Shree Chhatrapati Shivaji ... vs Medical Council Of India & Ors.
2011 Latest Caselaw 2819 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: 24.05.2011
                         Judgment delivered on: 26.05.2011


           W.P.(C) No.3549/2011 and C.M.No.7434/2011


Shree Chhatrapati Shivaji Education Society      .....Petitioner

                  Through: Mr.S.N.A.Kazmi, Sr. Advocate with
                           Mr.Rajshekhar Rao, Advocate.

                         Vs.

Medical Council of India & Ors.              ......Respondents

                         Through: Mr.Amit Kumar, Advocate for
                                  the Respondent No.1-MCI.
                                  Mr.Neeraj Chaudhari, CGSC
                                  with    Mr.Mohit    Auluck,
                                  Advocate       for       the
                                  Respondent No.2.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                  Yes
2. To be referred to Reporter or not?               Yes
3. Whether the judgment should be reported           Yes
   in the Digest?



          W.P.(C) No.3549/2011             Page 1 of 23
 KAILASH GAMBHIR, J.

* +C.M.Nos.7435-7436/2011 (Exemption)

Allowed, subject to all just exceptions.

Application stands disposed of accordingly.

+W.P.(C) No.3549/2011 and C.M.Nos.7434/2011 (interim relief)

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to set

aside the letters dated 08.02.2011 and 27.04.2011 issued by

the MCI, respondent No.1 herein and after setting aside the

said letters to direct the respondent No.1-MCI to approve the

application of the petitioner for establishment of a new

medical college after completing the necessary formalities

before 15.07.2011.

2. Notice. Mr.Amit Kumar, Advocate accepts notice

on behalf of the respondent No.1-MCI. Mr.Mohit Auluck,

Advocate accepts notice on behalf of the

respondent No.2. With the consent of counsel for the parties,

the writ petition is taken up for final disposal today itself.

3. The case of the petitioner is that the petitioner is a

society registered under the Societies Registration Act, 1860

and owns and manages a 340 bedded running rural hospital

i.e. Rural Institute of Medical Sciences in Vidyagiri, Mayani,

Taluka Khatav, District Satara, Maharashtra. It is further

stated that the petitioner has completed the infrastructure of

a new rural medical college i.e. Institute of Medical Sciences

and Research at Mayani, Taluka Khatav, District Satara on a

land of 20 acres with hospital and college buildings,

necessary equipments and teaching faculty after investing a

huge sum of Rs.32 crores, out of which a sum of Rs.10 crore

was funded by a commercial loan obtained from the Bank of

India, Mayani Branch. It has been further stated that the

petitioner had addressed a letter dated 27.10.2009 to the

Maharashtra University of Health Sciences (MUHS), Nasik in

the prescribed format to seek affiliation of their new medical

college along with prescribed fee of Rs.7 lacs. It has also been

stated that on 29.12.2009, Maharashtra University of Health

Sciences made recommendations to the Government of

Maharashtra for issuance of the Essentiality Certificate to the

petitioner under Section 64(5) of the MUHS Act, 1998. It has

been further stated that in September, 2010, on the

recommendation of the MUHS, the State Government had

inspected the said institute of the petitioner so as to

determine whether the Essentiality Certificate should be

issued in favour of the petitioner or not. On 20.09.2010, the

petitioner had addressed a letter to the MCI proposing to

start a 100 seat Medical college in rural Maharashtra

attached to the 340 bedded running hospital so as to provide

quality education to the aspiring students from the rural

population. The petitioner had also deposited the prescribed

fee of Rs.7 lacs for establishment of new medical college

which amount was stated to have been received by the MCI. It

is also the case of the petitioner that after inspection by the

Committee appointed by the Directorate of Medical Education

and Research, they had recommended the case of the

petitioner to the Government of Maharashtra on or about

01.10.2010 for issuance of the Essentiality Certificate and the

said file as per the petitioner was also forwarded to the

Minister for Medical Education on or about 12.10.2010. It is

further stated that unfortunately due to certain political

turmoil in the State caused by Adarsh Societies' scam in

Mumbai, the Essentiality Certificate in favour of the petitioner

was not issued by the State Government before the laid down

cut-off date of 30.11.2010. It is further stated that on

27.11.2010, the petitioner through email communication was

informed by the MCI requiring the petitioner to furnish

certain documents including the Essentiality Certificate and

the Affiliation Certificate on or before 30.11.2010. It has also

been stated that on 29.11.2010 a letter was sent by the

petitioner to the MCI furnishing the required information, but

so far the submission of the Essentiality Certificate and

consent of the affiliation was concerned, the petitioner

brought to the notice of the MCI that due to uncertain

political situation in the State Government of Maharashtra,

the request of the petitioner for the grant of Essentiality

Certificate was still pending consideration with the State

Government. It is also the case of the petitioner that after

much follow up, the Essentiality Certificate was issued by the

State Government on 23.12.2010 and on 11.01.2011 the

provisional Affiliation Certificate was also issued in favour of

the petitioner by MUHS for the proposed institute of medical

sciences and research. Immediately upon receipt of the said

documents, the petitioner forwarded the same to the MCI

with a covering letter dated 12.01.2011. The petitioner

thereafter through various letters took up the matter with the

MCI and with the Central Government and the petitioner vide

letter dated 08.02.2011 was informed by the Board of

Governors (which superseded the Medical Council of India),

that the application of the petitioner seeking establishment of

a new medical college at Mayani, Taluka Khatav, District

Satara, Maharashtra was being returned as the application

made by the petitioner was found to be incomplete in terms of

the qualifying criteria. The said decision was reiterated by the

respondent-MCI vide their communication dated 27.04.2011

when they informed the petitioner that the request of the

petitioner was re-considered by the Board of Governors and

they had taken a decision to reiterate their earlier decision of

08.02.2011 as the petitioner did not submit the Essentiality

Certificate and Affiliation Certificate within the laid down cut

off date. Aggrieved with the said decision of the MCI, the

petitioner has approached this Court to seek setting aside of

the said letters and to seek approval of their medical college.

4. Arguing for the petitioner, Mr.S.N.A.Kazmi,

learned Senior counsel submits that the petitioner made all

efforts to obtain the Essentiality Certificate and Affiliation

Certificate, but the same were not issued by the concerned

authorities due to the political turmoil in the State on account

of Adarsh Societies' scam due to which even the Chief

Minister had to step down. Counsel for the petitioner further

submits that in any case, the petitioner could obtain the said

certificates on 23.12.2010 and 11.01.2011 respectively i.e.

much prior to the consideration of the case of the petitioner

by the Board of Governors of MCI. Counsel has also placed

reliance on sub-para 4 of para 35 of the judgment of the

Hon'ble Apex Court in the case of Mridul Dhar (Minor) and

Another vs. UOI (2005) 2 SCC 65 which mandates all the

State Governments to ensure compliance with the directions

of the court to undertake setting up of new colleges within the

requisite time schedule, otherwise to face penal

consequences. Counsel has also placed reliance on Regulation

7 of Medical Council of India, Establishment of Medical

College Regulations, 1999 to contend that the Central

Government can always re-consider the application filed by

the petitioner after taking into consideration the new or

additional facts. The contention of counsel is that with the

filing of the said Essentiality Certificate and Affiliation

Certificate although after the cutoff date, certainly it called

for re-consideration of the case of the petitioner as it was no

fault of the petitioner for delayed submission of these

certificates. Counsel also submitted that the respondent-MCI

had itself changed the dead line for the submission of

application from 30.09.2010 to 30.11.2010 and accordingly it

was incumbent upon them to have deferred the further

schedule accordingly. Counsel for the petitioner has also

placed reliance on the schedule illustrated by the petitioner

in para-6(o) of the writ petition which change would have

followed as a consequence of the change in the last date of

submission of the application from 30.09.2010 to 30.11.2010.

Counsel thus submits that to meet the unusual situation it was

well within the discretion of the respondent-MCI to entertain

the said certificates beyond the dead line, when in fact they

had already changed it for submission of the application form

by various hospitals, colleges and institutes. Counsel also

submits that the academic session of 2011-12 will start from

01.08.2011 and the last date of admission for MBBS students

is 30.09.2011 and, therefore, there is no likelihood of any

adverse affect on the academic session. In support of his

arguments, counsel for the petitioner has placed reliance on

the judgment of the Madras High Court in Medical Council

of India repd.by its Secretary Vs. Karpaga Vinayaga

Institute of Medical Sciences and Research

Centre(MANU/TN/0781/2008) with special emphasis on

para 14 of the same.

5. Opposing the present petition, Mr.Amit Kumar,

counsel appearing for the respondent No.1-MCI submits that

the time schedule mentioned in the regulation is mandatory in

character. Counsel also submits that the petitioner was not

eligible since it failed to fulfill the basic qualifying criteria of

submitting the Essentiality Certificate as well as Affiliation

Certificate from the University. Counsel thus submits that in

the absence of these documents, the application made by the

petitioner could not be considered by the MCI under Section

10-A of the Indian Medical Council Act. Counsel further

submits that it is not within the domain of the MCI to extend

the time schedule as the Apex Court in the case of Mridul

Dhar (supra) has given very strict directions that the time

schedule for establishment of a new medical college shall be

adhered strictly by all concerned. Counsel for the respondent

has also placed reliance on the Division Bench judgment of

the Punjab and Haryana High Court in The Medical Council

of India through its Deputy Secretary Vs. Gold Field

Siksha Sanstha and others, LPA No.788/2010.

6. I have heard learned counsel for the parties at the stage

of notice and given my thoughtful considerations to the

arguments advanced by them.

7. The petitioner herein is seeking directions to direct the

respondent No.1-MCI to approve the application of the

petitioner for establishment of a 100 seat medical college at

Vidyagiri, Mayani, Taluka Khatav, District Satara,

Maharashtra so as to provide quality education to the aspiring

students from the rural population of the nearby districts. It is

not in dispute between the parties that for setting up of any

new medical college, prior permission of the Central

Government is a pre-requisite in terms of Section 10-A of the

Indian Medical Council Act, 1956. The Medical Council of

India in exercise of the powers conferred on it by Section 10A

read with Section 33 of the Indian Medical Council Act, 1956

vide notification dated 30.07.1999 promulgated regulations

referred to as the Establishment of Medical College

Regulations, 1999. The qualifying criteria to apply for

permission to establish a new medical college has been laid

down in regulation 2 of the same which is reproduced as

under:-

"2. QUALIFING CRITERIA-

The eligible persons shall qualify to apply for permission to establish a medical college if the following conditions are fulfilled:-

1. that medical education is one of the objectives of the applicant in case the applicant is an autonomous body, registered society or charitable trust.

2. that a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person or is possessed by the applicant by way of 99 years lease for the construction of the college.

3. that Essentiality Certificate in Form 2 regarding No objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the council regulations, have been obtained by the person from the concerned State Government/ Union Territory Administration.

4. that Consent of affiliation in Form-3 for the proposed medical college has been obtained by the applicant from a University.

5. that the person owns and mages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into teaching institution in the campus of the proposed medical college."

The time schedule for receipt of the applications

for establishment of a new medical college and processing of

the applications by the Central Government and the Medical

Council of India is fixed in the schedule annexed to the said

1999 regulations and the same is reproduced 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

____________________________________________________

Stage of Last Date S. processing No.

      1.         Receipt of              From 1st
                 applications by         August to
                 the Central Govt.       31st
                                         August
                                         (both days
                                         inclusive)
                                         of      any
                                         year
      2.         Receipt of              30th
                 applications by         September
                 the MCI from
                 Central Govt.
      3.         Recommendations         15th
                 of         Medical      December
                 Council of India
                 to         Central
                 Government      for
                 issue of Letter of



             Intent
 4.         Issue of Letter of             15th
            Intent by the                  January
            Central
            Government.
 5.         Receipt of reply               15th
            from the applicant             February
            by the Central
            Government
            requesting      for
            Letter           of
            permission.
 6.         Receipt of Letter              1st March
            from        Central
            Government       by
            the         Medical
            Council of India
            for consideration
            for issue of Letter
            of Permission.
 7.         Recommendation                 15th May
            of Medical Council
            of India to Central
            Government      for
            issue of India to
            Central
            Government      for
            issue of Letter of
            Permission.
 8.         Issue of Letter of             15th June
            Permission 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 organization, basic infrastructural facilities, managerial and financial capabilities of the applicant shall be scrutinsed 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."

The above Schedule has been substituted in terms of Notification published on 26.08.2009 in the Gazette of India

8. As per the petitioner, they had applied to the

Maharashtra University of Health Sciences (MUHS) vide their

letter dated 27.10.2009 for the grant of affiliation to its said

new medical college along with prescribed fee of Rs.7 lacs

vide demand draft No.017135 dated 27.10.2009. As per the

petitioner, the Maharashtra University of Health Sciences

vide their recommendatory letter dated 29.12.2009

recommended to the Government of Maharashtra to issue the

Essentiality Certificate in favour of the petitioner under

Section 54(5) of the MUHS Act, 1998. It is also the case of the

petitioner that in September, 2010 i.e. nearly one year after

the recommendation made by MUHS, the concerned

authorities carried out the inspection of the site where the

petitioner proposed to set up the new 100 seat medical

college. Vide application dated 20.09.2010, the petitioner had

submitted the application to the respondent No.1-MCI along

with a demand draft of a sum of Rs.7 lacs to seek permission

of the Central Government to set up the said 100 seat

medical college in terms of 1999 regulations and Section 10A

of the Indian Medical Council Act. It is an admitted case

between the parties that along with the said application, the

petitioner did not submit the said 'Essentiality Certificate' and

the 'Affiliation Certificate' and manifestly so because the

same were not yet granted by the State Government of

Maharashtra and the Maharashtra University of Health

Sciences in favour of the petitioner. In the meanwhile, due to

the supersession of the Medical Council of India, the said cut

off date of 30.09.2010 as laid down in terms of 1999

regulations was extended to 30.11.2010. The petitioner could

not forward the said Essentiality Certificate and the Affiliation

Certificate even till the said extended date as the Essentiality

Certificate was granted by the State Government in favour of

the petitioner on 23.12.2010, while the Affiliation Certificate

was granted by the Maharashtra University of Health

Sciences on 11.01.2011. The said non-submission of the

Essentiality Certificate and the Affiliation Certificate by the

petitioner before the cut off date of 30.11.2010 led the

respondents to reject the case of the petitioner to establish

the 100 seat medical college. It is also not in dispute that vide

email dated 27.11.2010, the petitioner was called upon to

rectify the deficiencies and one of the main deficiencies

conveyed to the petitioner was non-submission of the

Essentiality Certificate and Affiliation Certificate. As per the

petitioner, it had taken all steps to seek the said Essentiality

Certificate and Affiliation Certificate, but it was only due to

uncertain political situation and upheavalness in the

Maharashtra State Government, caused by Adarsh Societies'

scam in Mumbai that the proposal for the grant of the

Essentiality Certificate could not be processed by the State

Government. The petitioner has further stated that despite

having pursued the matter diligently, the said Essentiality

Certificate could be issued by the State Government only on

23.12.2010 and the Affiliation Certificate by the concerned

university on 11.1.2011. The petitioner in para-I of the writ

petition has also pointed out that for about 70 days from

12.10.2010 to 22.12.2010 the political situation in the

Maharashtra State was fluid.

9. The Hon'ble Apex Court in sub para 14 of para 35

in Mridul Dhar case (supra) has given a clear mandate that

the time schedule for establishment of a new college or to

increase intake in existing college, shall be adhered strictly by

all concerned. In sub para 4 of para 35 of the said judgment,

the Hon'ble Supreme Court has further held that it shall be

the responsibility of all concerned, including the Chief

Secretaries of each State, to ensure compliance with the

directions of the court and non-compliance thereof would

make them liable for requisite penal consequences. It would

be apt to reproduce the said para as under:-

"35. Having regard to the aforesaid, we issue the following directions:

........

4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court

and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.

........

14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned."

The strict adherence to the laid down schedule in the

regulations is thus held to be imperative by the Supreme

Court, and rightly so, because any laxity or leverage in the

said schedule would play havoc to the entire scheme involving

various stages of processing of applications of various

colleges and institutes. The Division Bench of Punjab &

Haryana High Court in the matter of The Medical Council

of India through its Deputy Secretary Vs. Gold Field

Siksha Sanstha and others (supra) has also taken the same

view stating that it is not for this Court to relax the

mandatory provisions of the scheme and the directions given

by the Hon'ble'ble Supreme Court in Mridul Dhar's case

(supra) cannot be disregarded and hence the timeframe

stipulated has to be strictly followed. Relevant para of the

said judgment is reproduced as under:-

"15. Further more, even if there are certain directions in given cases permitting the relaxation of the said mandatory schedule approved in Mridul Dhar's case (supra) by the Hon'ble Supreme Court, it is not for this Court to relax the mandatory provisions of the scheme as this Court does not have the powers of the Hon'ble Supreme Court under Article 142 of the Constitution of India. The mandatory directions pursuant to the judgment of the Hon'ble Supreme Court in Mridul's case (supra) cannot be disregarded and the prescribed timeframe has to be followed".

In view of the aforesaid settled legal position, this Court does

not subscribe to the view taken by the Madras High Court in

the case of Medical Council of India repd.by its Secretary Vs.

Karpaga Vinayaga Institute of Medical Sciences and Research

Centre (supra).

10. Now coming to the stand taken by the learned

Senior counsel for the petitioner that there was political

uncertainty in the State of Maharashtra due to which the

State Government did not issue the Essentiality Certificate

before the said cut off date looked attractive at the first blush,

but going deeper into the detailed facts as set out in the

present petition, the argument deserves outright rejection. As

per the own case of the petitioner it had applied to the State

Government to seek affiliation with the concerned University

vide their letter dated 27.10.2009 and hence the MUHS on

29.12.2009 recommended to the Government of Maharashtra

for issuing of the Essentiality Certificate to the petitioner. No

material has been placed on record by the petitioner to show

that any follow up was made by the petitioner with the

concerned authorities to expedite the process for seeking the

said Essentiality Certificate and the Affiliation Certificate. Not

even a single letter has been placed on record by the

petitioner to this effect. Even the letter dated 27.10.2009

clearly shows that the petitioner had not yet purchased the

requisite 25 acres of land and they merely forwarded the

information regarding 10 acres of land and conceivably the

same might have been the cause for the State Government

not to give the said Essentiality Certificate to the petitioner.

11. Be that as it may, the stand of the petitioner that it

could not obtain the Essentiality Certificate because of

uncertain political atmosphere in the State Government of

Maharashtra for a period of 70 days cannot impress this

Court as the petitioner had ample time to pursue the grant of

Essentiality Certificate and Affiliation Certificate from the

date of submission of its letters dated 27.10.2009 and

20.10.2010. Even otherwise, it is not the case of the petitioner

that the State Government was not in place during the

relevant period and if such a ludicrous argument is accepted

then many such applicants would come out with such excuses

of political turbulence in various other States and Union

Territories. This Court, therefore, does not find any merit in

the contentions raised by learned Senior Counsel for the

petitioner that due to no fault of the petitioner in delay in

submission of the Essentiality Certificate and the Affiliation

Certificate, it cannot be deprived of the permission to run the

said new medical college.

12. In the light of the above discussion, there is no

merit in the present petition and the same is accordingly

dismissed.

May 26, 2011                        KAILASH GAMBHIR, J
dc