757/2014 (5) SLP(C) No.22756/2014 (6)
SLP(C) No. 24913/2014 (7) SLP (C) No. 23512/2014. The Respondent in this
petition has also preferred Transfer Petition (C) No.1217 of 2014 to have
his writ petition pending in the High Court of Bombay to be transferred to
this Court.
(II) Cases where the existing approved Medical Colleges are seeking
increase in intake of seats for admissions of students to the first year of
MBBS Course namely:
(1) WP(C) No.523/2014 (2) WP(C) No.707/2014
(3) WP(C) No.862/2014.
(III) Medical Colleges seeking renewal of permission, who have already
received permission in the previous year(s) either for establishing new
Medical College or for increasing intake capacity of the existing Medical
College. In this category of cases, the renewal for subsequent batches and
for permission to admit students to the first year course is sought namely:
WP(C) No.784/2014 (2) WP(C) No.799/2014
(3) SLP(C) No.21517/2014 (4) SLP(C) No.21765/2014
(5) SLP(C) No.22755/2014 (6) SLP(C) No.26758-59/2014
(7) SLP(C) No.23476/2014 (8) SLP(C) No.23528-29/2014
(9) SLP(C) No.24154/2014 (10) SLP(C) Nos.24150-51/2014
(11) SLP(C) No.24665/2014 (12) SLP(C) No.24754-55/2014
(13) SLP(C)No.25763/2014 (14) SLP(C) No. 25468-69/2014
(15) SLP(C)No.22974 /2014 (16) SLP(C) Nos.26296-97 /2014
and (17) SLP(C) Nos.26768-69/2014.
3. Reduction in seats in a Dental College is challenged in Special Leave
Petition (C) No.22785 of 2014. This being a completely distinct matter,
is de-tagged and it be listed before an appropriate Bench. Further SLP(C)
No.27034 of 2014 is filed in public interest by an individual claiming that
as on 23.09.2014 about 76 seats were lying vacant in different colleges in
Jharkhand. No separate orders are called for in this petition and it be
taken to be disposed of in the light of our discussion hereinafter.
STATUTORY PROVISIONS
4. The statutory provisions concerning permission for establishment of
new Medical College and for increase in intake are to be found in Section
10A of the Indian Medical Council Act, 1956 (hereinafter referred to as the
Act) and the Regulations framed under the Act. Said Section 10A is as
under:-
“10A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF
STUDY ETC.
1. Notwithstanding anything contained in this Act or any other law for the
time being in force:-
(a) no person shall establish a medical college
(b) no medical college shall:-
(i) open a new or higher course of study or training (including a
postgraduate course of study or training) which would enable a student of
such course or training to qualify himself for the award of any recognised
medical qualification; or
(ii) increase its admission capacity in any course of study or training
(including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.
Explanation 1 - For the purposes of this section, "person" includes any
University or a trust but does not include the Central Government.
Explanation 2 - For the purposes of this section "admission capacity" in
relation to any course of study or training (including postgraduate course
of study or training) in a medical college, means the maximum number of
students that may be fixed by the Council from time to time for being
admitted to such course or training.
2. (a) Every person or medical college shall, for the purpose of
obtaining permission under sub-section (1), submit to the Central
Government a Scheme in accordance with the provisions of clause (b) and the
Central Government shall refer the Scheme to the Council for its
recommendations.
(b). The Scheme referred to in clause (a) shall be in such form and contain
such particulars and be preferred in such manner and be accompanied with
such fee as may be prescribed.
3. On receipt of a Scheme by the Council under sub-section (2) the
Council may obtain such other particulars as may be considered necessary by
it from the person or the medical college concerned, and thereafter, it may
-
(a) if the Scheme is defective and does not contain any necessary
particulars, give a reasonable opportunity to the person or college
concerned for making a written representation and it shall be open to such
person or medical college to rectify the defects, if any, specified by the
Council.
(b) consider the Scheme, having regard to the factors referred to in sub-
section (7) and submit the Scheme together with its recommendations thereon
to the Central Government.
4. The Central Govt. 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 or college 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):
Provided that no Scheme shall be disapproved by the Central Government
except after giving the person or college concerned a reasonable
opportunity of being heard;
Provided further that nothing in this sub section shall prevent any
person or medical college whose Scheme has not been approved by the Central
Government to submit a fresh Scheme and the provisions of this section
shall apply to such Scheme, as if such Scheme has been submitted for the
first time under sub-section (1).
5. Where, within a period of one year from the date of submission of the
Scheme to the Central Government under sub-section (1), no order passed by
the Central Government has been communicated to the person or college
submitting the Scheme, such Scheme shall be deemed to have been approved by
the Central Government in the form in which it had been submitted, and
accordingly, the permission of the Central Government required under sub-
section (1) shall also be deemed to have been granted.
6. In computing the time-limit specified in sub-section (5), the time
taken by the person or college concerned submitting the Scheme, in
furnishing any particulars called for by the Council, or by the Central
Government, shall be excluded.
7. The Council, while making its recommendations under clause (b) of sub-
section (3) and the Central Government, while passing an order, either
approving or disapproving the Scheme under sub-section (4), shall have due
regard to the following factors, namely:-
(a) whether the proposed medical college or the existing medical college
seeking to open a new or higher course of study or training, would be in a
position to offer the minimum standards of medical education as prescribed
by the Council under section 19A or, as the case may be under section 20 in
the case of postgraduate medical education.
(b) whether the person seeking to establish a medical college or the
existing medical college seeking to open a new or higher course of study or
training or to increase it admission capacity has adequate financial
resources;
(c) whether necessary facilities in respect of staff, equipment,
accommodation, training and other facilities to ensure proper functioning
of the medical college or conducting the new course or study or training or
accommodating the increased admission capacity, have been provided or would
be provided within the time-limit specified in the Scheme.
(d) whether adequate hospital facilities, having regard to the number or
students likely to attend such medical college or course of study or
training or as a result of the increased admission capacity, have been
provided or would be provided within the time-limit specified in the
Scheme;
(e) whether any arrangement has been made or programme drawn to impart
proper training to students likely to attend such medical college or course
of study or training by persons having the recognised medical
qualifications;
(f) the requirement of manpower in the field of practice of medicine;
(g) and any other factors as may be prescribed.
8. Where the Central Government passes an order either approving or
disapproving a Scheme under this section, a copy of the order shall be
communicated to the person or college concerned.”
5. Section 10A contemplates submission of a Scheme to the Central
Government in prescribed form, which Scheme is then to be referred by the
Central Government to the MCI for its appropriate recommendations. The
Scheme is to be considered having regard to the features referred to in Sub-
Section 7 and is then placed before the Central Government along with the
recommendations of the MCI. In exercise of powers conferred by Section 10A
read with Section 33 of the Act, the MCI with the previous sanction of the
Central Government has made “Establishment of the Medical College
Regulations, 1999” (hereinafter referred to as the Regulations) which were
published in the Gazette of India on 28.8.1999. Paragraph 3 of the
Regulations lays down that no person shall establish a medical college
except after obtaining prior permission of the Central Government by
submitting a Scheme. The Regulations then deal with the Scheme in extenso.
Clauses 1 and 2 of the Scheme deal with ‘Eligibility Criteria’ and
‘Qualifying Criteria’ respectively. Clause 3 then sets out certain
requirement in Parts (i), (ii) and (iii) concerning various details about
the status of the applicant in terms of the eligibility criteria, name and
address of the Medical College including various facets of the
infrastructure and planning and the details of the existing hospital
including availability of various facilities and capacities as also
upgradation and expansion programme.
6. Paragraph 7 of the Regulations deals with report of the MCI while
Para 8 deals with grant of permission by the Central Government. Paragraphs
7 and 8 of the Regulations are as under:-
“7. REPORT OF THE MEDICAL COUNCIL OF INDIA:
(a) After examining the application and after conducting necessary
physical inspections, the Medical Council shall send to the Central
Government a factual report stating –
1. that the applicant fulfils the eligibility and qualifying criteria.
that the person has a feasible and time bound programme to set up the
proposed medical college alongwith required infrastructural facilities
including adequate hostels facilities separate for boys and girls, and as
prescribed by the Council, commensurate with the proposed intake of
students, so as to complete the medical college within a period of four
years from the date of grant of permission;
3. that the person has a feasible and time bound expansion programme to
provide additional beds and infrastructural facilities, as prescribed by
the Medical Council of India, by way of upgradation of the existing
hospital or by way of establishment of new hospital or both and further
that the existing hospital as adequate clinical material for starting 1st
year course.
4. that the person has the necessary managerial and financial capabilities
to establish and maintain the proposed medical college and its ancillary
facilities including a teaching hospital.
5. that the applicant has a feasible and time bound programme for
recruitment of faculty and staff as per prescribed norms of the Council and
that the necessary posts stand created.
6. that the applicant has appointed staff for the 1st year as per MCI
norms.
7. that the applicant has not admitted any students.
8. Deficiencies, if any, in the infrastructure or faculty shall be pointed
out indicating whether these are remediable or not.
(b) The recommendation of the Council whether Letter of Intent should be
issued and if so, the number of seats per academic year should also be
recommended. The Council shall recommend a time bound programme for the
establishment of the medical college and expansion of the hospital
facilities. This recommendation will also include a clear cut statement of
preliminary requirements to be met in respect of buildings, infrastructural
facilities, medical and allied equipments, faculty and staff before
admitting the first batch of students. The recommendation will also define
annual targets to be achieved by the person to commensurate with the intake
of students during the following years.
(c) Where the Council recommends for not issuing of Letter of Intent, it
shall furnish to the Central Government:
(i) its reasons for not granting the Central Government permission; and
(ii) documents/facts on the basis of which the Council recommends the
disapproval of the Scheme.
(d) The recommendation of the Council shall be in Form-4.
RECONSIDERATION
Wherever the Council in its report has not recommended the issue of Letter
of Intent to the person, it may upon being so required by the Central
Government reconsider the application and take into account new or
additional information as may be forwarded by the Central Government. The
Council shall, thereafter, submit its report in the same manner as
prescribed for the initial report.
8. GRANT OF PERMISSION:
(1) The Central Government on the recommendation of the Council may issue a
Letter of Intent to set up a new medical college with such conditions or
modifications in the original proposal as may be considered necessary.
This letter of Intent will also include a clear cut statement of
preliminary requirements to be met in respect of buildings, infrastructural
facilities, medical and allied equipments, faculty and staff before
admitting the first batch of students. The formal permission may be
granted after the above conditions and modifications are accepted and the
performance bank guarantees for the required sums are furnished by the
person and after consulting the Medical Council of India.
(2) The formal permission may include a time bound programme for the
establishment of the medical college and expansion of the hospital
facilities. The permission may also define annual targets as may be fixed
by the Council to be achieved by the person to commensurate with the intake
of students during the following years.
(3) The permission to establish a medical college and admit students may be
granted initially for a period of one year and may be renewed on yearly
basis subject to verification of the achievements of annual targets. It
shall be the responsibility of the person to apply to the Medical Council
of India for purpose of renewal six months prior to the expiry of the
initial permission. This process of renewal of permission will continue
till such time the establishment of the medical college and expansion of
the hospital facilities are completed and a formal recognition of the
medical college is granted. Further admissions shall not be made at any
stage unless the requirements of the Council are fulfilled. The Central
Government may at any stage convey the deficiencies to the applicant and
provide him an opportunity and time to rectify the deficiencies.
(4) The council may obtain any other information from the proposed medical
college as it deems fit and necessary.”
7. Paragraph 8 of the Regulations states that permission to establish
new Medical College may be granted initially for a period of one year and
would be renewed on yearly basis subject to verification of the
achievements of annual targets. The process of renewal of permission
continues till such time that the establishment of the Medical College and
expansion of hospital facilities are completed and formal recognition is
granted to the Medical College. A Medical College which gets initial
permission to establish and admit first batch of students will thus be
required to seek renewal till such time that it gets formal recognition and
the students admitted in the first batch are ready to pass out and secure
recognized medical qualification. This process thus continues for five
years and Category No. III as stated herein above are cases of such Medical
Colleges.
8. The Schedule to the Regulations sets out various stages dealing with
processing of applications preferred by the Medical Colleges and how the
matter is to be dealt with at various stages. This schedule has undergone
changes over a period of time. The schedule as it existed originally was as
under:-
“SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL
COLLEGES AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND
THE MEDICAL COUNCIL OF INDIA
|Sl.|Stage of processing |Last Date |
|No | | |
|1. |Receipt of applications by |From 1st August|
| |the Central Government |to 31st August |
| | |(both days |
| | |inclusive) of |
| | |any year |
|2. |Receipt of applications by |30th September |
| |MCI from the Central | |
| |Government | |
|3. |Recommendations of the |31st December |
| |Medical Council of India to | |
| |the Central Government for | |
| |issue of letter of intent | |
|4. |Issue of letter of intent by |31st January |
| |the Central Government | |
|5. |Receipt of reply from the |28th February |
| |applicant by the Central | |
| |Government requesting for | |
| |letter of permission | |
|6. |Receipt of letter from the |15th March |
| |Central Government by the | |
| |Medical Council of India for | |
| |consideration for issue of | |
| |letter of permission | |
|7. |Recommendations of the |15th June |
| |Medical Council of India to | |
| |the Central Government for | |
| |issue of letter of permission| |
|8. |Issue of letter of permission|15th July |
| |by the Central Government | |
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.”
9. After the amendment vide Notification published on 28.08.2009
the Schedule underwent some modifications namely, as against serial
numbers 3, 4, 5, 6, 7 and 8 the dates as modified were; 15th December, 15th
January, 15th February, 1st March, 15th May and 15th June respectively.
Notes 1 and 2 were not modified at all and continued to remain as they
were.
10. The Regulations were further amended by Amendment Notification dated
21.09.2012 which was published in the Gazette of India on 1.10.2012. It
substituted the Schedule and added a Note. The relevant portion of the
Notification is as under:-
“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” …………………………
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 705/2014
Royal Medical Trust (Regd) and Another. ……Petitioners.
Versus
Union of India and Another. …. Respondents
WITH
W.P.(C) No.700 of 2014, W.P.(C) No.707 of 2014, W.P.(C) No.784 of 2014,
W.P.(C) No.862 of 2014, W.P.(C) No.523 of 2014, W.P.(C) No.799 of 2014,
W.P.(C) No.819 of 2014,
AND
C.A. No. 6481 of 2015 @ SLP(C) No.21765 of 2014,
C.A. No. 6482 of 2015@ SLP (C) No.22755 of 2014,
C.A. No. 6483 of 2015@ SLP (C) No.22756 of 2014,
C.A. No. 6484 of 2015 @ SLP(C) No. 22757 of 2014
C.A. No. 6485 of 2015 @ SLP(C) No.22974 of 2014,
C.A. No. 6486 of 2015 @ SLP(C) No.23512 of 2014,
C.A. Nos. 6488-6489 of 2015 @ SLP(C) Nos.23528-29 of 2014,
C.A. No. 6492 of 2015 @ SLP(C) No.23476 of 2014,
C.A. Nos. 6493-6494 of 2015 @ SLP(C) Nos.24150-51 of 2014,
C.A. No. 6509 of 2015 @ SLP(C) No.24154 of 2014,
C.A. No. 6495 of 2015 @ SLP(C) No.24665 of 2014,
C.A. No. 6496 of 2015 @ SLP(C) No.24913 of 2014,
C.A. No. 6497 of 2015 @ SLP(C) No.25763 of 2014,
C.A. No. 6498 of 2015 @ SLP(C) No.21517 of 2014,
C.A. Nos. 6499-6500 of 2015 @ SLP(C) Nos.26296-97 of 2014,
C.A. Nos. 6503-6504 of 2015 @ SLP(C) Nos.26768-69 of 2014,
C.A. Nos. 6505-6506 of 2015 @ SLP(C) Nos.24754-55 of 2014,
C.A. Nos. 6507-6508 of 2015 @ SLP(C) Nos.25468-69 of 2014,
C.A. Nos. 6501-6502 of 2015 @ SLP(C) Nos.26758-59 of 2014,
SLP(C) No.22785 of 2014, SLP(C) No.27034 of 2014
AND Transfer Petition (C) No.1217 of 2014
J U D G M E N T
Uday Umesh Lalit J.
1. These petitions (except SLP(C) Nos.22785 of 2014 and 27034 of 2014)
arise out of communications issued by the Central Government recommending
disapproval of applications preferred in respect of Medical Colleges of the
applicants for the academic year 2014-2015. In these petitions, after
conducting inspection of the respective Medical Colleges the Medical
Council of India (MCI for short) had found infirmities or inadequacies in
the infrastructure, facilities and faculty. The respective applicants then
claimed that they had rectified the shortcomings and asked for compliance
verification. But the Central Government and/or the MCI refused to
undertake any fresh inspection for verification, for want of adequate time.
This being the common feature in all these petitions, they were heard
together and are being disposed by this common judgment.
2. Broadly the categories of Medical Colleges presently before the Court
are:-
(I) Cases where new Medical Colleges are sought to be established for the
first time and where such colleges are seeking appropriate permission to
admit students to the first year of MBBS course namely:-
(1) WP(C) No.700/2014, (2) WP(C) No.705/2014 (3) WP(C)
No.819/2014 (4) SLP(C) No.22757/2014 (5) SLP(C) No.22756/2014 (6)
SLP(C) No. 24913/2014 (7) SLP (C) No. 23512/2014. The Respondent in this
petition has also preferred Transfer Petition (C) No.1217 of 2014 to have
his writ petition pending in the High Court of Bombay to be transferred to
this Court.
(II) Cases where the existing approved Medical Colleges are seeking
increase in intake of seats for admissions of students to the first year of
MBBS Course namely:
(1) WP(C) No.523/2014 (2) WP(C) No.707/2014
(3) WP(C) No.862/2014.
(III) Medical Colleges seeking renewal of permission, who have already
received permission in the previous year(s) either for establishing new
Medical College or for increasing intake capacity of the existing Medical
College. In this category of cases, the renewal for subsequent batches and
for permission to admit students to the first year course is sought namely:
WP(C) No.784/2014 (2) WP(C) No.799/2014
(3) SLP(C) No.21517/2014 (4) SLP(C) No.21765/2014
(5) SLP(C) No.22755/2014 (6) SLP(C) No.26758-59/2014
(7) SLP(C) No.23476/2014 (8) SLP(C) No.23528-29/2014
(9) SLP(C) No.24154/2014 (10) SLP(C) Nos.24150-51/2014
(11) SLP(C) No.24665/2014 (12) SLP(C) No.24754-55/2014
(13) SLP(C)No.25763/2014 (14) SLP(C) No. 25468-69/2014
(15) SLP(C)No.22974 /2014 (16) SLP(C) Nos.26296-97 /2014
and (17) SLP(C) Nos.26768-69/2014.
3. Reduction in seats in a Dental College is challenged in Special Leave
Petition (C) No.22785 of 2014. This being a completely distinct matter,
is de-tagged and it be listed before an appropriate Bench. Further SLP(C)
No.27034 of 2014 is filed in public interest by an individual claiming that
as on 23.09.2014 about 76 seats were lying vacant in different colleges in
Jharkhand. No separate orders are called for in this petition and it be
taken to be disposed of in the light of our discussion hereinafter.
STATUTORY PROVISIONS
4. The statutory provisions concerning permission for establishment of
new Medical College and for increase in intake are to be found in Section
10A of the Indian Medical Council Act, 1956 (hereinafter referred to as the
Act) and the Regulations framed under the Act. Said Section 10A is as
under:-
“10A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF
STUDY ETC.
1. Notwithstanding anything contained in this Act or any other law for the
time being in force:-
(a) no person shall establish a medical college
(b) no medical college shall:-
(i) open a new or higher course of study or training (including a
postgraduate course of study or training) which would enable a student of
such course or training to qualify himself for the award of any recognised
medical qualification; or
(ii) increase its admission capacity in any course of study or training
(including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.
Explanation 1 - For the purposes of this section, "person" includes any
University or a trust but does not include the Central Government.
Explanation 2 - For the purposes of this section "admission capacity" in
relation to any course of study or training (including postgraduate course
of study or training) in a medical college, means the maximum number of
students that may be fixed by the Council from time to time for being
admitted to such course or training.
2. (a) Every person or medical college shall, for the purpose of
obtaining permission under sub-section (1), submit to the Central
Government a Scheme in accordance with the provisions of clause (b) and the
Central Government shall refer the Scheme to the Council for its
recommendations.
(b). The Scheme referred to in clause (a) shall be in such form and contain
such particulars and be preferred in such manner and be accompanied with
such fee as may be prescribed.
3. On receipt of a Scheme by the Council under sub-section (2) the
Council may obtain such other particulars as may be considered necessary by
it from the person or the medical college concerned, and thereafter, it may
-
(a) if the Scheme is defective and does not contain any necessary
particulars, give a reasonable opportunity to the person or college
concerned for making a written representation and it shall be open to such
person or medical college to rectify the defects, if any, specified by the
Council.
(b) consider the Scheme, having regard to the factors referred to in sub-
section (7) and submit the Scheme together with its recommendations thereon
to the Central Government.
4. The Central Govt. 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 or college 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):
Provided that no Scheme shall be disapproved by the Central Government
except after giving the person or college concerned a reasonable
opportunity of being heard;
Provided further that nothing in this sub section shall prevent any
person or medical college whose Scheme has not been approved by the Central
Government to submit a fresh Scheme and the provisions of this section
shall apply to such Scheme, as if such Scheme has been submitted for the
first time under sub-section (1).
5. Where, within a period of one year from the date of submission of the
Scheme to the Central Government under sub-section (1), no order passed by
the Central Government has been communicated to the person or college
submitting the Scheme, such Scheme shall be deemed to have been approved by
the Central Government in the form in which it had been submitted, and
accordingly, the permission of the Central Government required under sub-
section (1) shall also be deemed to have been granted.
6. In computing the time-limit specified in sub-section (5), the time
taken by the person or college concerned submitting the Scheme, in
furnishing any particulars called for by the Council, or by the Central
Government, shall be excluded.
7. The Council, while making its recommendations under clause (b) of sub-
section (3) and the Central Government, while passing an order, either
approving or disapproving the Scheme under sub-section (4), shall have due
regard to the following factors, namely:-
(a) whether the proposed medical college or the existing medical college
seeking to open a new or higher course of study or training, would be in a
position to offer the minimum standards of medical education as prescribed
by the Council under section 19A or, as the case may be under section 20 in
the case of postgraduate medical education.
(b) whether the person seeking to establish a medical college or the
existing medical college seeking to open a new or higher course of study or
training or to increase it admission capacity has adequate financial
resources;
(c) whether necessary facilities in respect of staff, equipment,
accommodation, training and other facilities to ensure proper functioning
of the medical college or conducting the new course or study or training or
accommodating the increased admission capacity, have been provided or would
be provided within the time-limit specified in the Scheme.
(d) whether adequate hospital facilities, having regard to the number or
students likely to attend such medical college or course of study or
training or as a result of the increased admission capacity, have been
provided or would be provided within the time-limit specified in the
Scheme;
(e) whether any arrangement has been made or programme drawn to impart
proper training to students likely to attend such medical college or course
of study or training by persons having the recognised medical
qualifications;
(f) the requirement of manpower in the field of practice of medicine;
(g) and any other factors as may be prescribed.
8. Where the Central Government passes an order either approving or
disapproving a Scheme under this section, a copy of the order shall be
communicated to the person or college concerned.”
5. Section 10A contemplates submission of a Scheme to the Central
Government in prescribed form, which Scheme is then to be referred by the
Central Government to the MCI for its appropriate recommendations. The
Scheme is to be considered having regard to the features referred to in Sub-
Section 7 and is then placed before the Central Government along with the
recommendations of the MCI. In exercise of powers conferred by Section 10A
read with Section 33 of the Act, the MCI with the previous sanction of the
Central Government has made “Establishment of the Medical College
Regulations, 1999” (hereinafter referred to as the Regulations) which were
published in the Gazette of India on 28.8.1999. Paragraph 3 of the
Regulations lays down that no person shall establish a medical college
except after obtaining prior permission of the Central Government by
submitting a Scheme. The Regulations then deal with the Scheme in extenso.
Clauses 1 and 2 of the Scheme deal with ‘Eligibility Criteria’ and
‘Qualifying Criteria’ respectively. Clause 3 then sets out certain
requirement in Parts (i), (ii) and (iii) concerning various details about
the status of the applicant in terms of the eligibility criteria, name and
address of the Medical College including various facets of the
infrastructure and planning and the details of the existing hospital
including availability of various facilities and capacities as also
upgradation and expansion programme.
6. Paragraph 7 of the Regulations deals with report of the MCI while
Para 8 deals with grant of permission by the Central Government. Paragraphs
7 and 8 of the Regulations are as under:-
“7. REPORT OF THE MEDICAL COUNCIL OF INDIA:
(a) After examining the application and after conducting necessary
physical inspections, the Medical Council shall send to the Central
Government a factual report stating –
1. that the applicant fulfils the eligibility and qualifying criteria.
that the person has a feasible and time bound programme to set up the
proposed medical college alongwith required infrastructural facilities
including adequate hostels facilities separate for boys and girls, and as
prescribed by the Council, commensurate with the proposed intake of
students, so as to complete the medical college within a period of four
years from the date of grant of permission;
3. that the person has a feasible and time bound expansion programme to
provide additional beds and infrastructural facilities, as prescribed by
the Medical Council of India, by way of upgradation of the existing
hospital or by way of establishment of new hospital or both and further
that the existing hospital as adequate clinical material for starting 1st
year course.
4. that the person has the necessary managerial and financial capabilities
to establish and maintain the proposed medical college and its ancillary
facilities including a teaching hospital.
5. that the applicant has a feasible and time bound programme for
recruitment of faculty and staff as per prescribed norms of the Council and
that the necessary posts stand created.
6. that the applicant has appointed staff for the 1st year as per MCI
norms.
7. that the applicant has not admitted any students.
8. Deficiencies, if any, in the infrastructure or faculty shall be pointed
out indicating whether these are remediable or not.
(b) The recommendation of the Council whether Letter of Intent should be
issued and if so, the number of seats per academic year should also be
recommended. The Council shall recommend a time bound programme for the
establishment of the medical college and expansion of the hospital
facilities. This recommendation will also include a clear cut statement of
preliminary requirements to be met in respect of buildings, infrastructural
facilities, medical and allied equipments, faculty and staff before
admitting the first batch of students. The recommendation will also define
annual targets to be achieved by the person to commensurate with the intake
of students during the following years.
(c) Where the Council recommends for not issuing of Letter of Intent, it
shall furnish to the Central Government:
(i) its reasons for not granting the Central Government permission; and
(ii) documents/facts on the basis of which the Council recommends the
disapproval of the Scheme.
(d) The recommendation of the Council shall be in Form-4.
RECONSIDERATION
Wherever the Council in its report has not recommended the issue of Letter
of Intent to the person, it may upon being so required by the Central
Government reconsider the application and take into account new or
additional information as may be forwarded by the Central Government. The
Council shall, thereafter, submit its report in the same manner as
prescribed for the initial report.
8. GRANT OF PERMISSION:
(1) The Central Government on the recommendation of the Council may issue a
Letter of Intent to set up a new medical college with such conditions or
modifications in the original proposal as may be considered necessary.
This letter of Intent will also include a clear cut statement of
preliminary requirements to be met in respect of buildings, infrastructural
facilities, medical and allied equipments, faculty and staff before
admitting the first batch of students. The formal permission may be
granted after the above conditions and modifications are accepted and the
performance bank guarantees for the required sums are furnished by the
person and after consulting the Medical Council of India.
(2) The formal permission may include a time bound programme for the
establishment of the medical college and expansion of the hospital
facilities. The permission may also define annual targets as may be fixed
by the Council to be achieved by the person to commensurate with the intake
of students during the following years.
(3) The permission to establish a medical college and admit students may be
granted initially for a period of one year and may be renewed on yearly
basis subject to verification of the achievements of annual targets. It
shall be the responsibility of the person to apply to the Medical Council
of India for purpose of renewal six months prior to the expiry of the
initial permission. This process of renewal of permission will continue
till such time the establishment of the medical college and expansion of
the hospital facilities are completed and a formal recognition of the
medical college is granted. Further admissions shall not be made at any
stage unless the requirements of the Council are fulfilled. The Central
Government may at any stage convey the deficiencies to the applicant and
provide him an opportunity and time to rectify the deficiencies.
(4) The council may obtain any other information from the proposed medical
college as it deems fit and necessary.”
7. Paragraph 8 of the Regulations states that permission to establish
new Medical College may be granted initially for a period of one year and
would be renewed on yearly basis subject to verification of the
achievements of annual targets. The process of renewal of permission
continues till such time that the establishment of the Medical College and
expansion of hospital facilities are completed and formal recognition is
granted to the Medical College. A Medical College which gets initial
permission to establish and admit first batch of students will thus be
required to seek renewal till such time that it gets formal recognition and
the students admitted in the first batch are ready to pass out and secure
recognized medical qualification. This process thus continues for five
years and Category No. III as stated herein above are cases of such Medical
Colleges.
8. The Schedule to the Regulations sets out various stages dealing with
processing of applications preferred by the Medical Colleges and how the
matter is to be dealt with at various stages. This schedule has undergone
changes over a period of time. The schedule as it existed originally was as
under:-
“SCHEDULE FOR RECEIPT OF APPLICATIONS FOR ESTABLISHMENT OF NEW MEDICAL
COLLEGES AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND
THE MEDICAL COUNCIL OF INDIA
|Sl.|Stage of processing |Last Date |
|No | | |
|1. |Receipt of applications by |From 1st August|
| |the Central Government |to 31st August |
| | |(both days |
| | |inclusive) of |
| | |any year |
|2. |Receipt of applications by |30th September |
| |MCI from the Central | |
| |Government | |
|3. |Recommendations of the |31st December |
| |Medical Council of India to | |
| |the Central Government for | |
| |issue of letter of intent | |
|4. |Issue of letter of intent by |31st January |
| |the Central Government | |
|5. |Receipt of reply from the |28th February |
| |applicant by the Central | |
| |Government requesting for | |
| |letter of permission | |
|6. |Receipt of letter from the |15th March |
| |Central Government by the | |
| |Medical Council of India for | |
| |consideration for issue of | |
| |letter of permission | |
|7. |Recommendations of the |15th June |
| |Medical Council of India to | |
| |the Central Government for | |
| |issue of letter of permission| |
|8. |Issue of letter of permission|15th July |
| |by the Central Government | |
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.”
9. After the amendment vide Notification published on 28.08.2009
the Schedule underwent some modifications namely, as against serial
numbers 3, 4, 5, 6, 7 and 8 the dates as modified were; 15th December, 15th
January, 15th February, 1st March, 15th May and 15th June respectively.
Notes 1 and 2 were not modified at all and continued to remain as they
were.
10. The Regulations were further amended by Amendment Notification dated
21.09.2012 which was published in the Gazette of India on 1.10.2012. It
substituted the Schedule and added a Note. The relevant portion of the
Notification is as under:-
“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.
|Sl. |Stage of processing |Last Date |
|No. | | |
|1 |Receipt of applications |From 1st August to|
| |by the Council |31st August (both |
| | |days inclusive) of|
| | |any year |
|2 |Issue of Letter of Intent|30th April |
| |by 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 |15th June |
| |Permission by the Council| |
Note : The time schedule indicated 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.”
EARLIER DECISIONS OF THIS COURT
11. The schedule to the Regulations, the stages mentioned therein
regarding processing of applications and the requirement to adhere to the
dates specified therein, were considered by this Court in some cases. In
Mridul Dhar v. Union of India[1] this Court was primarily concerned with
matters giving full effect to 15% All India Quota seats available in all
medical colleges run by the Union of India or the State Government or
Municipal or other local authorities by strictly adhering to the time
schedule. While so considering, this Court in para 28 quoted the Schedule
as it existed then, namely, the one referred to in paragraph 8 hereinabove.
In paragraph 35 this Court issued certain directions and direction Nos.14
and 15 were to the following effect:
“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. In Priyadarshini Dental College and Hospital v. Union of India and
others[2] this Court was called upon to consider the implications of
similar such Schedule annexed to the Regulations of Dental Council of
India. The statutory provisions and the Regulations under the Dentists
Act, 1948 are pari materia with those in the present case. Note No.2 below
the Schedule to the Regulations of Dental Council of India enables the
Central Government, for reasons to be recorded in writing, to modify the
Schedule in respect of any class or category of applications. In this
backdrop paragraph Nos.19 and 20 of the decision in Priyadarshini are
reproduced hereunder:
“19. Regulation 11(2) clearly lays down a time schedule for the
submission of applications for renewal of permission (six months prior to
the expiry of the current academic session), for recommendation by DCI
(15th June) and for issue of final orders by the Central Government
regarding renewal of permission (15th July). Though, the DCI Regulations
provide that the last date for issue of letter of permission or renewal of
permission by the Central Government is 15th July, having regard to the
scheme relating to grant of renewal of permission and Note 2 to the
Schedule, the Central Government has the discretion to modify the time
schedule in appropriate cases, for reasons to be recorded, in respect of
any class or category of applications.
20. If the Central Government was of the view that a dental college
deserved renewal of permission in accordance with the Act and the
Regulations, it should grant such permission. If it was of the view that
the dental college did not deserve renewal of permission, it should refuse
the permission. If the Central Government felt that the last date for
granting renewal of permission was over and there was no justification for
extending the time schedule, it could refuse the renewal of permission on
that ground. On the other hand, if the Central Government was of the view
that the applicant College had complied with the requirements and was not
at fault, and it was not responsible in any manner for the delay in
considering the application, and there were other applicants of similar
nature, it could have recorded those reasons in writing and extended the
time schedule for that category of applicants and then granted the renewal
of permission, provided the last date for admissions had not expired. Note
2 to the Schedule to the DCI Regulations enables the Central Government to
modify the time schedule, for reasons to be recorded in writing, in respect
of any class or category of applications. The applicants for renewal of
permission for the fourth or fifth year, where there is compliance with the
requirements relating to infrastructure, equipment and faculty, could be
such a class or category of applications. Similarly, applications where the
High Courts have directed consideration beyond 15th July in view of special
circumstances can also constitute a class or category of applicants.”
During the course of its Judgment in Priyadarshini under caption “A
Suggestion for modification of time Schedule” this Court in paragraphs 23
to 25 observed as under:
“23. In all these cases, the petitioners, who were the applicants for
renewal were existing dental colleges, which were functioning for three or
four years and each college had admitted hundreds of students either
directly or through the State Government allotment. The colleges had the
benefit of initial permission and several renewals of permission. Refusal
of renewal of permission in such cases should not be abrupt nor for
insignificant or technical violations. Nor should such applications be
dealt in a casual manner, by either granting less than a week for setting
right the “deficiencies” or not granting an effective hearing before
refusal. The entire process of verification and inspection relating to
renewal of permission, should be done well in time so that such existing
colleges have adequate and reasonable time to set right the deficiencies or
offer explanations to the deficiencies. The object of providing for annual
renewal of permissions for four years, is to ensure that the
infrastructural and faculty requirements are fulfilled in a gradual manner,
and not to cause disruption.
24. In the context of what has happened in these cases, it is necessary
to emphasise the distinction between the applications for fresh permissions
and applications for renewal of permissions. They require distinct time
schedules. The process of decision-making under the Regulations, for grant
of fresh or initial permission for establishment of new dental colleges is
exhaustive and elaborate, when compared to the process of decision-making
in regard to grant of renewal of permission for the four subsequent years.
Before grant of initial grant of permission, the DCI and the Central
Government are required to consider the following aspects: whether the
institution would be in a position to offer the minimum standards of dental
education in conformity with the Act and the Regulations; whether the
institution has adequate resources; whether the institution has provided or
will provide within the time-limit specified in the scheme, necessary
staff, equipment, accommodation, training and other facilities to ensure
proper functioning of the institution; whether the institution has provided
or would provide within the time-limit specified in the scheme, adequate
hospital facilities; whether faculty having recognised dental
qualifications and personnel in the field of practice of dentistry will be
available to impart proper training to the students; and whether other
factors prescribed by the Regulations have been complied. On the other
hand, for the purpose of grant of renewal of permission, DCI has to make
recommendations by considering only whether the prescribed faculty and
infrastructure are available.
25. The need for renewal of permission emanates from the fact that a
newly established college is not required to have in place, full complement
of the teaching faculty and complete infrastructure in the first year
itself. This is because, during the first year, the college will be
catering only to a limited number of first year students. During the
second, third and fourth and fifth years, the student strength will
increase. If the permitted intake is 100, usually there will be 100
students in the first year, 200 students in the second year, 300 students
in the third year, 400 students in the fourth year and 500 students in the
fifth year. Thereafter, the strength may remain constant. As the strength
increases gradually every year, correspondingly the infrastructure and
faculty will have to be increased.”
13. In a subsequent decision in Priya Gupta v. State of Chhattisgarh and
others[3] this Court in paragraph 32 reproduced the Schedule and the Notes
thereunder as referred to in Mridul Dhar and in paragraph 40 it was stated
thus:
“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
counseling. 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.”
The relevant directions issued in Priya Gupta by this Court in
paragraphs 46.1 46.3. 46.4. 47, 47.1 and 47.5 were as under:
“46.1. The commencement of new courses or increases in seats of existing
courses of MBBS/BDS are to be approved/recognised by the Government of
India by 15th July of each calendar year for the relevant academic sessions
of that year.
46.3. After 15th July of each year, neither the Union of India nor the
Medical or Dental Council of India shall issue any recognition or approval
for the current academic year. If any such approval is granted after 15th
July of any year, it shall only be operative for the next academic year and
not in the current academic year. Once the sanction/approval is granted on
or before 15th July of the relevant year, the name of that college and all
seats shall be included in both the first and the second counselling, in
accordance with the Rules.
46.4. Any medical or dental college, or seats thereof, to which the
recognition/approval is issued subsequent to 15th July of the respective
year shall not be included in the counselling to be conducted by the
authority concerned and that college would have no right to make admissions
in the current academic year against such seats.
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.
47.5. The college which grants admission for the current academic year,
where its recognition/approval is granted subsequent to 15th July of the
current academic year, shall be liable for withdrawal of
recognition/approval on this ground, in addition to being liable to
indemnify such students who are denied admission or who are wrongfully
given admission in the college.”
It may be mentioned here that the Schedule as it stood then, when
this Court rendered its Judgment in Priya Gupta did not enable the Central
Government to modify the schedule, as was permissible under the concerned
Dental Council of India Regulations considered by this Court in
Priyadarshini. On and with effect from 01.10.2012 i.e. after the Judgment
in Priya Gupta, the substituted Schedule now empowers the Central
Government to that effect.
14. It may further be mentioned that while considering the provisions of
the Act and the Medical Council of India Regulations on Graduate Medical
Education, 1997, this Court in Medical Council of India vs. Madhu
Singh[4] in para 23 had directed inter alia:-
“(i) There is no scope for admitting students midstream as that would be
against the very spirit of statutes governing medical education;
………………………
……………………
(iv) MCI shall ensure that the examining bodies fix a time schedule
specifying the duration of this course, the date of commencement of the
course and the last date for admission;
……………………
………………………
(vi) no variation of the schedule so far as admissions are concerned shall
be allowed;
(vii) in case of any deviation by the institution concerned, action as
prescribed shall be taken by MCI.”
THE PRESENT CASES
15. In the instant cases, during inspections conducted by the MCI in
respect of Medical Colleges falling in Categories I, II and III as stated
above, certain deficiencies were found which were then communicated to the
concerned applicants. According to the concerned applicants, either the
deficiencies were wrongly noted or they had since then been rectified and
compliance was reported. Though compliance was so reported and the Central
Government / the MCI were asked to have inspection to verify such
compliance, the Central Government communicated its disapproval without
taking any steps to assess or verify the compliance report. By way of
illustration we may set out relevant facts in Writ Petition (C) No.705 of
2014 which are as under:-
(a) The scheme under Section 10A of the Act for establishing a new
medical college by the applicant was placed before the Scrutiny Committee
of the MCI on 22.01.2014. The deficiencies in certain documents pertaining
to land and finance having been pointed out, the concerned documents were
furnished by the applicant on 07.02.2014. The matter was then placed
before the Executive Committee of the MCI on 14.03.2014 which decided to
accept the application subject to compliance of certain requirements.
These were complied with by the applicant on 14.04.2014.
(b) A surprise inspection was undertaken on 26.05.2014 and 27.05.2014 in
which certain deficiencies in infrastructure, faculty and clinical material
were found. Considering these deficiencies to be serious, the Executive
Committee of the MCI decided to disapprove the application and the decision
was so communicated to the Central Government on 14.06.2014.
(c) On 26.06.2014 the applicant reported compliance and submitted that
the deficiencies stood removed. A Committee appointed by the Central
Government to grant personal hearing to all such colleges where negative
recommendations were given by the MCI, granted personal hearing to the
applicant and forwarded compliance report dated 26.06.2014 for verification
and appropriate action.
(d) The Executive Committee of the MCI however in its communication dated
10.07.2014 stated that no compliance/verification could be undertaken for
the academic year 2014-15. Thereafter Central Government vide its letter
dated 15.07.2015 disapproved the scheme submitted by the applicant in view
of the inability of the MCI to assess/verify the compliance.
(e) In the circumstances the applicant filed Writ Petition (C) No.705 of
2014 in this Court submitting, inter alia, that the inspection was
conducted almost after eight months thereby pushing the matter to such
levels where it became impossible for the MCI to assess the compliance
report and that the MCI ought to have paced itself in accordance with
mandatory time schedule so that all the stages could possibly and
effectively be undertaken before the dead line mentioned in the Schedule.
(f) In reply it was submitted by the MCI that every applicant submitting
a scheme is obliged to fulfill minimum norms as on the date of application
but generally such applicants request for postponement of inspection so
that they get additional time to put their house in order. Resultantly the
inspection teams appointed by it are under tremendous workload in and
around April/May. It further submitted that it had obtained legal opinion
to the effect that in view of the decision in Priya Gupta it was
impermissible to undertake any inspection after 15th of June and as such no
verification of compliance report could be undertaken.
16. The facts mentioned above as obtaining in Writ Petition (C) No.705
of 2014 are illustrative and the fact situation so also the submissions in
the other matters are more or less identical and the communications of
disapproval by the Central Government in concerned cases were also on the
same date i.e. on 15.07.2014. In most of the matters the applicants
approached this Court under Article 32 of the Constitution of India while
in some cases they went to the High Court. In certain cases the High Court
directed the Central Government and the MCI to undertake fresh inspection.
These orders, at the instance of the MCI are under challenge, in which this
Court suspended the operation of directions so issued by the High Court.
In some cases the High Court did not grant any interim relief and the
applicants have preferred special leave petitions challenging the
correctness of such refusal.
INTERIM DIRECTIONS
17. During the course of hearing, an affidavit was filed on behalf of the
Union of India on 18.09.2014 stating inter alia,
(i) The total intake capacity of MBBS seats in the country increased from
51598 in 2013-2014 to 54348 in 2014-2015. However renewal of seats was not
permitted in case of 3920 seats in 2014-2015 and as such there was a net
loss of 1170 MBBS seats in 2014-2015.
(ii) The MCI had recommended for disapproval of renewal in case of 8667
seats. However renewal permission in case of 4747 MBBS seats in 73
Government Medical Colleges was granted by the Central Government on the
last day i.e. 15.07.2014, by relying on the undertaking/compliance given by
respective State Governments.
(iii) The Central Government issued disapproval letters to 46 Medical
Colleges including 41 Private Medical Colleges with 3685 MBBS seats and 5
Government Medical Colleges with 235 seats for the year 2014-2015.
18. Since the deadline for effecting admission as per Medical Council of
India Regulations on Graduate Medical Education, 1997 namely 30.09.2014 was
approaching and large number of seats were involved because of
recommendations for disapproval without having assessed or verified
compliance as reported by the applicants, the matters were considered for
grant of suitable relief. The Medical Colleges in Category III as
mentioned above alone were considered fit to be granted such relief as they
were all renewal cases. All these Medical Colleges had received permission
to set up and/or to increase the intake in previous year(s). The cases in
Category III being renewal cases were considered differently as against
other cases in the light of the law laid down in Priyadarshini. This Court
therefore by orders dated 18.09.2014 and 25.09.2014 permitted all the
medical colleges falling in category No.III to give fresh admissions in the
first year of the M.B.B.S. Course subject to certain conditions mentioned
in those orders. The Medical Colleges in that category were required to
file an undertaking on same terms as Government Medical Colleges that there
was no deficiency and that if the undertaking so submitted was found to be
incorrect in the next inspection, their deposit with the MCI, which was
around Rs.10 crores, would be forfeited by way of penalty. It was further
directed that admissions could be given to only those students from the
merit list prepared by the respective States and that the students would be
charged fees prescribed by the Government Medical Colleges of the
respective States. These orders were passed as the concerned medical
colleges had already received permission to establish new medical college
or to increase the intake capacity and the matters in issue were only
concerning renewal permissions and as the concerned colleges had statedly
removed deficiencies and submitted their compliance reports.
SUBMISSIONS
19. The matters were thereafter taken up for hearing. By this time the
dead line for effecting admissions for the academic year 2014-15 was over.
The learned counsel appearing for various applicants as well as the counsel
appearing for the Union of India and the Medical Council of India were
heard on the Statutory Scheme as well as parameters to be considered at
various stages, time schedule in the Regulations and the requirement to
adhere to such time schedule. We heard Mr. Kapil Sibal, Dr. Rajeev
Dhavan, Mr. Vishwanath Shetty, Mr. Mohan Parasaran and Mr. Nidhesh Gupta,
learned Senior Counsel appearing for various applicants, Mr. Vikas Singh,
learned counsel for MCI and Ms. Pinky Anand, learned Additional Solicitor
General for the Union of India. We must record our sincere appreciation for
the assistance rendered by the learned Counsel.
20. It was submitted on behalf of the applicants that:
Section 10A of the Act read with the Regulations and the Scheme framed
thereunder contemplates certain initial pre-requisites such as Essentiality
Certificate, Consent of Affiliation, a suitable plot of land as prescribed
and a three hundred bed hospital with necessary infrastructure and
facilities. If these qualifying pre-requisites are not met, the permission
to establish a medical college will certainly not be granted. However, in
none of the present cases, the denial or disapproval was on account of
inability to meet these qualifying pre-requisites.
According to sub-section (7) of Section 10A, the Scheme and the
Regulations, certain requirements like necessary facilities in respect of
staff, equipment, accommodation, training as well as hospital
facilities could be provided within the time limit specified in the Scheme.
Unlike the qualifying pre-requisites as stated earlier, these facilities
could be put in place and made effective at a later point of time.
Reading of sub-sections (3) , (4) and (8) of Section 10A read with Clauses
7 and 8 of the Regulations as well as the underlying idea behind sub-
section (7) of Section 10A would show that the concerned applicant ought to
be afforded time and sufficient opportunity to rectify the deficiencies.
Reliance was placed on the decision of this Court in Swamy Devi Dayal
Hospital & Dental College vs. Union of India.[5]
The compliance having been reported, the MCI and the Central Government
were obliged to assess whether such deficiencies stood removed or not.
Inability of the MCI to perform its statutory obligation and initiate
appropriate action within the time frame has penalized the respective
colleges for no fault of theirs.
(e)The MCI and the Central Government must arrange their affairs in such a
way that the respective stages in the Schedule are adhered to, affording
reasonable opportunity to the concerned medical colleges to rectify the
deficiencies. Having pushed the concerned colleges close to the dead line,
the MCI and the Central Government cannot then take refuge under the
Schedule and project their inability to carry out any compliance
verification.
(f) The Note under the Schedule to the regulations, as brought in by
Amendment Notification dated 21.9.2012 sufficiently enabled the Central
Government to modify the time schedule, as laid down by this Court in
Priyadarshini. The Central Government did make an exception and modified
the time limits in the Schedule in favour of Government medical colleges.
Similar such benefit ought to have been extended in favour of the private
Medical Colleges as well.
21. Mr. Vikas Singh, learned Senior Advocate submitted that the Scheme
contemplated that the concerned applicants must have the necessary
facilities, faculty and infrastructure in existence and operational as on
the day the application was made. He submitted that most of the
applicants themselves would request the MCI to conduct inspections as late
as possible, which would give additional time to the concerned applicants
to put the facilities in order. In these circumstances, the inspections
were carried out in the months of April and May. In his submission,
because of mandatory directions in Priya Gupta, the MCI refused to
undertake any inspection for compliance verification. He however fairly
accepted that in view of sub section (4) of Section 10 A of the Act, before
any disapproval of Scheme was recorded, reasonable opportunity ought to
have been given and that such opportunity is available even in Renewal
Cases in Category III. During the course of submissions he submitted Draft
Schedules, one pertaining to applications for Establishment of new Medical
Colleges and increase of admission capacity while the other relating to
cases of Renewal of Permission in an existing Medical College. Those Draft
Schedules are set out hereunder:-
Schedule for receipt of applications for establishment of new medical
colleges and increase of admission capacity in an existing medical college
and processing of the applications by the Central Government and the
Medical Council of India.
| |Stage of processing |Last date |
|1. |Receipt of applications by the |From 1st August to|
| |Central Government and Submission of |31st August (both |
| |Standard Assessment Form, Declaration|days inclusive) of|
| |Forms of the Faculty members and |any year. |
| |Resident Doctors & other documents by| |
| |the applicant to the MCI. | |
|2. |Receipt of applications by MCI from |30th September |
| |the Central Government. | |
|3. |Technical Scrutiny of the |31st October |
| |applications by the MCI. | |
|4. |Return of defective/incomplete |30th November |
| |applications by MCI to the Central | |
| |Government | |
|5. |Physical assessment of the applicant |31st January. |
| |medical colleges & communication of | |
| |deficiencies to the medical colleges | |
| |and to the Central Government. | |
|6. |Hearing by the Central Government |1st to 20th |
| |Under section 10A(4). |February |
|7. |Forwarding of Representation/ |28th February |
| |Compliances by the Central Government| |
| |to the MCI in cases where compliance | |
| |verification is required. | |
|8. |Compliance Verification assessment by|30th April |
| |the MCI. | |
|9. |Recommendations of the MCI to the |15th May |
| |Central Government for issuance of | |
| |letter of permission/disapproval of | |
| |the application. | |
|10.|Issue of letter of permission by the |15th June. |
| |Central Government. | |
SCHEDULE IN THE CASES OF RENEWAL OF PERMISSION IN AN EXISTING MEDICAL
COLLEGE BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA
| |Stage of processing |Last date |
|1. |Submission of Standard Assessment |30th September |
| |Forms, Declaration Forms of the Faculty| |
| |Members and Resident Doctors & Other | |
| |Documents by the medical college to the| |
| |MCI. | |
|2. |Physical assessment of the medical |31st January |
| |colleges & communication of | |
| |deficiencies to the medical college and| |
| |to the Central Government | |
|3. |Hearing by the Central Government Under|1st to 20th |
| |Section 10A(4) |February |
|4. |Forwarding of |28th February |
| |Representation/Compliances by the | |
| |Central Government to the MCI in cases | |
| |where compliance verification is | |
| |required. | |
|5. |Compliance verification assessment by |15th May |
| |the MCI & Recommendations of the MCI to| |
| |the Central Government for issuance of | |
| |letter of permission/or not to grant | |
| |renewal of permission. | |
|6. |Issue of letter of permission by the |15th June |
| |Central Government | |
DISCUSSION
22. We grant special leave to appeal in all the matters in categories I
and III.
23. While considering the Scheme under Section 10A of the Act, the MCI
and the Central Government are required to have due regard to the factors
referred to in sub-section (7) thereof. If the initial Scheme itself is
found to be defective or is to be disapproved, sub-section (3)(a) and
proviso to sub-section (4) of Section 10A oblige the MCI and the Central
Government respectively to grant to the applicant reasonable opportunity to
rectify the defects and of being heard. The Statute thus recognizes that
before any adverse decision is taken as regards the Scheme, the applicant
must be afforded reasonable opportunity. This facet has been considered by
this Court while dealing with issues under Section 10A of the Dentists Act
in Swami Devi Dayal. It was laid down that the requirement of following
the principles of natural justice is available at two stages, first where
the Dental Council of India finds deficiencies during its inspection and
secondly at the level of the Central Government before it passes any
adverse orders after receipt of the recommendations by the Dental Council
of India. The observations in Swami Devi Dayal while considering provisions
of Section 10A of the Dentists Act which are pari materia with Section
10A of the Act, must apply with equal force in relation to cases under the
Act. In paragraphs 22.2 and 22.3 it was laid down in Swami Devi Dayal as
under :
“22.2 It contemplates grant of opportunity of being heard at two stages.
First stage would be at the level of DCI after the scheme is submitted to
DCI under sub section (2) of Section 10A of the Act. Once it is found by
the DCI that all the parameters for granting permission are met, it
recommends the grant of approval of the scheme to the Central Government.
In case Scheme is found to be deficient, sub section (3) (a) of Section 10
A of the Act casts an obligation on the part of the DCI to give a
reasonable opportunity for making a written representation and also to
rectify the deficiencies, if any, specified by the DCI. Second stage of
adherence to the principles of natural justice is provided at the level of
Central Government at the time when it has to take final decision, after
the receipt of the recommendation sent by the DCI. This requirement of
hearing is stipulated in proviso to sub section (4) of Section 10A, in the
event the Central Government is proposing to disapprove the scheme.
22.3 The expression “opportunity of being heard” occurring in this
proviso would mean that the material that goes against the applicant and is
to be taken into consideration, is to be supplied to the applicant within
an opportunity to make representation. For this purpose either the report
of the DCI itself can be supplied or atleast the deficiencies pointed out
in the report have to be communicated by the Central Government to the
applicant with an opportunity to furnish its comments thereupon. At that
stage while giving its reply, if the applicant claims personal hearing,
such a personal hearing should also be accorded.”
24. The Scheme under Section 10A, with due regard to the factors referred
to in sub-section (7), may contemplate putting in place necessary
facilities at a later point of time. Paragraphs 7(b) and 8(3) of the
Regulations also speak of defining and achieving annual targets
respectively. Naturally, it needs to be assessed and verified whether such
annual targets are achieved or not. The timely assessment is integral to
the Scheme itself and the MCI and the Central Government are therefore
obliged and required to conduct renewal inspections every year so as to
ensure that the establishment of the Medical College and expansion of
hospital facilities are completed in time and in accordance with the
Scheme. In Swamy Devi Dayal it was observed that the provision requiring
such opportunity being given to the applicant applies not only at the
initial stage when permission for establishment of new College is under
consideration but must apply even in cases of subsequent renewal of such
permission. In our view, the ratio in Swamy Devi Dayal must apply as
regards cases of renewal under the Act.
25. As regards cases of renewal, it was laid down in Priyadarshini that
the process of decision making for grant of fresh or initial permission for
establishment of a new college is exhaustive and elaborate when compared to
such decision making in regard to grant of renewal of permission for the
four subsequent years. It was further stated that before grant of initial
permission the aspects whether the institution would be in a position to
offer the minimum standards of education in conformity with the Act and
Regulations and whether the institution has adequate resources and whether
the institution has provided or will be able to provide within the time
limit specified in the Scheme all the required facilities and faculty are
required to be considered and scrutinized very closely. On the other hand
for the purposes of grant of renewal what is required to be considered is
whether the prescribed faculty and infrastructure is available. Considering
renewal cases on a parameter distinct and different from that relating to
establishment of a new college for the first time, it was observed that the
entire process of verification and inspection relating to renewal ought to
be done well in time so that the existing colleges have adequate and
reasonable time to set right the deficiencies or offer explanation to the
deficiencies.
26. In the light of the aforesaid facets namely that the Scheme under
Section 10A may itself contemplate stage wise achievement of annual targets
and the requirements of reasonable opportunity to be afforded not only at
the initial stage but also in cases of subsequent renewal and further that
the opportunity must be afforded at both the stages namely by the MCI as
well as by the Central Government, the Schedule under the Regulations must
accommodate and provide for adequate time limits to take care of such
eventualities. The Schedule which was brought in force by way of an
amendment dated 21.09.2012 unfortunately does not provide for such stage
wise consideration. It simply gives four stages without indicating any
time limits to ensure grant of such reasonable opportunity in case the
decisions of disapproval are taken against the applicants. It also does
not speak of any compliance verification. The pattern that emerges in the
present cases is common and consistent in that the inspections were
undertaken in and around April/May 2014 and the letters of disapproval were
sent by the Central Government on or about 15th July, 2014. Though the
compliance was reported, no verification in that behalf was undertaken.
27. The MCI and the Central Government have been vested with monitoring
powers under Section 10A and the Regulations. It is expected of these
authorities to discharge their functions well within the statutory confines
as well as in conformity with the Schedule to the Regulations. If there is
inaction on their part or non-observance of the time Schedule, it is bound
to have adverse effect on all concerned. The affidavit filed on behalf of
the Union of India shows that though the number of seats had risen,
obviously because of permissions granted for establishment of new colleges,
because of disapproval of renewal cases the resultant effect was net loss
in terms of number of seats available for the academic year. It thus not
only caused loss of opportunity to the students’ community but at the same
time caused loss to the society in terms of less number of doctors being
available. The MCI and the Central Government must therefore show due
diligence right from the day when the applications are received. The
Schedule giving various stages and time limits must accommodate every
possible eventuality and at the same time must comply with the requirements
of observance of natural justice at various levels. In our view the
Schedule must ideally take care of :
(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 fulfill these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfill 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, 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.
28. As against the Schedule brought in by Notification dated 21.09.2012,
the draft Schedules submitted by Mr. Vikas Singh, learned Senior Advocate
appearing for the MCI do make provisions for stage wise consideration and
set time limits therefor. They also provide for hearing by the Central
Government under Section 10A(4) and compliance verification assessment by
the MCI. We accept the submission of Mr. Vikas Singh that the draft
Schedules suggested and placed by the MCI will now take care of all
foreseeable situations and ensure availability of opportunity at all
possible stages. In our view the draft Schedule so submitted by the MCI be
given proper statutory status.
29. The cases in hand show that the Central Government did not choose to
extend the time limits in the Schedule despite being empowered by Note
below the Schedule. Though the Central Government apparently felt
constrained by the directions in Priya Gupta it did exercise that power in
favour of Government Medical Colleges. The decision of this Court in Priya
Gupta undoubtedly directed that Schedule to the Regulations must be
strictly and scrupulously observed. However, subsequent to that decision,
the Regulations stood amended, incorporating a Note empowering the Central
Government to modify the stages and time limits in the Schedule to the
Regulations. The effect of similar such empowerment and consequential
exercise of power as expected from the Central Government has been
considered by this Court in Priyadarshini. The Central Government is thus
statutorily empowered to modify the Schedule in respect of class or
category of applicants, for reasons to be recorded in writing. Because of
subsequent amendment and incorporation of the Note as aforesaid, the matter
is now required to be seen in the light of and in accord with Priyadarshini
where similar Note in pari materia Regulations was considered by this
Court. We therefore hold that the directions in Priya Gupta must now be
understood in the light of such statutory empowerment and we declare that
it is open to the Central Government, in terms of the Note, to extend or
modify the time limits in the Schedule to the Regulations. However the
dead line namely 30th of September for making admissions to the first MBBS
course as laid down by this Court in Madhu Singh and Mridul Dhar must
always be observed.
30. Since the deadline for making admissions was over and there was no
formal permission to establish new Medical Colleges or to increase the
intake capacity in respect of existing Colleges, applicants in Categories
I and II were not considered fit for grant of any interim relief. For the
same reasons no relief can be granted to them. Consequently, the writ
petitions and appeals arising from the special leave petitions in
Categories I and II except one arising out of SLP(C) No.23512 of 2014 are
dismissed. Said appeal from SLP(C) No.23512 of 2014 at the instance of the
MCI is allowed and the order passed by the High Court is set aside. No
orders are required in Transfer Petition No. 1217 of 2014 and it stands
dismissed. The relief granted in respect of those falling in Category III,
vide orders dated 18.09.2014 and 25.09.2014 is made absolute in terms of
those orders and the writ petitions and appeals arising from special leave
petitions in Category III stand disposed of in such terms.
31. The MCI and the Central Government are directed to discharge their
functions in accord with the concerned Regulations and the Statute and in
keeping with the observations made hereinabove.
32. All matters stand disposed of in above terms. No order as to costs.
………………………..J [Anil R. Dave]
…………………………J
[Vikramajit Sen]
…………………………J
[Uday Umesh Lalit]
New Delhi
August 20, 2015
-----------------------
[1] (2005) 2 SCC 65
[2] (2011) 4 SCC 623
[3] (2012) 7 SCC 433
[4] [5] (2002) 7 SCC 258
[6] (2014) 13 SCC 506