Union Of India vs Harish Bhalla And Ors.
2001 Latest Caselaw 1823 Del

JUDGMENT

1. A Medical Council came to be established in India in 1934 under the Indian Medical Council Act, 1933. The main function of the Council was to ensure uniform standards of higher qualifications in medicine and recognition of medical qualifications in India and abroad. After independence of the country in the year 1947, there was an increase in the number of medical colleges and the 1933 Act was found to be inadequate to cope with the changed circumstances. This brought in the Indian Medical Council Act, 1956. The Act strives to achieve the following objectives as per the Bulletin cum Directory 2001 published by the Council:

OBJECTIVES:

1. Maintenance of uniform standards of medical education, both undergraduate and postgraduate.

2. Recommendation for recognition/de-recognition of medical qualifications of medical institutions of India or foreign countries.

3. Permanent registration/provisional registration of doctors with recognised medical qualifications,

4. Reciprocity with foreign countries in the matter of mutual recognition of medical qualifications.

FUNCTIONS:

1. Inspection/visitation with a view to maintain proper standard of medical education in India.

2. Permission to start new medical colleges, new Courses including P.G. or Higher Courses, increase of seats etc.

3. Recognition/de-recognition a) Indian of qualifications.

b) foreign qualifications.

4.       Registration                a) Permanent
                                        registration
 
                                     b) Provisional
                                        registration
 
                                     c) Registration
                                        of Additional
                                        Qualification.
 
                                     d) Issue of Good
                                        Standing
                                        Certificates.
 
 

5. Indian Medical Register: Maintenance of All India Medical Register of persons who hold any of the recognised medical qualification or for the time being registered with any of the State Medical Councils or Medical Council of India.

2. The role of Medical Council of India (hereinafter referred to as the Council) has assumed great importance in course of time. The Medical Council is charged with the responsibility of maintaining high levels of medical education and professional standards by the medical practitioners. The Council not only lays down the academic standards for various medical courses including post graduate and diploma courses but also ensures that proper infrastructure is available in the medical colleges for imparting education and training. The Medical Council enjoys vast powers. For its control over medical colleges it gets the colleges inspected through its own teams of inspectors. The inspection reports can lead to refusal of permission to start medical colleges and withdrawal of recognition to already recognised medical colleges. The Council regulates admissions to medical colleges inasmuch as if colleges are to increase the number of seats, its approval is required.

3. The potential for earnings through the medical profession and the prestige which goes with the profession attracts large number of youngsters towards the profession all over the country. There is a scramble for seats in medical colleges. Some of the medical colleges had been charging fabulous amounts running into lacs of rupees by way of capitation fee for allotting seats to students. This led to a spurt in the number of medical colleges. Medical colleges are seen as money spinning business propositions. This in turn has increased the burden of the Medical Council of India. Its functions like granting permission to run medical college, recognition, withdrawal of recognition and the power to regulate the number of seats in medical colleges have put the Medical Council of India in a very powerful position. This makes it almost imperative that the Medical Council of India should have as its members persons of integrity and high professional standards with values of honesty and probity.

4. The Medical Council Act was brought into force with laudable objectives. The Medical Council was envisaged under the Act as an apex body to control and regulate the medical profession. Whether any legislation is able to achieve its objectives depends on persons who occupy important offices under the respective statutes and whose responsibility it is to implement the statutes. The role of human beings becomes all important. If human beings who are to implement the statutes are unfit for the job, they can subvert the spirit behind the statutory provisions. A beneficial statute can be converted into a tool of oppression by incompetent and/or unscrupulous persons. President of the Medical Council plays a pivotal role. It is he who is really responsible for the entire functioning of the Council. The role of the President of the Medical Council of India in working out the statute is the main issue before us. As per the case of the petitioner in the writ petition, present case is an example of subversion of the Indian Medical Council Act by the present incumbent on the post of President of the Council.

5. A writ petition was filed in this Court (CWP No.7746/2000) challenging the appointment of Dr.Ketan Desai, respondent No.3 as a member of the Medical Council of India and as its President as well as for seeking directions to the Central Government to constitute the Medical Council of India as per the provisions of sections 3 and 5 of the Medical Council Act, 1956. The writ petitioner had also sought restraint order against respondent No.3 from holding office as President of the Medical Council, respondent No.2. By an interim order dated 28th May, 2001, a learned Single Judge of this court had directed that respondent No.3 will not act as President of the Medical Council till fresh elections are conducted in accordance with law. In the writ petition the petitioner had raised various issues including failure of the Central Government to constitute the Medical Council of India in accordance with section 3 of the Act. An issue had also been raised about the eligibility of Dr.Ketan Desai, respondent No.3 herein to seek election as President of the Medical Council and to hold office as such. Thirdly allegations have been made of misuse of office by Dr.Ketan Desai by indulging in corrupt practices which disentitle him to continue to hold office of the President of the Council. The learned Single Judge passed the impugned order mainly on the ground of ineligibility of Dr.Ketan Desai to hold office of President of the Council in view of his term as a nominated member of the Council under section 3(1)(e) of the Act having come to an end and his subsequent membership came from a different source. Two appeals have been filed against the order of the learned Single Judge - one by Union of India and the other by Dr.Ketan Desai. By an order passed on 4th June, 2001, a Division Bench of this court stayed the operation of the order of the learned Single Judge while permitting election to the office of President and Vice President to be held as scheduled. Against the order of the Division Bench, Dr.Harish Bhalla, petitioner in the original writ petition, approached the Supreme Court. On 18th June, 2001 the Supreme Court passed an order substantially maintaining the order of the Division Bench of this court. An observer was appointed for purposes of ensuring that election to the office of the President and Vice President of the Council is held in accordance with the Act. Further the High Court was directed to decide the appeal expeditiously. The relevant part of the Supreme Court order is reproduced as under:

"(4) During the course of the hearing, learned counsel for the appellant submitted that in view of there being 56 vacancies and, therefore, the constitution of the Electoral College being defective (which is disputed by learned counsel for the respondents), it would not be fair to hold elections on June 21, 2001. That contention has not been raised before, much less determined by, either the learned Single Judge or the Division Bench. We leave that question to be raised and agitated before the Division Bench seized of the hearing and express no opinion thereon."

6. The appeals were listed before this court on 9th July, 2001. During the course of hearing, keeping in view the above observations of the Supreme Court the parties' counsel agreed that all the points having bearing on the election of Dr.Ketan Desai as President of the Medical Council of India be permitted to be raised in the appeals. Accordingly an order was passed on 10th July, 2001 permitting the respondent (petitioner in the writ petition) to file an additional affidavit in which he was permitted to raise whatever pleas he wanted to agitate in support of his case in view of the Supreme Court order and the consent of counsel for parties. The appellants were given opportunity to file affidavits in response to the additional affidavit of the writ petitioner. The final hearings in the appeals commenced after all the parties filed their respective affidavits, counter affidavits and rejoinders.

7. Following issues arise for consideration:

(1) Constitution of the Medical Council of India;

(2) Eligibility of Dr.Ketan Desai, respondent No.3 to hold office of the President of the Medical Council of India;

(3) Misuse of office of President of the Council by Dr.Ketan Desai by indulging in corrupt practices which disentitles him to hold office of President.

8. The challenge regarding constitution of the Medical Council of India is primarily based on section 3 of the Act which casts a duty on the Central Government to constitute the Council.

9. Section 3 of the Medical Council Act casts a duty on the Central Government to constitute a Council consisting of following categories of members:

"3. Constitution and composition of the Council.-

(1) The Central Government shall cause to be constituted a Council consisting of the following members, namely:--

(a) one member from each State other than a Union territory, to be nominated by the Central Government in consultation with the State Government concerned;

(b) one member from each University, to be elected from amongst the members of the medical faculty of the University by members of the Senate of the University or in case the University has no Senate by members of the court;

(c) one member from each State in which a State Medical Register is maintained, to be elected from amongst themselves by persons enrolled on such Register who possess the medical qualifications included in the First or Second Schedule or in Part II of the Third Schedule;

(d) seven members to be elected from amongst themselves by persons enrolled on any of the State Medical Registers who possess the medical qualifications included in Part I of the Third Schedule;

(e) eight members to be nominated by the Central Government.

(2) The President and Vice-President of the Council shall be elected by the members of the Council from amongst themselves.

(3) No act done by the Council shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Council."

10. A reference to section 3 shows that members of the Council are drawn from five sources. Under sub-clause (a) one member is to be nominated by the Central Government from each State in consultation with the State Governments. The other category of nominated members is provided in sub-clause (e) according to which eight members are to be nominated by the Central Government. This accounts for approximately 35 nominated members. The third category of members of the Council consists of persons drawn from medical faculties of the various universities, to be elected by members of the Senate of the respective university. Where a university does not have a Senate the person is to be elected by members of the University Court. Fourth category consists of one member from each State in which State Medical Register is maintained to be elected from amongst themselves by persons enrolled on such Register who possess medical qualifications included in the First or Second Schedule or in Part II of the Third Schedule. Fifth category of members of the Council is drawn from persons enrolled on State Medical Register who possess medical qualifications included in Part I of the Third Schedule. The number of such members has been provided as seven. The last three categories together account for about 78 members as at present. Thus the Act has tried to give a representative character to the Medical Council of India. The members are drawn from various constituents which form the medical profession. The intention behind making the Council a wide body is that the various constituents of the medical profession get representation in the Council. This is further to ensure that all sections have a say in the highest body which is supposed to regulate the medical profession in the country. The statute has endeavored to ensure representative character of the Council.

11. Presently the Council which is supposed to have about 123 members actually has 77 members. There are vacancies in various categories. The largest number of vacancies are in the elective or representative category under clauses (b) to (d) of section 3. By providing for constitution of the Council on the basis of various categories, the Act has ensured a representative character for the Council. As against 35 nominated members, there have to be 88 elected members. The ratio between elected and nominated members is that elected members are more than double as compared to nominated members. The present strength of the Council shows that the number of nominated members and elected members is almost same. Since the duty is cast on the Central Government to constitute the Council under section 3 of the Act, the Central Government has clearly failed to perform its duty and it is on account of this failure that the Council has lost its representative character. It is obvious from the record that the Central Government has not at all made bona fide efforts and not adopted effective measures to ensure that elected members are in place. It has miserably failed in discharging the statutory duty cast on it by the Section 3 of the Act. The Council has majority of nominated members owing allegiance to those who nominate them. The fact that respondent No.3 won the election as President with such an overwhelming majority proves that the control of the Council is being manoeuvred by such tactics. A body supposed to be controlled by elected members is being controlled through nominations. The spirit of the statute is being subverted.

12. The members of the Council are required to elect a President and a Vice President from amongst themselves as per section 3(2) of the Act. Section 6 provides that the Council shall be a body corporate by the name of Medical Council of India having perpetual succession and a common seal. The Council as a body has to meet at least once in each year in view of section 8 of the Act. The Council is required to constitute from amongst its members an Executive Committee and such other committees for general or special purposes as the Council deems necessary to carry out the purposes of the Act. The Council is also empowered to fix the remuneration and allowances of the President and Vice President and members of the Council and to determine the conditions of the employees of the Council with previous sanction of the Central Government as per section 9 of the Act. The President and Vice President of the Council are ex officio members of the Executive Committee. In addition the Executive Committee is to have not less than 7 and not more than 10 members to be elected by the Council from amongst members of the Council as per section 10 of the Act.

13. It was also argued that Rule 3 of the Indian Medical Council Rules, 1957 requires the President of the Council to initiate steps for filling up vacancies arising under clause (b) of section 3(1) of the Act. Section 3(1)(b) consists of members drawn from the medical faculties of the various universities. The President of the Council has to initiate steps not later than ninety days before the date of occurrence of vacancy by the expiry of the term of office of a Member. The President has to send intimation to the Central Government which in turn has to send notice to the Registrar of the University concerned requesting him to hold election by a specified date. The petitioner has alleged mala fides against the President as well as the Central Government in not ensuring that all the elected seats in the Council are filled in time. It is contended that respondent No.3, Dr.Ketan Desai, President of the Council has connived with concerned officers of the Central Government in this behalf to ensure that full strength of Council is not in place so that his hold over the Council as presently constituted continues. Our attention was also drawn to a Division Bench judgment of this court dated 21st November, 1990 in CWP No.1003/1990 entitled Dr.Harcharan Singh and Others v. Medical Council of India and Others. The court noted the important role assigned to the Medical Council of India under the Act. The said writ petition filed in this court had challenged the election of the then President, Vice President and Members of the Executive Committee of the Council held on 6th February, 1990. The main ground of challenge was based on improper constitution of the Medical Council and failure of the Central Government to constitute the Medical Council under section 3 of the Act. It was noted by this court that on the date of election, only 78 members were present who participated in the election. The total strength of the Medical Council at that time was 120. It was further noted that out of the 78 members, about 25 members were no longer qualified to participate in the election. This court set aside the elections and ordered fresh elections. Directions were issued for updating the electoral roll immediately.

14. It was also argued that some of the members of the Council at present are not entitled to or eligible to continue as members. They have ceased to have the eligibility condition for the respective categories from which they became members of the Council. This was an additional ground to challenge the constitution of Medical Council by the petitioner.

15. In reply to the aforesaid contentions raised on behalf of the petitioner, the learned counsel for the Union of India could not dispute the fact that the Council has not been constituted as per requirements of the statute. He only expressed helplessness of the Central Government in ensuring that statutory requirements are met. The submission is that the respective universities are not taking steps to fill the vacancies under section 3(1)(b) inspite of the Central Government writing to them in this behalf. About category of members envisaged under section 3(1)(d) it was submitted that this class was getting extinct. The category consists of Registered Medical practitioners who did not possess the required medical qualifications but were allowed to practice as medical practitioners as per past practice. About certain persons being allowed to continue as members even though they have ceased to be members, it was submitted that there are only a few instances of this type and these persons are functioning because they have obtained stay orders from courts and the Council is not in a position to remove them from membership in view of the stay orders.

16. It follows from the above that the Medical Council presently is not constituted as required under section 3 of the Indian Medical Council Act. Since the said provision casts a duty on the Central Government to constitute a Medical Council it is the Central Government which has to take the blame for failing to constitute the Council as per the statutory provisions. The Council has today been reduced to almost 2/3rd of its strength. It has lost its representative character. The number of government nominated members is more than the number of elected members whereas as per the statutory intention, the number of elected members is to be more than double the number of nominated members. If certain members who are no longer entitled to continue as members are continuing on the strength of stay orders obtained by them from courts, it is the duty of the Medical Council to contest such stay orders and try to ensure that the stay orders are vacated. It appears that the Council has adopted a lackadaisical approach in this behalf and has allowed the state of affairs to continue. The Central Government has to take appropriate effective steps to constitute the Medical Council as required under the statute.

17. The next point raised in the writ petition is regarding eligibility of Dr.Ketan Desai, respondent No.3 to contest election to the post of President. To appreciate this point certain facts are necessary. Respondent No.3 claims to be a nominated member of the Council. The category of his nomination is as per section 3(1)(e) of the Act. In this category it appears that the Central Government has been nominating members from time to time as and when vacancies occur. The Council is a perpetual body as is clear from section 6 of the Act. It is claimed that on 20th February, 1996 the respondent No.3 was nominated against a particular vacancy. The term of the member against whose vacancy respondent No.3 was nominated was due to expire on 20th February, 2000, therefore, the nomination of respondent No.3 was only for the remainder period of four years which was due to expire on 19th February, 2000. Respondent No.3 was also elected as a member under section 3(1)(b) of the Act as a representative of the Medical Faculty of the Gujarat University on 29th March, 1999. A notification in this behalf was issued on 9th September, 1999 which was published on 25th September, 1999. The Central Government again nominated respondent No.3 under section 3(1)(e) of the Act as a member of the Council on 1st February, 2000. The date was subsequently modified to read as effective from 14th February, 2000. It was argued on behalf of the petitioner that nomination of respondent No.3 in the category under section 3(1)(e) of the Act came to an end on 19th February, 2000 and, therefore, he ceased to be President of the Council on the said date. His change of category as a member representative of the Gujarat University under section 3(1)(b) could not ensure for purposes of his continuing as President because a member cannot change horses in mid-stream. In support of this argument section 5(2) of the Act was pressed into service. According to the said provision no person can serve as member in more than one capacity at the same time. It was contended that on the date of notification under section 3(1)(b) of the Act membership of respondent No.3 under category provided by section 3(1)(e) was still subsisting. Therefore, respondent No.3 could not continue as member under two categories. In this connection the stand of the appellant in this appeal as well as the supporting respondents in the appeal is that change of route should not matter so long as a person continues to be a member of the Council. Secondly it was submitted that the Central Government had again nominated respondent No.3 under section 3(1)(e) on 1st February, 2000 for five years and the nomination became effective from 14th February, 2000. Therefore, as a matter of fact it is not a case of change of route. So far as the membership of respondent No.3 under category as per section 3(1)(b) is concerned, it was submitted that respondent No.3 did not accept that membership and in fact the Medical Council wrote to the Gujarat University to this effect vide letter dated 28th February, 2000. In the context of this controversy in our view section 7 of the Act holds the key. The relevant provisions are as under:

"7. Term of office of President, Vice-President and members.-- (1) The President or Vice-President of the Council shall hold office for a term not exceeding five years and not extending beyond the expiry of his term as member of the Council.

(2) Subject to the provisions of this section, a member shall hold office for a term of five years from the date of his nomination or election or until his successor shall have duly nominated or elected, whichever is longer.

(3) xxxx xxxx xxxx xxxx

(4) xxxx xxxx xxxx xxxx

(5) xxxx xxxx xxxx xxxx

(6) xxxx xxxx xxxx xxxx"

18. Thus what is important is that for seeking election as President or Vice President of the Council the person concerned should be a member of the Council and the term as President/Vice President shall come to an end if the term as member of the Council comes to an end even though election as President/Vice President is envisaged for a term of five years. This means that if a person ceases to be a member of the Council even though his term as President/Vice President remains, he has to demit office on the expiry of the term as member of the Council. What is important is that a person should be a member of the Council and he should continue to be a member of the Council to enable him to hold office as President or Vice President of the Council. Section 5(2) only contains a bar that a person cannot serve as a member at the same time in more than one capacity. There is no bar in the statute about change of the eligibility route for seeking election or continuing as President/Vice President of the Council. Essential requirement is that a person should be a member of the Council to enable him/her to hold office of President or Vice-President, source of membership is not relevant. To this extent we are unable to agree with the observations of the learned Single Judge to the contrary contained in the order under appeal.

19. In any case this aspect has become irrelevant at present in view of fresh nomination of respondent No.3 as member of the Council by the Central Government on 1st February, 2000 effective from 14th February, 2000 for a period of five years. His membership in the same category was surviving till 13/19th February, 2000. Therefore, continuity in the same category has been maintained in view of the fresh nomination. This resulted in respondent No.3 enjoying eligibility for seeking election as President of the Council when the elections were held on 21st June, 2001.

20. This brings us to the role of Dr.Ketan Desai, respondent No.3 as President of the Council and the allegations of misuse by him of his position as President. It has been alleged that respondent No.3 enjoys a special clout with the concerned government officials which ensures his nomination as a member of the Council term after term under section 3(1)(e) of the Act. Inspite of availability of eminent members from prestigious institutions like the All India Institute of Medical Sciences, New Delhi and the Post-graduate Institute, Chandigarh, respondent No.3 who comes from a Government medical college in Ahmedabad, Gujarat, is being repeatedly nominated by the Central Government. It is also alleged against respondent No.3 that he is virtually controlling the Medical Council of India and has managed to get a complete hold over the Council. The affairs of the Council are being manipulated in a manner that all major decisions are taken by him even though the decisions are required to be taken by the Executive Committee. All major decisions regarding grant of affiliation to new medical colleges, recognition or withdrawal of recognition to medical colleges, regulation of number of seats in medical colleges, appointment of examiners for conducting examinations, appointment of teams of inspectors etc. are being kept by respondent No.3 within his control. He is said to be minting money running into crores of rupees by manipulating decisions on all such important issues.

21. Under section 10A of the Act, permission of the Central Government is required for establishment of a new medical college or for starting of a new course of study in a medical college. Similarly Central Government permission is also required under the said section for increase of admission capacity in any course of study or training. For purposes of obtaining such permission, the medical college has to submit to the Central Government a scheme as stated in the said section. The scheme in turn is referred by the Central Government to the Council for its recommendations. On receipt of the scheme by the Council, the Council examines the scheme; it can call for further information from the concerned college. The Medical Council after examining the scheme sends it back to the Central Government along with its recommendations where after it is for the Central Government to approve or disapprove the scheme. Under section 16 of the Act every university or recognised medical institution in India has to furnish such information as the Council may require as to the courses of study and examinations to be undergone in order to obtain such qualifications. The Medical Council sends its team of inspectors to gather first hand information before making its recommendations. The inspectors who are appointed are generally retired teachers from medical colleges. The choice of inspectors is very significant and goes a long way in influencing the final decision/recommendation of the Council. The report of inspectors forms basis for such decisions.

22. MCI inspections for recommendations to the Central Government:

(1) To give permission for opening of the medical college. LETTER OF INTENT (LOI)

(2) To give permission for starting admissions. LETTER OF PERMISSION (LOP)

(3) To give yearly renewal permission for admitting fresh batch of students to MBBS course for consecutive 5 years.

(4) To recognize the MBBS degree to be awarded to the first batch of above admitted students after their final year i.e. 5th year examination.

(5) To re-inspect whether deficiencies pointed out during early inspection which resulted in refusal of recommendation of permission or recognition are rectified for Compliance verification report in case the college claims removal of deficiencies.

(6) Every year to check new admissions to MBBS, whether within sanctioned capacity and whether sanctioned percentage under different categories as per Supreme Court guidelines e.g. 15% NRI quota are being maintained.

(7) Whether the clinical data as presented by the college and hospital is genuine or signed by college- hospital authorities under compulsion - dictates of their employer i.e., management.

23. The petitioner has alleged in the writ petition that the inspection reports are normally manipulated as per the dictates of the President of the Council. The inspectors can highlight deficiencies in a college or they can underplay them as per instructions of the President. To illustrate this, reference was made to inspection reports regarding a medical college in Ghaziabad. It is stated that the distance between the college and the hospital supposed to be attached with the college has been contracting/expanding with different inspection reports from 9 kms. to 7 kms. to 4 kms. Copies of inspection reports with respect to this college for the past a few years were annexed to the affidavit to prove this assertion.

24. The inspectors who are retired teachers are appointed by the President of the Council. The inspectors are, therefore, obliged to the President for their job. In a given case if the inspection report is adverse to the college concerned, the college seeks re-inspection after allegedly removing the objections. Re-inspection thus becomes very important. It all depends on the inspectors as to what report they give because there is no other independent check. The inspectors can ill-afford not to follow instructions of the MCI President for fear of losing their job. Based on inspection reports two concrete examples have been quoted in the additional affidavit dated 17th July, 2001 filed by the writ petitioner.

"1.Pimpri, Pune D.Y. Patil College had bed occupancy of 3% in June 2000 when permission for admitting another batch of medical students was given, violating all the regulations regarding minimum standards as required by a medical college which is 80% bed occupancy of the required bed strength. Surprisingly in 6 months time the bed occupancy increased to 96%, this bed occupancy shown falsely increased with admitted fake patients not for teaching purposes. Despite this the college had been recommended permission and now recognition given to MBBS degree after reinspection in April 2001.

2. Santosh Medical College, Ghaziabad was refused recommendation of permission and recognition of its MBBS degree in Oct 2000 for want of adequate clinical material, infrastructure and teaching staff and the inspecting team commented that there were fake patients, fake teachers and fake instruments. Then the same college was found deficient in Jan 2001 and similar refusal continued but in April 2001 suddenly every thing became excellent and up to the mark and the recommendation for permission for admission of new batch of students and recognition of MBBS degree was given."

25. These examples were supported by copies of inspectors' reports.

26. The petitioner has alleged large scale bungling in the matter of admissions to medical colleges. The Medical Council framed certain regulations in the year 1997 called the Medical Council of India (Criteria for identification of students admitted in excess of admission capacity of medical colleges) Regulations. Regulations 8 and 9 deal with excess admissions and provide that all matters relating to excess admission of students shall be decided by the Council taking into account the list furnished to the Council by a competent authority and the admission capacity fixed for the medical college. The Council has to ensure that the colleges admit students according to their sanctioned capacity. The most lucrative and money spinning segment relating to admissions is the 15% NRI quota. If this NRI quota remains unfilled, the management can fill it on its own. It is alleged that in practice the admission quotas are not checked annually and the colleges, therefore, continue to have excess admissions. The excess admissions are normally for extraneous considerations. Lot of money is involved - each seat means 20 to 25 lacs of rupees. The petitioner has given concrete example of 40 excess admissions in Santosh Medical College, Ghaziabad within a span of four years and 78 admissions in Shere-e-Kashmir Institute within the same span. The 15% NRI quota is often not adhered to. It is stated that in the Santosh Medical College, Ghaziabad, 127 NRI/management admissions took place instead of specified quota of 37. Out of excess 90 admissions, 50 NRI admissions were within sanctioned intake capacity and 40 excess NRI admissions were beyond intake capacity. Similar figures are given regarding Kasturba Medical College, Manipal. It is further stated that there are about 18,000 admissions in MBBS course every year in the 179 medical colleges all over the country. Out of this, 62 are private medical colleges having about 8,000 admissions every year. The 15% NRI quota comes to about 1,200 students who are admitted without pre-medical entrance test. This quota is never adhered to and instead of 1,200, the figures of actual admissions under this quota are more than double. The seats are allotted on payment of huge amount running into several lacs and the total money thus collected runs into crores of rupees. The Medical Council has done precious little to control this. The reason for the Council overlooking this is said to be sharing of the booty. Though the Medical Council has denied all this, yet a bare denial is not enough. We are prepared to assume that the figures given by the petitioner may not be wholly accurate, yet they are sufficient to show that the Council under the control of respondent No.3 has totally failed to perform its statutory duties. Respondent No.3 being head of the institution and being in full control of Council's affairs is singularly responsible for all that is wrong with the Council.

27. The averments regarding deficiencies found for purposes of grant of recognition in the Dr.D.Y.Patil Medical College for Women, Pimpri and the Santosh Medical College, Ghaziabad have been admitted. However, it is stated that these colleges were recommended for recognition only after the deficiencies were found to have been removed in fresh inspections. Similarly general statements have been made in the counter affidavit filed on behalf of the Medical Council in reply to the affidavit filed by writ petitioner in pursuance of order dated 10th July, 2001 passed in the appeal. One of such general statements in the MCI affidavit is - "It is submitted that it was only because of the efforts of MCI, the private medical colleges were stopped from admitting students over and above the annual intake capacity fixed by the Council". The 40 excess admissions in Santosh Medical College, Ghaziabad have been admitted. It is also admitted that they have been regularised subject to certain conditions imposed by the Central Government. Excess admissions by Shere-e-Kashmir Institute is also not disputed but it is stated that action is being taken under section 10(b) of the Act. Excess admissions in the Manipal Colleges are also not disputed. It is only stated that - "Council is taking the necessary steps".

28. The pleadings on the aspect of recognition granted to medical colleges and excess admissions in medical colleges show that the fact that there are excess admissions as compared to the specific intake capacity of the colleges is not disputed. Similarly the inspections and re-inspections of medical colleges for purposes of recognition is not disputed. Such admissions on the part of respondent/MCI coupled with well known fact about lacs of rupees being charged for admission to medical colleges with respect to NRI/management quota seats proves that persons in control are making lot of illegal monetary gains.

29. In the additional affidavit filed by respondent No.1 in the appeal i.e., writ petitioner, the corruption allegedly indulged in by Dr.Ketan Desai, respondent No.3 has been highlighted by showing receipt of illegal donations by him. It has been pointed out that there was an Income-tax raid conducted at the business and residential premises of Dr.Ketan Desai on 18th and 20th February, 2000. The petitioner has placed on record specific information regarding the bank drafts of the total value of Rs.65 lacs received by Dr.Ketan Desai and members of his family. The following chart gives complete details about these bank drafts:

___________________________________________________________

S. Name & Address of Name & Address of Cheque Amount No.the Donor the Donee No./DD (Rs.) No.

___________________________________________________________

1. Dr.Nalin Sachdev Dr.Alka Desai 91928 25,00,000.00 R/o 7/38 C/o Ketan D.Desai 26-2-99 Ansari Road, 4-A Vasishtha, Darya Ganj, Nehru Nagar, New Delhi. Ahmedabad ___________________________________________________________

2. Dr.Sanjeev Sachdev Dr.Ketan Desai 400169 25,00,000.00 R/o 7/38 C/o Ketan D.Desai 26-2-99 Ansari Road, 4-A Vasishtha, Darya Ganj, Nehru Nagar, New Delhi. Ahmedabad ___________________________________________________________

3. Ashok Kumar Dr.Erika Desai 104695 3,75,000.00 Windlass C/o Ketan D.Desai 27-10-98 R/o Y-8-A, 4-A Vasishtha, Hauz Khas, Nehru Nagar, New Delhi. Ahmedabad ___________________________________________________________

4. Ved Prakash Dr.Anuja Desai 104694 3,75,000.00 Windlass C/o Ketan D.Desai 27-10-98 R/o Y-73, 4-A Vasishtha, Hauz Khas, Nehru Nagar, New Delhi. Ahmedabad ___________________________________________________________

5. Rajiv Goel Dr.Adit Desai 104693 3,75,000.00 Windlass C/o Ketan D.Desai 27-10-98 R/o Y-73, 4-A Vasishtha, Hauz Khas, Nehru Nagar New Delhi.

___________________________________________________________

6. Sudhir Kumar Dr.Ketan Desai & 104692 3,75,000.00 Windlass Sons (HUD) 27-10-98 R/o Y-73, C/o Dr.Ketan D.Desai Hauz Khas, 4-A Vasishtha, New Delhi. Nehru Nagar, Ahmedabad ___________________________________________________________

30. It will be seen from the above chart that the money was received by way of bank drafts by Dr.Ketan Desai, his wife Dr.Alka Desai and their children. All the bank drafts were got prepared from the Bombay Mercantile Co-operative Bank Limited, Daryaganj, New Delhi on two different dates by two groups of parties of New Delhi on 27th October, 1998 and 26th February, 1999. In the additional affidavit, reference has been made to a letter dated 2nd August, 2000 from Shri M.S.Chandersekharan, Joint Director, Income-tax (Investigation), Income-tax Department, Ahmedabad addressed to Shri Bhaskar Reddy, Joint Director, Income-tax (Investigation), New Delhi for further inquiry into this matter. Copies of the letters of Sh.Chandersekharan addressed to Sh.Reddy and the response of Sh.Reddy to Sh.Chandersekharan vide his letter dated 12th December, 2000 have been placed on record. Sh.Chandersekharan suggested in his letter dated 2nd August, 2000 that prima facie it appeared that these were arranged gifts and, therefore, necessary inquiry was required. Sh.Reddy's letter in response is quite detailed and concludes - "evidence brought out in the statements of various persons as stated above revealed that the gift entries are not in lieu of loan and records.... as claimed in the gift deeds. The cash deposits in the banks from which the alleged gifts cheques were issued/cleared in both the cases near the dates of gifts point to the fact that these alleged gifts are make-believe-arrangements and not genuine gifts. These are accommodation transactions in the form of gifts and the alleged donors merely acted as conduits to channelise the unaccounted money of Dr.Ketan Desai into his and his family members' bank accounts".

31. In reply to these averments first an objection was raised to the effect that President alone cannot do anything. All important decisions are taken by the Council through the Executive Committee and President alone is nothing. Our attention was drawn to several statutory provisions to show that the Council acts through the Executive Committee of which President is only one of the members. The decisions are that of the Committee and not of the President alone. On the face of it this argument appears to be attractive and in normal course should have been accepted. However, in order to test the submission, the court directed the counsel for the MCI to place before the court minutes of the Executive Committee of the Council for the previous three years. This order was complied with. We have perused the minutes of the Executive Committee meetings of the Council for the years 1998, 1999 and 2000. We find that the minutes of most of the meetings are replete with resolutions leaving the matters relating to recognition of colleges or inspection of colleges and admissions to medical colleges to the absolute discretion of the President of the Council. Further the minutes show that in most of the Executive Committee meetings items ranging from 40 to 50 cases are dealt with within a short span of time which also goes to show that the meetings are a farce. They are mere formalities and most matters are entrusted or left in the hands of the President of the Council. These minutes of the Executive Committee meetings are a big pointer to the fact that the entire affairs of the Council are being controlled and managed by its President. The President/respondent No.3 has managed and manipulated the affairs of the Council in a manner that he exercises complete control regarding affairs of the Council. This is obvious from the fact that in the election to the office of the President and Vice President held on 21st June, 2001, respondent No.3 got 69 out of 73 votes. This is how he exercises complete control over the Council. The Executive Committee is being used to legitimise his activities by the President.

32. We are sorry to observe that by raising an argument that the Council functions through its Executive Committee and President alone is nothing in view of the relevant provisions of the Act, an attempt was made to mislead the court because the real picture which emerges from minutes of the Executive Committee is to the contrary. Through his manipulations, respondent No.3 has reduced the Medical Council to a farce. Serious issues requiring indepth consideration about recognition to be given to the medical colleges throughout the country are listed in the agenda of the Executive Committee meetings and are disposed of by one line resolutions leaving the matter to the President. It was argued that the Medical Council only makes recommendations to the Central Government and the final say in the matter is that of the Central Government. Not a single instance was pointed out where the Central Government did not agree or differed with the recommendations of the Medical Council. This lends credence to the allegation of the petitioner that through his money power respondent No.3 is manipulating things at every stage.

33. Coming to the income-tax raid at the residential and business premises of Dr.Ketan Desai, respondent No.3, an affidavit has been filed by Dr.Ketan Desai in which the fact of the raid on 18th July, 2000 is not disputed. Respondent No.3 has only this to say in this regard - "The deponent is working as a professor and head of the department in the B.J. Medical College at Ahmedabad. His wife is running a nursing home at Ahmedabad. His family has good business in Bombay and Ahmedabad. It is submitted that an income-tax search was carried out at the premises of deponent on 18th July, 2000. It is absolutely false allegation that cash in crores was seized by the tax authorities. It is submitted that it was only an amount of Rs.50,000/- in all from all the family members of the deponent which was taken in possession by the tax authorities. After thorough scrutiny and verification, the tax authorities had passed an assessment order clearly coming to the conclusion that the total undisclosed income of the deponent is determined as nil."

34. There is total silence about the receipt of monies through bank drafts totalling Rs.65 lacs referred to in the table above. Reliance has been placed on an income-tax assessment order showing undisclosed income as nil. The income-tax assessment order was produced for our perusal. It is a cryptic four line order which does not even mention or deal with the receipt of above mentioned amounts by Dr.Ketan Desai and his family. To say the least the order does not inspire any credibility or confidence in the nature of allegations before this court. The writ petitioner has discharged a heavy burden in this case by putting in black and white in a tabulated form the monies received by respondent No.3 and also placing the letters of the Joint Director (Investigation), Income-tax Department on record. On the other hand Dr.Ketan Desai has failed to even provide copies of income-tax returns of his alleged business or his own income-tax return or his wife's income-tax return. He has concealed all this information from this court. A truthful person should have come out with full facts. There is not even a word in the entire counter affidavit to the writ petition or the reply to the appeals and reply to the additional affidavit of the writ petitioner about how and why the amount of Rs.65 lacs was received by Dr.Ketan Desai and his family members two of whom are his minor children and the third is his wife. Dr.Ketan Desai himself claims to be a professor in a government medical college in Ahmedabad, Gujarat. As such he is not supposed to have any private practice nor he is supposed to be indulging in any business. In any case full facts should have been disclosed. Least Dr.Ketan Desai could do was to file copies of his relevant income-tax returns. This aspect of the case Dr.Desai has tried to keep in complete shroud. It appears that Dr.Desai has intentionally maintained silence because disclosure of such material could lead him into further trouble. It is strange that parties from Delhi including two doctors were sending money by way of demand drafts obtained from the same bank in Delhi totalling Rs.65 lacs, the drafts being made out in the name of Dr.Ketan Desai and his family members. Complete silence of Dr.Ketan Desai on this aspect and failure to rebut inspite of opportunity, leads to only one inference and that is admission on the part of Dr.Ketan Desai about having received these huge amounts. Once receipt of these amounts by Dr.Desai is established, it was for him to explain why or in what account he received this money. He has said nothing. Necessary inference has to be drawn. This court cannot ignore receipt of these huge amounts simply on the basis of a cryptic four line income-tax assessment order which as already observed inspires no credibility or confidence.

35. The receipt of these huge amounts of money by Dr.Ketan Desai and the observations of the Joint Director (Investigation), Income-tax department to the effect that the alleged gifts are make-believe- arrangements and not genuine gifts establish as correct the allegation of the writ petitioner that Dr.Ketan Desai, respondent No.3 is misusing his office as President of the Medical Council and is minting money. Such a person does not deserve to occupy the high public office of President of Medical Council of India. In the opening part of this judgment we have highlighted the importance of the role of the Medical Council of India. The Council has to ensure that proper standards are maintained in medical education in this country. If the medical education is on sale by such corrupt practices as are imputed to respondent No.3 what will happen to the medical profession and what type of medical aid will the citizens of this country get? It is an office of great faith and trust for protection of citizens of the country. The intention of the statute embodies the aspirations of the citizens of the country for quality medical education and services. If those who are entrusted with the task of ensuring proper medical education and medical services in the country are to act in such dishonest manner, it is complete betrayal of the trust reposed. The statute i.e., the Medical Council of India Act was enacted with noble intentions little Realizing that a person like respondent No.3 will use the office of President for subverting the statute and its objectives for personal monetary gains.

36. The learned counsel for respondent No.3 contended that allegations of mala fide are easy to make but difficult to substantiate. Allegations of mala fide are to be supported by particulars. Vague and bald allegations of mala fide are not to be entertained. In the present case we are called upon to examine the allegations of corruption levelled against respondent No.3. Corruption is alleged in grant of recognition and withdrawal of recognition to medical colleges. Corruption is alleged in permitting filling of extra payment seats by the medical colleges. Both aspects require Medical Council of India's nod and it is alleged that rather than checking undeserving cases of recognition to medical colleges and increase in quota of admissions, it is being encouraged. Respondent No.3 has manipulated the Medical Council of India affairs in a manner that he is having a complete hold over all such powers. Minutes of the Executive Committee meetings show that the Executive Committee which is supposed to exercise such powers on behalf of the Medical Council of India, leaves all the decisions totally to the President who in turn is using his position to make illegal monetary gains out of this. The role of the Central Government in this connection has been rendered illusory. Not a single case has been cited where the Government differed with the Medical Council of India recommendation.

37. On question of burden of proof or particulars for substantiating allegations of mala fide/corruption, in our view in this case the petitioner has given sufficient proof by giving details of concrete cases of illegal payments received by respondent No.3 and his family. The petitioner has given instances of how some medical institutions lacking in requisite facilities were granted recognition through make-belief-inspections. Copies of inspection reports have been filed. They have not been disputed by the opposite party. Petitioner has given proof of illegal payments received by respondent No.3. Respondent No.3 has not denied receipt of the bank Demand Drafts totalling Rs.65 lacs in his name and in the name of his family members. He has not denied receipt of these payments when he had full opportunity to do so. He has not made any attempt to justify or legitimise these payments. He does not give any explanation whatsoever as to on what account he received these payments. He has maintained complete silence on this aspect. Respondent No.3 is a Professor in a government college in Ahmedabad. He is based in Ahmedabad. His wife is said to be running a nursing home in Ahmedabad. We take it that they must be assessed to income tax. Copies of income-tax returns of either of the two have not been filed. Their children, as admitted by counsel during hearing, are minor. What for all of them were receiving such huge amounts from Delhi? Can the petitioner be expected to give further or better proof of minting money by respondent No.3? He does not disclose the source of his making this money if it was his bona fide income. Investigation as per letter of the Joint Commissioner of Income-tax shows that these were slush money payments/generated gifts. The allegations of petitioner against respondent No.3 regarding minting money stands established. With this it stands established that Dr.Ketan Desai, respondent No.3 has misused his position as President of the Medical Council of India. He is using the office for making illegal monetary gains for himself and his family members. Prima facie a case for prosecution of Dr.Ketan Desai on charges of corruption under the Prevention of Corruption Act is clearly made out.

38. Unfortunately institutions meant to improve professional standards are passing into hands of unscrupulous persons. A stage has come when on account of politicking and manipulative tactics of such persons in institutions meant to maintain professional standards, no good or eminent person with stature wants to serve such institutions. This results in institutions being controlled by undeserving persons. Question before us now is that should we overlook what is happening in the Medical Council of India and allow things to continue as it is even when we are convinced that respondent No.3 who is at the helm of affairs in the Medical Council of India is indulging in large scale corruption and misusing his office for making illegal monetary gains? In our view the court cannot be a mute spectator in such a situation. We cannot allow an unscrupulous and corrupt person to function as President of the Medical Council of India. We are conscious of the fact that the Medical Council of India Act does not contain any provision for disqualifying a person from holding office in the Medical Council of India. But there is no bar either in the Act against removal of an elected office bearer before expiry of his term. Therefore we direct that Dr.Ketan Desai, respondent No.3 shall cease to hold office of President of the Medical Council of India with immediate effect.

39. Mr.V.P.Singh, the learned counsel for Dr.Ketan Desai argued that this court should not interfere in such matters. This task should be left to the Executive according to Mr.Singh. This means that even if we find that the incumbent is misusing the office as President of the Medical Council of India by indulging in corrupt practices, we should ignore it and let him continue to mint money illegally and let the Council not perform its statutory functions in the process. As noted earlier here is a case where concrete and unrebutted evidence of making money by indulging in corrupt practices by respondent No.3 has come on record. Normally a petitioner is not able to lay hands on such concrete evidence. Inspite of proven corrupt practices of respondent No.3, should he be allowed to continue to function? In our view the present is the fittest case in which the least that should be done is to order removal of respondent No.3 from the office of President of the Medical Council of India. Respondent No.3 is not exercising power as President of the Medical Council of India as per mandate of the Legislature. Rather he is acting contrary to the statutory mandate. He is betraying the trust reposed in him by electing him as President of the Council. The legislature while enacting the Medical Council of India Act had very laudable objects in view. But the Council in the hands of respondent No.3 is being used to defeat the statutory objects. In this connection we would like to note observations of Chief Justice M.C.Chagla speaking for a Division Bench of the Bombay High Court in State of Bombay v. Laxmidas, :

"[12]. Mr.Seervai has made an appeal to us that, apart from any authority, the writ of mandamus being discretionary, we should consider whether we should not put a limitation upon our own wide power and jurisdiction. Mr.Seervai says that it is impossible for any State to function if there is a constant interference by the High Court in the executive acts performed by the officers of the State. It may be that interference by the High Court may result in inconvenience or difficulty in administration. But what we have to guard against is a much greater evil. When we find in the modern State wide powers entrusted to government, powers which affect the property and person of the citizen, it is the duty of the courts to see that those wide powers are exercised in conformity with what the legislature has prescribed. We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the Legislature. Therefore, far from interfering with the good governance of State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign Legislature has not been obeyed and powers have been assumed which the Legislature never conferred upon the executive."

40. We are of the considered view that facts of this case call for exercise of power under Article 226 of the Constitution of India to prevent abuse and misuse of statutory office by the present incumbent. We have observed earlier that legislative measures are backed by best of intentions and laudable objectives. It falls on persons who exercise powers under the statutes, as to how they implement the statutory objectives. In other words, ultimately it all depends on persons who are charged with the duty to act under the respective statutes. If there are right persons for the jobs, the objectives will be achieved. If there are wrong persons, the statutes will be misused for oppression and corruption. In the present case misuse/abuse of statutory office by respondent No.3 has come to light. Corrective measures are required. The first step is removal of respondent No.3 from office of President of the Medical Council of India. We order that respondent No.3 shall cease to hold office of President of the Medical Council of India forthwith. In view of what has come to light about respondent No.3 as noted above, we consider it to be a fit case for prosecution of respondent No.3 in accordance with law. Respondent No.3 is a Professor in B.J. Medical College and Civil Hospital, Ahmedabad. He also held the post of President of the Medical Council of India constituted under the Indian Medical Council Act, 1956 and as such was required to perform public duties. Without expressing any final opinion on the question, prima facie respondent No.3 appears to be covered under the definition of 'public servant' under the Prevention of Corruption Act, 1988. The Central Bureau of Investigation (for short, CBI) is directed to initiate prosecution against respondent No.3 in a competent court and diligently pursue the same. If some further investigation is required to be carried out by the CBI, it may do so expeditiously and in not more than three months from the date of this judgment where after the prosecution should be launched forthwith. The CBI will not take any instructions in this behalf from the Central Government or any of its departments and will pursue the prosecution of respondent No.3 independently.

41. The B.J.Medical College where respondent No.3 is said to be employed will consider initiation of disciplinary proceedings against respondent No.3 in accordance with rules and the law.

42. To put the Medical Council of India back on its feet the Central Government which is enjoined with the task of constituting the Council under section 3 of the Act, should do its duty. The Central Government is directed to constitute the Council as required under section 3 of the Act as early as possible. After the Council is fully constituted in accordance with the statute, election be held for the offices of President and Vice President of the Council and the newly elected persons should take over the reins of the Council. Till then in order to ensure that smooth functioning of the Council is not affected, we appoint Major General (Retd.) S.P.Jhingon, Kirti Chakra, VSM, 1066, Sector 37, Arun Vihar, NOIDA-201303, (U.P.) as the Administrator who will perform all the functions of the President of the Council. He will preside over meetings of the Executive Committee of the Council and other meetings of the Council. He will be entitled to receive all emoluments, perquisites and facilities as were being hitherto enjoyed by and are commensurate with the status of the President of the Medical Council of India. In case the Administrator now appointed is required to undertake travel within the city or outside in discharge of his functions, the Council will bear all expenses of his travel and stay as per rules of the Council and as per past practice in this regard followed qua the President of the Council.

43. We have chosen Mr.S.P.Jhingon as Administrator for his administrative abilities. We are conscious of the fact that the Administrator is not a person with a medical background. In the event of the Administrator feeling the need for advice from a person belonging to the medical profession to enable him to discharge his duties more efficiently and effectively, he is authorised to associate with him a person from medical profession on such terms and conditions as he may deem appropriate. We hope and trust that the Administrator shall restore the public confidence in the Medical Council of India and bring the Medical Council back on its feet so that it is able to discharge its statutory functions in accordance with the spirit and object of setting up the Medical Council of India.

44. The appeals are disposed of accordingly with no order as to costs.