Teerthanker Mahaveer Institute ... vs Union Of India & Ors.
2011 Latest Caselaw 4820 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI


                                           Judgment reserved on:    23.09.2011
                                           Judgment delivered on: 28.09.2011


       W.P.(C) No. 5763/2011 & CM No.11723/2011


TEERTHANKER MAHAVEER INSTITUTE OF MANAGEMENT ......Petitioner

                      Through: Mr.Maninder Singh, Sr. Advocate with
                                     Mr.Gaurav Sharma, Advocate.


                             Vs.

UNION OF INDIA & ORS.                                              ......Respondents

                Through: Mr.B.V.Niren, CGSC with Mr.Utkarsh Sharma,
                             Advocate for Respondent No.1.
                             Mr.Nidesh Gupta, Sr.Advocate with Mr.Ashish
                             Kumar and Mr.Jawahar Narang, Adv. for MCI.

2.     W.P.(C) No. 5917/2011 & CM No.11971/2011


RAMA MEDICAL COLLEGE HOSPITAL & RESEARCH CENTRE, KANPUR
                                            ......Petitioner

                      Through: Mr.Neeraj Shekhar with Ms.Ayushi &
                                     Mr.Ashutosh Thakur, Advocates.


                             Vs.

UNION OF INDIA & ANR.                                              ......Respondents

                Through: Mr. Ravinder Aggarwal, Adv. for respondent
                             No.1.
                             Mr.Nidesh Gupta, Sr.Advocate with Mr.Ashish
                             Kumar and Mr.Jawahar Narang, Adv. for MCI.
W.P.(C) Nos.5763, 5917 & 4920/2011                                  Page 1 of 110
 3.     W.P.(C) No. 4920/2011 & CM No.9982/2011


SCHOOL OF MEDICAL SCIENCE & RESEARCH, SHARDA UNIVERSITY
                                            ......Petitioner

                      Through: Mr.J.P.Sengh, Sr. Advocate with Mr.Ranjan
                                     K.Pandey    &   Mr.Kaushal      P.Gautam,
                                     Advocates for petitioner with Mr.Sanjay
                                     Kumar Pandey, Deputy Registrar (Legal).
                                     Mr.Gaurav Sharma, Advocate.


                             Vs.

UNION OF INDIA & ORS.                                            ......Respondents

                Through: Mr.B.V.Niren, CGSC with Mr.Utkarsh Sharma,
                             Advocate for Respondent No.1.
                             Mr.Nidesh Gupta, Sr.Advocate with Mr.Ashish
                             Kumar and Mr.Jawahar Narang, Adv. for MCI.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may               Yes

     be allowed to see the judgment?

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported                 Yes

     in the Digest?

KAILASH GAMBHIR, J.

1. This order shall dispose of a batch of three writ petitions

bearing W.P.(C) Nos. 5763/2011, 5917/2011 and W.P.(C) No.

4920/2011 .

2. By these petitions filed under Article 226 of the

Constitution of India, the petitioner institutes/medical colleges have

approached this court to challenge the order of the respondent

Medical Council of India/Board of Governors whereby it has rejected

the grant of additional intake in the MBBS course in the petitioner

institutes/colleges.

3. The adumbrated facts of the three petitions are set out as

under:

W.P.(C) Nos. 5763/2011

4. The petitioner herein applied initially for intake of 150 students

in MBBS course but subsequently requested the respondent to inspect the

college for 100 admissions only and thus consequently the respondent

granted permission for starting the medical college for 100 students and the

subsequent renewals followed. It is only when the petitioner applied for

permission of 150 students for the session 2011-2012, that the respondent

granted renewal for 100 students only vide letter dated 8.6.2011 and

therefore feeling aggrieved with the said act of non grant of permission and

the non communication of the same, the petitioner has preferred the

present petition.

W.P.(C) No. 5917/2011

5. The petitioner college herein was granted permission for

running a medical college with 100 intake for MBBS course and was

granted subsequent annual renewals for 100 admissions as well. It is only

when the petitioner applied for the additional intake of 150 for the

academic session of 2011-2012 alongwith with the fourth annual renewal,

that the said request of the petitioner was rejected vide letter dated

6.5.2011 on the ground of infrastructural deficiencies. The petitioner

through various letters applied to the respondent for reconsideration of its

application for additional intake and it is then that vide impugned letter

dated 30.6.2011 that the respondent rejected the application of the

petitioner based on the regulations stating that the petitioner college is not

eligible for grant of additional intake. Feeling aggrieved with the same, the

petitioner has approached this court.

W.P.(C) No. 4920/2011

6. The petitioner herein applied for annual intake of 150 students

at the time of its establishment but after inspection was granted the

permission for intake of 100 students only. It is thereafter that for the

academic session 2010-11, that the petitioner applied for additional intake

of 150 but was granted renewal for 100 admissions only. Again, for the

academic year 2011-2012 the petitioner reapplied for 150 annual intake

but was found deficient in certain areas and after complying with the same,

another inspection was carried out in which the petitioner college was

found fit for the intake of 150 students but surprisingly vide impugned

order dated 30.6.2011, was granted renewal for 100 admissions only thus

arbitrarily denying the additional intake of 150 to the petitioner and feeling

aggrieved with the same, the petitioner has preferred the present petition.

7. Mr. Maninder Singh, learned Senior Advocate appearing for

petitioner in W.P.(C) No. 5768/2011 submitted that vide letter dated

28.2.2011, the request for inspection of 150 admissions for 2011-

2012 was made by the petitioner to the Board of Governors and vide

assessment report dated 16.5.2011 (at page 90 of the paper book),

the counsel pointed out that the inspection has been carried out for

150 admissions and hence the petitioner college has infrastructure in

place for admitting 150 students as no deficiency was found in the

said assessment report and in the remarks against various columns in

the assessment report but despite having the requisite infrastructure

in place, the college has not been given approval for additional intake

of 150 students.

8. Referring to the impugned order dated 8.6.2011, the

petitioner pointed out that no ground for not granting additional

intake of 150 students has been given in the said impugned order, as

the impugned order only mentions that the Board of Governors has

granted permission for admission of 4th Batch of 100 MBBS students

only. The contention of the counsel for the petitioner was that the

reasons of arriving at a decision by a statutory authority whether in

favour or against , cannot be added by subsequent affidavits as per

the mandate of the Supreme Court in the case of Mohinder Singh Gill

Vs. Chief Election Commissioner, 1978 (1) SCC 405. The counsel

further submitted that no statutory rule or regulation has been

mentioned in the said impugned order of 8.6.2011 to deny the

additional intake to the petitioner as has now been done in the

counter affidavit by the respondent and thus the act of the

respondent of non communication of the ground of rejection is

illegal and arbitrary.

9. Mr. Maninder Singh, without prejudice to his above said

submissions, in the alternative submitted that there is no prohibition

in any of the provisions of the Indian Medical Council Act, 1956 which

stipulates that any college whose first batch has not reached the

final year and has not been recognized under Section 11 (2) of the

Act is prohibited from seeking additional intake . The counsel further

submitted that the present case is not a case for increase of the

admission capacity per se and the Medical Council of India, Opening

of a New or Higher Course of Study or Training (including Post-

graduate Course of Study or Training) and Increase of Admission

Capacity in any Course of Study or Training (including a Postgraduate

Course of Study or Training) Regulations, 2000, Part II of which deals

with the scheme for permission of the Central Government to

increase the admission capacity in any course of study or training in

the existing medical colleges and institutions and sub-clause 3 of

which deals with the "Qualification Criteria" are not applicable to the

case of the petitioner.

10. Drawing attention of this Court to Regulation 8(3) of the Medical

Council of India Establishment of Medical College Regulations, 1999

cited by the Medical Council of India in its counter affidavit, the

counsel submitted that the said clause talks about a formal

recognition and not simply a recognition which means that the said

recognition is a formality and nothing else. Further drawing attention

to page 224 of the paper book which is a statement indicating the

year wise targets to be achieved by applicant of a new medical

college/institution, Annexure II to the Medical Council of India,

Requirements to be fulfilled by the Applicant Colleges for obtaining

Letter of Intent and Letter of Permission for Establishment of New

Medical Colleges and Yearly Renewals under Section 10A of the IMC

Act, 1956, the counsel pointed out that the statement provides for

gradual increase of various facilities existing in a college, for example,

the staff requirement at the time of beginning of the first admission

has to be 25% of the staff components and at the time of first

renewal 50%, at the time of second renewal 75% and at the time of

third renewal 100%, thus, demonstrating that the regulations

contemplate the year wise check of infrastructure and targets to be

achieved and what is granted at the end of 5 years is a formal

recognition only.

11. Tracing the history of Section 10A of the Indian Medical

Council Act, counsel submitted that before the introduction of the

said section in 1993 there was no provision for any prior permission

from the Central Government for the establishment of a new medical

college and it is only when the MBBS students admitted in a college

reached the final year, the request for recognition at the time of

MBBS examination was to be sent to the Central Government and

consequently the MCI was required to carry out the inspection of the

college in terms of section 17 of the Act and the Central Govt. on

receipt of recommendations of the MCI pursuant to the said

inspection, used to issue the notification under Section 11 (2) for

granting recognition to the said medical college or institution.

12. Drawing attention of this Court to the judgment of the Apex

Court in the case of Pradeep Jain vs. UOI (1984) 3 SCC 654 and

Mridul Dhar vs. Union of India 2005 (2) SCC 65 , the counsel pointed

out that the Supreme Court while approving an All India Quota in the

Medical Colleges has taken into account the seats to be contributed to

the All India Quota by the private colleges also and the seats that are

required to be contributed by the private colleges to the All India

quota are also the seats of the colleges recognized by the MCI under

section 10A and not seats under 11(2) alone. The counsel further

submitted that unfortunately if any college closes down, the students

who are already admitted in the said college pursuant to the

permission or renewal granted by the MCI are treated to be having

undergone a recognized course by the Medical Council for the

purpose which they had spent in the college which has not been able

to continue under Section 10A of the Act. The counsel also drew

attention of this Court to the fact that the upper ceiling of 150

admissions at the time of commencement of a medical college

annually incorporated in the MCI Regulations has now been increased

to 250 admissions annually which demonstrates that the Government

of India contemplates for securing higher number of doctors for basic

health care system in this country. Drawing attention of this court to

(page 32 of the compilation of the petitioner) to the decision of the

Board of Governors with regard to the request received for

establishment/renewal/increase in seats in respect of institutions, at

Item No. 77 which is a case of one Sikkim Manipal Institute of

Medical Sciences, Gangtok where the permission for increase in

intake i.e. from 50 to 100 seats for the academic year 2010-2011 was

granted and then again was considered for additional intake from 100

to 150 for the academic year 2011-2012. The counsel submitted that

this college was evaluated by the MCI for 150 admissions for 2011-

2012 but was denied the said permission on the ground of deficiencies

in the infrastructure, teaching and other facilities. The contention of

the counsel for the petitioner, thus, was that had there been no

deficiencies found by the MCI in this college, it would have been

granted the permission for 150 admissions for the present academic

year of 2011-2012 and the rejection letter in respect of the said

college (at page 34 of the compilation) nowhere talks about the

rejection on the ground of the prohibition contemplated in the

Regulations as has been done by the respondent in the case of the

petitioner college. Similarly, the counsel pointed out that in the case

of Maulana Azad Medical College, New Delhi (at page 36 of the

compilation), it was permitted to initial intake of 180 students and

the MCI granted the permission from 180 to 200 MBBS admissions for

the academic year of 2010-2011 and once again, has granted increase

in permission from 200 to 250 admissions to this college for the

present academic year of 2011-2012. The counsel thus submitted that

now with the amendment to the upper limit of intake of students, a

new medical college at the time of commencement of the college can

make 250 admissions whereas an existing college like the petitioner

which has the adequate infrastructure in place and has also been

found fit by the MCI for intake of 150 students cannot be allowed to

increase its intake from 100 to 150 because of the unjust and

unreasonable interpretations sought to be carved out by the

respondent of the rules and regulations of the MCI.

13. Learned counsel for the petitioner further submitted that

the petitioner institute had no doubt applied for initial intake for 150

students at the commencement of the college but then subsequently

had asked that the course be started for 100 students but for the

fourth batch for the academic year 2011-12 , the petitioner college

applied for admitting 150 students again and therefore the increase

asked for by the petitioner college is not strictly " additional intake"

per se as appearing in the statute.

14. Referring to MCI regulations on Graduate Medical

Education, 1997 unamended clause 6 (2) referring to migration, the

counsel pointed out that the said clause mentions that both the

colleges i.e. one at which the student is studying at present and one to

which migration is sought are recognized by the MCI, thus showing

that the recognition needed for migration was by the MCI alone and

not by the Central Government. The counsel further referred to the

notification dated 20.10.2008, wherein the said clause 6(2) has been

substituted and now reads as that the migration of students from one

college to another is permissible only if both the colleges are

recognized by the Central Government under Section 11 (2) of Indian

Medical Council Act 1956. The contention of the counsel for the

petitioner was that wherever the requirement of the recognition by

the Central Government under Section 11(2) of the Act was to be

stipulated, it has been so stipulated in the MCI regulations as

demonstrated by clause 6 above as the concept of recognition by the

Central Government under Section 11(2) has been consciously

incorporated by the abovesaid amendment. The contention of the

counsel for the petitioner was that the recognition granted by the

MCI is different from the recognition granted by the Central Govt.

under 11(2) and the petitioner in the present case does not have to

wait for the recognition under 11(2) for admitting additional intake

of students.

15. The petitioner while encompassing the scope and wide

ambit of the jurisdiction of this court under Article 226 of the

Constitution of India, referred to the judgment of the Apex Court in

the case of Comptroller and Auditor-General of India Vs.

K.S.Jagannathan & Anr. (1986) 2 SCC 679 to submit that in order to

prevent injustice, the court may itself pass an order or give directions

which the Government or the public authority should have passed or

given, had it properly and lawfully exercised its discretion. Further

referring to the judgment of the Apex Court in the case of Secretary,

Cannanore District Muslim Educational Association vs. State of Kerala

& Ors. 2010 (6) SCC 373, the counsel submitted that the above

judgment of K.S.Jagannathan (Supra) has been reiterated by the Apex

Court in this case in which case the directions to sanction a higher

secondary course had been granted by the court itself, thus showing

that the court is empowered to directly grant approval or permission.

Further referring to the judgment of the Apex court in Al- Karim

Educational Trust Vs. State of Bihar 1996 (8) SCC 330, the counsel

laid emphasis on para 11 (h) to submit that the fate of the students

should not hang in a balance in an everlasting manner due to the acts

of the statutory authorities. Referring to para 12 of the same, the

counsel submitted that appropriate directions can be given by this

court itself in favour of the petitioner as well. Further referring to

the judgment of this court in the case of Integrated Education

Development vs. UOI 82(1999) DLT 888, and referring to para 9 of the

same, the counsel submitted that the judgment of the Apex Court in

Al-Karim (supra) was relied upon by this court to give relief for

starting a new Dental College and submitted that even if there are

minor deficiencies, this court in exercise of its jurisdiction can direct

and grant recognition to the petitioner. Further referring to the

judgment of the Calcutta High Court in the case of Nazrul Islam vs.

State of West Bengal & Ors. (2002) 1 CALLT 412(HC), the counsel

submitted that the Hon‟ble Calcutta High Court also gave directions

to give recognition in the same manner. Emphasizing his contention,

the counsel further referred to the judgment of the Madhya Pradesh

High Court in Mansarovar Dental College vs. UOI WP(C) No. 8809/09,

order dated 9th October, 2009 submitted that in the said matter also

the Hon‟ble High Court directed the permission for additional intake

in the BDS Course. Referring to judgment of the Division Bench of

the Madhya Pradesh High Court in the case of State of M.P. Vs. UOI

W.P.(C) 9653/10 decided on 23rd August, 2010, the counsel submitted

that in the said matter also the court granted interim stay on the

refusal of the MCI to grant renewal and directed to hold the

counseling of seats in question for allotment of seats. Counsel further

drew attention of this court to the judgment of the Madras High Court

in the case of Madha Dental College & Hospital vs. UOI (2011) IMLJ

1065, wherein relying upon the judgment of the Apex Court in the

case of Al-Karim (supra) and yet another judgment of the Apex Court

in Anjuman E. Islam vs. State of Karnataka (2001) 9SCC 465 , a

direction was given to the MCI to renew the permission of the

petitioner for 3rd year BDS course. The counsel also referred to the

judgment of the Madhya Pradesh High Court in the case of Shri

Aurobindo Institute of Medical Sciences v. UOI WP(C)4821/11 decided

on 24.6.2011, wherein the decision of the MCI rejecting the

petitioner‟s prayer for grant of permission was quashed and a

direction was given to issue the letter of recommendation for

permission to start the PGMD Course in Forensic Medicine in the

petitioner college. The counsel also referred to the order of the

Supreme Court in SLP 16618/11 decided on 4th July, 2011 wherein the

said judgment of Madhya Pradesh High Court in Sri Aurobindo

(Supra) was challenged by the MCI and the same was dismissed by

the Hon‟ble Supreme Court. Counsel further referred to the decision

of the Hon‟ble Rajasthan High Court in the case of Mahatma Gandhi

Medical College vs. MCI WP(C)9716/11 decided on 29th July, 2011,

and submitted that in the said case also the order of rejection of the

MCI for the additional intake was stayed by the court and the college

was allowed to participate in the counseling process subject to the

final decision of the writ petition. Referring to the decision of the

Division Bench of the Karnataka High Court in the case of MVI

Medical College and Research Hospital Bangalore vs. UOI

WP(C)7771/11 decided on 22nd August, 2011 wherein the additional

intake from 150 to 200 was permitted by the Hon‟ble Court.

Further drawing attention of this court to the judgment of the Apex

Court in the case of H.L. Trehan & Ors. Vs. UOI 1989 (1) SCC 764, the

counsel submitted that the Supreme Court observed that wherever

the opportunity of hearing was given by a statutory authority to give a

post decisional hearing on the representation of the parties before

it, it did not yield any fruitful purpose and hence this court in exercise

of writ jurisdiction may straightway grant relief of additional intake

to the petitioner and not remand the matter to MCI.

16. Mr. Maninder Singh, Senior Advocate also appearing in

W.P.(C) No. 5917/2011 submitted that the facts of the said case are

similar to the facts of the case in W.P.(C) No. 5763/2011. The counsel

also submitted that in W.P.(C) No. 5917/2011, the petitioner college

was granted permission for 100 students and thereafter asked for

admitting 150 students for the academic session 2011-12 and

inspection was carried out for 150 admissions (as per the report

placed at page 85 of the paper book) and deficiencies were found out

and thus, the permission for additional intake was rejected. The

counsel submitted that the respondent has changed its stand as per

the letter dated 30th June, 2011 wherein it has cited the reason for not

granting the permission for additional intake as criteria 1(1) under the

heading "Qualification Criteria" in part II of the "Opening of a New or

Higher Course of Study or Training and Increase of Admission

Capacity in any course or Training Regulations, 2000" by quoting the

unamended regulations which states that the Medical

College/institution must be recognized by the MCI for running

Bachelor of Medicine and Bachelor of Surgery/post graduate course

and since the petitioner college is still not recognized for 100

admissions, the Board of Governors cannot grant the permission for

additional intake. The counsel thus submitted that in this case also

the respondent has added the ground of qualifying criteria by a

subsequent letter and initially the application was rejected only on the

ground of deficiencies, which act of the respondent MCI is arbitrary

and perverse in the light of the judgment in Mohinder Singh Gill

(Supra).

17. Mr. J.P. Sengh, Senior Advocate appearing for the

petitioner in W.P.(C) 4920/11 submitted that the facts of the case at

hand are broadly similar to the facts of earlier two petitions, but he

only sought to carve out the legal incongruity in the said regulations

cited by the respondent for arbitrarily refusing the grant of additional

intake to the petitioner college. Mr. Sengh submitted that in the case

of WP(C) 4920/2011, the petitioner college also applied for permission

at the initial stage for intake of 150 students and the Essentiality

Certificate and the Letter of Permission (LOP) was also granted for

150 students. The counsel also submitted that after applying for the

additional intake of 150 students, the respondent MCI inspected the

petitioner college both for 100 as well as 150 admissions. Drawing

attention of this Court to Annexure P8 (page 52 of the paper book),

the counsel pointed out that the assessment under Section 10A for the

third batch of 100 students was done whereas against Section 11 (2)

column, recognition has been duly mentioned. Further drawing

attention of this Court (page 70 of the paper book which is the letter

of permission (LOP) for 150 admissions for academic year 2011-12)

wherein against the column of number of seats as per Essentiality

Certificate 150 is mentioned and against the column of plot of land is

mentioned that the college is already existing and assessment for

second renewal of 100 seats has been done in the present assessment.

Drawing attention of this Court to a letter by the Board of Governors

dated 11.4.2011 (Annexure P9 at page 88 of the paper book) the

counsel submitted that the letter mentions that the assessment report

was considered by the Board of Governors and decided to neither

renew the permission for admission of third batch of MBBS students

for 100 seats nor issue LOP for the proposed increase of seats from

100 to 150 for the academic session 2011-12 because of the reasons

which are only the deficiencies existing in the petitioner institute.

The counsel further pointed out a letter dated 30.6.2011 (placed on

record as Annexure P14 at page 121 of the paper book) was sent by

the Board of Governors to the petitioner college which states that

regarding the request for grant of LOP for proposed increase of seats

from 100 to 150, the Board of Governors noted that according to

criteria 1(1) under the heading "Qualification Criteria" in Part II of

the "Opening of a New Higher course of Study or Training

Regulations 2000", the petitioner college is still not yet recognized for

100 admissions, and thus the Board of Governors as a policy have

decided not to issue LOP for the proposed increase of seats under

Section 10A of the IMC Act from 100 to 150 for the academic year

2011-12. The contention of the counsel for the petitioner was that if

the petitioner college did not qualify to apply for additional intake as

contended by the MCI now, then the MCI should not have entertained

the application for such additional intake and carried out the

subsequent inspection. The counsel contended that the MCI being a

body much aware of the rules and regulations framed by the Board of

Governors and under the Indian Medical Council Act, 1956 should

have rejected the application of the petitioner for additional intake at

the very outset and now it cannot turn around and cite the said

regulation of "Qualification Criteria" for rejecting the application for

additional intake.

18. The counsel referred to the "Qualification Criteria" under

the "Opening of a New or Higher course of study or training and

increase of admission capacity in any course of study or training

Regulations 2000" clause 3(1)1. The counsel contended that the said

regulation on which reliance has been placed by the respondent does

not mention that the MBBS degree awarded by the said medical

college or institution has to be recognized for applying for additional

intake and all that the said regulation mentions is that the medical

college/institution must be recognized by the Medical Council of India

for running the MBBS course. The contention of the counsel was that,

however, for the start of post graduate course in a medical college,

the MBBS degree awarded by that college must be a recognized

degree and if in the event that the MBBS degree awarded by that

college is not yet recognized, then the said college can apply for

additional intake only at the time of the fourth renewal i.e. along with

the admission of fifth batch for the MBBS course. The contention of

the counsel for the petitioner was that there is no embargo for an

institute to apply for additional intake before the grant of recognition

of its MBBS degree as the said Qualification Criteria only stipulates

that the institute/college applying for the additional intake must be

running an MBBS course recognized by the Medical Council of India

which recognition is recognition granted by the Medical Council of

India under Section 10A of the Indian Medical Council Act and not

recognition for the award of degree of MBBS as per Section 11(2) of

the Indian Medical Council Act.

19. Mr. Sengh, learned Sr. Advocate further submitted that

the MCI does not grant any recognition and it is only a

recommendatory body. The contention of the counsel was that the

recognition is granted by the Central Government and not by the MCI

and nowhere in Section 10A, more particularly sub-section 2(a) and

sub-Section 4, there is any mention of recognition by the MCI but the

recognition is only by the Central Govt. on the recommendations of

the MCI. The contention of the counsel for the petitioner was that

any regulation made in pursuance of a statutory provision referring

to the regulations as cited by the counsel for the respondent in its

counter affidavit cannot override the statutory provisions itself. The

argument of the counsel therefore was that even without challenging

the said regulations, the same can be read down for them to be

harmoniously construed with the statutory provisions of the Act. The

counsel further submitted while referring to sub-section 7 of Section

10A in none of the factors enumerated therein there is any mention of

recognition in any of the sub clauses and hence submitted that

recognition is the sole prerogative and privilege of the Central Govt.

and the MCI is only a recommendatory body.

20. The counsel further submitted that if the argument of the

respondent MCI is accepted then the whole purpose of yearly

renewals being granted by the MCI would have no meaning.

Counsel further submitted that the yearly monitoring by the MCI of

the infrastructure and other facilities of a medical college would have

no purpose if the recognition which is granted after five years to the

MBBS degree is considered so sacrosanct so as to deprive a college

for allowing any additional intake before the completion of five years

of its MBBS course.

21. Mr. Nidhesh Gupta, learned Senior Advocate appearing for

respondent/MCI in W.P(C) No. 5917/2011 at the very outset sought to

bring clarity to the interpretation of the various regulations as carved

out by the counsel for the petitioners. Drawing attention of this Court

to "The Opening of a New or Higher Course of Study or Training

(including post graduate course of study or training) and Increase of

Admission Capacity in any Course of Study and Training Regulations

2000", read that in exercise of powers conferred by Section 10A read

with Section 33 of the Indian Medical Council Act in supersession of

the Establishment of New Medical Colleges, Opening of Higher

Courses of Study and increase of Admission Capacity in Medical

Colleges Regulations, 1993 in so far it relates to application for

permission of the Central Government to increase the admission

capacity in MBBS/higher courses in the existing medical

colleges/institutions, the Medical Council of India with the previous

sanction of the Central Government hereby makes the following

regulations; clause 3 (b) of which reads as the permission for

establishment of a new or higher course of study no medical college

shall increase admission capacity in any course of study or training

including a post graduate course or training except after obtaining the

previous permission of the Central Government by submitting

schemes annexed to these regulations. Referring to (Page 194) the

scheme under the said Clause 3(b) wherein clause 3 of the said

scheme lays down the "Qualification Criteria", the counsel submitted

that the said "Qualification Criteria" stipulates that the medical

college/institution shall qualify to apply for increasing the number of

admissions in MBBS if the conditions stipulated therein are fulfilled.

The contention of the counsel for the respondent was that fulfillment

of the said "Qualification Criteria" is a condition precedent for

applying for additional intake for any medical college or institution.

Referring to amended clause 3(1).1, the counsel stated that the said

clause envisages recognition by the Medical Council of India and in

the present cases, none of the petitioners are recognized by the

Medical Council of India. Referring to the second part of the said

clause, the counsel submitted that however, an institute willing to

apply for additional intake in a post graduate course may do so only if

the MBBS degree awarded by the said college is recognized and even

if the said degree of MBBS awarded by the said institute is not

recognized, the college may apply for the additional intake in a post

graduate course along with the fourth renewal i.e. along with the

admission of the 5th batch of the MBBS course. The contention of the

counsel for the respondent/MCI was that the said regulation cannot in

any circumstances have two interpretations and on a plain reading of

the said regulation, it is clear that any institute or college applying for

additional intake must be recognized by the MCI which recognition

means for the award of its MBBS degree. The counsel further

submitted that in the absence of challenge to the said regulations,

there are no two interpretations that are possible of the said

regulation and the interpretation as sought by the respondent MCI

being the logical and correct interpretation of the said regulation, the

present petitions deserve dismissal on this ground alone.

22. The counsel for the respondent further submitted that the

petitioner colleges herein are approved for running an MBBS course

and not recognized by the MCI and hence recognition and approval

are two different concepts and recognition is granted only after the

completion of 5 years of the MBBS course. The counsel for the

respondent MCI drew attention of this Court to the Medical Council of

India, Establishment of Medical College Regulations, 1999 where

under clause 2 of the said regulations the "medical college" is defined

as any institution by whatever name called in which a person may

undergo a course of study or training which will qualify him for the

award of any recognized graduate medical qualification. In the

background of the said definition, the counsel drew attention of this

Court to Clause 8 which refers to the "Grant of Permission" and

clause 3 of the same which states that 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 the

verification of the achievement of annual targets etc. and this process

of renewal of permission will continue till such time the establishment

of the medical college and extension of the hospital facilities are

completed and a formal recognition of medical college is granted. The

contention of the counsel for the respondent was that the term

"formal recognition" appearing in the said regulation means the

recognition granted to the college only after the 5 years of the MBBS

course have been completed and does not contemplate to mean the

permission to run a medical college. The counsel further submitted

that the said regulation also states the this process of renewal of

permission continues till the establishment of medical college and

expansion of hospital facility are completed and the scheme stipulates

that the medical college or institute will give an annual application

and if it meets the requirement, then the permission is given to the

institute on annual basis and after five years if all these requirements

are met then a formal recognition is given. The counsel also submitted

that if an Institute does not meet these requirements, then there is no

question of giving recognition. The contention of counsel was that the

formal recognition is to be given only if five years approval is given

and after completion of five years, the college applies for recognition

and not prior to that. The counsel submitted that in any case the

petitioners colleges herein are at the stage of fourth renewal and the

permission for additional intake is not permissible even in the fifth

year as per the said regulation which states recognition of an MBBS

course which is a course of 5 years and not recognition of first year or

second year and so on. Drawing attention of this Court to the MCI

requirements to be fulfilled by the applicant colleges for obtaining

Letter of Intent and Letter of Permission for establishment of new

medical colleges and yearly renewals under Section 10A of the Indian

Medical Council Act, 1956, the counsel has pointed to Annexure II of

the same which is a statement indicating yearwise targets to be

achieved by applicant of a new medical college/institution admitting

50 students under Section 10A of the IMC Act which demonstrates the

yearly renewal and the targets to be achieved by the petitioner

college. The contention of the counsel for the respondent was from

the said statement it is clear that there are specified requirements set

out for each year and it is only when all the said requirements are met

and the college has fulfilled them, that a recognized MBBS degree can

be granted and thereafter the College will be considered as a

recognized medical college.

23. Referring to Section 10A of the Medical Council Act, 1956

the counsel drew attention to sub section 1(b)(ii) which provides for

the increase in admission capacity in any course of training which

cannot be done except with the previous permission of the Central

Government obtained in accordance with the provisions of Section

10A of the Act. The counsel drew attention to Section 10A (2)(a) which

states that for applying for additional intake, the medical college shall

submit to the Central Government a scheme in accordance with

clause (b) and the Central Government shall refer the scheme to the

Council for its recommendations; Section 2(b) states about the said

scheme which should be in such form and contain such particulars

and be preferred in such manner and accompanied by such fee as may

be prescribed. The contention of the counsel for the respondent was

that the regulations referred by him hereinabove have been made by

virtue of the power conferred by Section 33 of the said Act more

particularly clause (fa), which grants the power to the MCI to

formulate a scheme to give effect to Section 10A of the said Act.

Answering the question posed by this Court to the counsel for the

respondent that whether "additional intake" appearing in Section 10A

only confines to the intake allowed only after the recognition of the

MBBS degree awarded by the said college, the counsel answering in

the affirmative drew attention of this Court to Explanation 2 of

Section 10A (1) which explains the term "admission capacity"

appearing in Sub Section 1(b)(ii) as that capacity which relates to the

maximum number of students that may be fixed by the Council from

time to time for being admitted to such course or training and in the

case of the petitioner institutes, the said admission capacity has been

fixed at 100 admissions only. The contention of the counsel for the

respondent was that all the regulations and the concerned Sections

referred by him if read in totality would lead to only a single

conclusion that no institute or college can apply for additional intake

before the recognition of its MBBS degree and the petitioners herein

have not placed on record any case where the respondent has granted

permission for additional intake to any college without its MBBS

degree being recognized.

24. The counsel for the respondent drawing attention of this

court (annexure R2/1 colly page 178 in W.P.(C) No. 5917/2011) to

the notification dated 4.9.2010 which is an amendment to the Indian

Medical Council Act, where by virtue of clause 3B the MCI has been

superseded by the Board of Governors and sub clause (ii) provides

that Board the Governors shall grant permission under Section 10A,

without prior permission of the Central Govt. including exercise of the

power to finally approve or disapprove a college under Section 10A.

The contention of the counsel for the respondent was that as of today

the Central Government for the purposes of Section 10A stands

superseded by the Board of the Governors and has to be read

accordingly for the purposes of the present petitions as at the relevant

time when the petitioner institutions had applied for additional intake,

the Central Government stood superseded by the Board of Governors.

25. The counsel while responding to the argument of counsel

for the petitioners that the petitioner institute had been duly

approved and inspected for 150 admissions and the additional intake

now sought cannot be said to be additional intake per se, the counsel

submitted that on a plain reading of Explanation 2 of sub section 10A

(1) which states that the admission capacity 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 and hence it is the prerogative of MCI to fix the number of

students irrespective of what had been applied by the petitioner

institute or for what the petitioner institute has been inspected for.

The contention of the counsel for the respondent was that for

whatever number the petitioner college has sought permission or

additional intake is not relevant and will not define what is the

admission capacity of that institute as Explanation 2 to clause 1 of

Section 10A makes it crystal clear that the admission capacity is what

has been fixed by the MCI. Responding to the argument of the

petitioner that the expression "from time to time" appearing in the

said Explanation 2 referred to hereinabove is in pursuance of the

stipulation that additional intake is permitted under Section 10A of

the Act without the same having any link with the recognition under

Section 11 (2) of the Act, the counsel submitted that the expression

„from time to time‟ has to be read in consonance of the Act and the

regulations framed thereunder and cannot be de hors to the rest of

the provisions and regulations framed under the Act.

26. The counsel further submitted that Section 10A (2) (a) and

(b) refer to a scheme to be made for carrying out the purpose of

Section 10A and such has been left to the concerned authorities

which is the MCI and the MCI has thus made the regulations

thereunder such as the qualification criteria for applying for

additional intake by the medical colleges which stipulates that the

college shall be recognized before being eligible to apply for

additional intake. Referring to the said qualification criteria, the

counsel submitted that the said provision states that the medical

college must be recognized by the MCI and none of the petitioners in

the present case has been recognized by the MCI. The contention of

the counsel for the respondent was that the said qualification criteria

does not state that whether the medical college is recognized for

the first year or second year or third year but states that the medical

college must be recognized by the MCI for running the MBBS

course which condition is not fulfilled by any of the petitioners herein.

Emphasizing the word „however‟ occurring in the said regulation, the

counsel submitted that the said word is in the nature of an exception

which provides that any college which is not yet recognized for the

grant of MBBS degree may apply for additional intake in post

graduate course at the time of 4th renewal i.e. along with the

admission of 5th batch of MBBS Course. The counsel thus submitted

that the general rule occurring in the first part of the said regulation

is that the medical college must be recognized by the MCI for

applying for additional intake in MBBS Course and it is only in the

case of post graduate course, that by using the word „however‟ an

exception has been carved out. Referring to the same qualification

criteria clause 1.1 before the amendment of 23.9.2009, the counsel

submitted that the same provided that the Medical College should be

recognized by the MCI for running the MBBS/PG Diploma/PG

Degree/Higher Specialty Courses, thus demonstrating that even for

applying for additional intake in a post graduate course, recognition

of the post graduate course was a condition precedent and now by

the way of the said amendment an exception has been carved out for

the post graduate courses whereas for the MBBS course the condition

of recognition by the MCI remains the same.

27. Referring to MCI, Establishment of Medical College

Regulations 1999, clause 8(3), the counsel submitted that the term

"formal recognition" read along with the "Qualification Criteria"

referred to hereinabove and the provisions of Section 10A culminates

into the fact that no increase can be permitted where the college

has not been granted recognition under Section 11(2) of the Indian

Medical College Act 1956.

28. Referring to the judgment of the Apex Court in the case of

MCI Vs. State of Karnataka & Ors., 1998 (6) SCC 131, the counsel

submitted that the regulations framed pursuant to the Act by the

MCI have a statutory force. Referring to the decision of the Apex

Court in the case of MCI Vs. Rajiv Gandhi University of Health

Sciences and Ors., 2004 (6) SCC 76, the counsel submitted that the

process of permission granted under 10A, the annual renewal and

then a formal recognition and then an additional intake has been

taken into consideration by the Hon‟ble Supreme Court and has been

granted sanction by the Hon‟ble Court. Further referring to the

decision of the Hon‟ble Supreme Court in the case of A.P. Christians

Medical Educational Society Vs. Govt. of Andhra Pradesh & Anr., 1986

(2) SCC 667, the counsel sought to answer the contention of the

petitioner wherein he had argued that this court has jurisdiction to

issue directions on its own without remanding the matter back to the

MCI, the counsel submitted that the said practice has been

deprecated by the Hon‟ble in the said judgment. Further referring to

the judgment of the Apex Court in the case of UOI Vs. Era

Educational Trust and Anr., (2000) 5 SCC 57 the counsel submitted

that the Supreme Court has deprecated the practice of the High

Court in granting the permission to the colleges straightway but has

held that in such like cases the matter should be remitted back to the

MCI for reconsideration. The counsel further referred to the

judgment of the Apex Court in the case of K.S. Bhoir Vs. State of

Maharashtra and Ors., 2001 (10) SCC 264 that the Supreme Court

has given importance to the maintenance of standards of Medical

Education in the country and has held the Regulations to be

mandatory which provide for the eligibility criteria to be complied

with for making an application for additional intake in the admission

capacity of a college.

29. Referring to the decision of the Hon‟ble Supreme Court in

Balco Employees Union Vs. UOI 2002 (2) SCC 333 , the counsel

submitted that this court in the scope of judicial review will not

embark upon the enquiry of whether a public policy is wise, better or

whether a different policy would be fairer, wiser, scientific or more

logical. The counsel also referred to the judgment of the Apex Court

in Yash Ahuja Vs. MCI, 2009 (10) SCC 313, wherein instead of

impugned letters like the present case, a press note was issued by

the MCI and the Apex Court held that the press release cannot be

interpreted as precluding the MCI from canvassing the correct import

of the provisions of the Act and it thus cannot preclude the court from

placing the correct interpretation of the Act and thus in the present

case also the fact that the MCI in its subsequent orders cited the

qualification criteria would not preclude this court or the MCI from

interpreting the correct import of the Act.

30. Further answering the argument of the counsel for the

petitioner that in the light of the judgment of the Hon‟ble Supreme

Court in the case of Mohinder Singh Gill (supra) that the reasons for

rejection or approval cannot be added by subsequent affidavits, the

counsel drew attention of this court to the judgment of the Apex Court

in the case of All India Railway Recruitment Board Vs. K. Shyam

Kumar, 2010 (6) SCC 614 and submitted that after referring to the

judgment of Mohinder Singh Gill, the Apex Court held that the same is

not applicable where larger public interest is involved and in such

situations additional grounds can be looked into to examine the

validity of an order. The counsel thus submitted that the judgment of

Mohinder Singh Gill (Supra ) would not create any bar for giving

additional grounds for the rejection of the application of additional

intake of the petitioner colleges.

31. Answering the argument of the counsel for the petitioner

that in case of Maulana Azad Medical College, New Delhi and Sikkim

Manipal Institute of Medical Sciences, Gangtok where as per the

petitioner, the permission for additional intake has been given by the

MCI, the counsel drew attention of this court to the judgment of this

court in the case of Tandan Kumar Vs. University of Delhi W.P.(C) No.

5329/2008 decided on 10.9.2008 wherein this court directing the

implementation of the provisions the Central Educational Institutions

(Reservation in Admission) Act, 2006 directed the increase of seats

from 180 to 200 in the case of Maulana Azad Medical College and

thus submitted that it is an entirely different case from that as

sought to be canvassed by the counsel for the petitioner. Referring to

the case of Sikkim Manipal Institute of Medial College wherein as per

the counsel for the petitioner, additional intake has been granted,

counsel for the respondent submitted that the said college is a

recognized college and thus the additional intake sought by the said

college is on entirely different footing than the one sought by the

petitioner college herein. Even otherwise, counsel submitted that in

the said case the application for additional intake had been rejected

by the MCI and thus there can be no analogy imported from the said

case by the petitioner in their favour.

32. Mr. Maninder Singh, Senior Advocate rebutting the

submissions of the counsel for respondent MCI submitted that the

expression "time to time" appearing in Explanation 2 to Section 10A

(1) means time to time before completion of five years of the course

that is the maximum number of students fixed by the Council before

recognition under Section 11(2) is achieved and after the recognition

under Section 11(2) is granted, there is no time to time fixation of

admission capacity.

33. The counsel further submitted that the interpretation of a

statutory provision is not dependent upon the past practice or the

understanding of either of the parties but is what is interpreted by the

court of law. Referring to the judgment of the Apex Court in the case

of Mridul Dhar (supra), the counsel submitted that in the said case,

the Supreme Court gave interpretation to a statute which had been

misunderstood and misinterpreted by the MCI since 1984 till 2005.

The counsel further submitted that the controversy involved in the

said matter was that the 15 % quota contribution from the colleges to

the All India Quota was interpreted by the MCI as from those colleges

only which have recognition under Section 11(2) but the Supreme

Court held that seats under Section 10A are also recognized seats and

there is no reason why they should not be contributed to the All India

Quota and hence interpreted the provision as treating the said seats

at par with the seats as recognized seats for the purposes of

admission and additional intake. The counsel further drew the

attention of this Court to the fact that the said judgment was further

clarified by the Apex Court in its subsequent order dated 12.7.2006

pursuant to which an amendment was carried out by the MCI in the

Medical Council of India Regulations on Graduate Medical Education,

1997 in clause 6(2) relating to migration wherein the MCI instead of

permitting migration from college recognized by the MCI replaced it

by the College recognized by the Central Government under Section

11(2) which amendment dates to 20.10.2008. The counsel drew

attention of this court to the "qualifying criteria" 3.1.1 and juxtaposed

it with the clause 6(2) and submitted that the amendment in clause

3.1.1 was brought on 23.9.2009 and had the intention of the

legislature been to inculcate the recognition under Section 11(2) in

the said qualifying criteria, it would have explicitly done so as done in

the case of the migration clause 6(2). The contention of the counsel

for the petitioner was that the MCI is fully conscious of its

Regulations and the language used in the clause 6(2) for migration

purposes and comparing it with the language for qualifying criteria in

clause 3.1.1. and the fact that the amendment being made subsequent

to the one made to clause 6(2), the petitioner does not need to

challenge the said Regulations for bringing to light the correct

interpretation before this Court.

34. The counsel further responding to the use of the word

"however" in the said qualifying criteria and the interpretation given

to it by counsel for the respondent submitted that the increase

referred to after the use of the said word "however" is the increase

relating to the post graduate courses which contemplate that a

college can apply for additional intake for its post graduate course at

the time of the fourth renewal of the MBBS Course and it has nothing

to do with the additional intake for the MBBS Course contemplated in

the said Regulation. The submission of counsel was that the

interpretation as sought to be carved out by respondent MCI is a

regressive interpretation of the said statute and there is a danger if

the said interpretation of the respondent MCI is accepted.

35. Counsel for the petitioner further commented upon the

judgment of K.S. Bhoir vs State of Maharashtra relied upon by learned

counsel for the respondent, and submitted that the said judgment

states that the Regulations framed under Section 10-A have a

mandatory force and the said position has not in any manner been

disputed by the petitioner. Further referring to the judgment of the

Apex Court in Govt. of A.P. vs Medwin Educational Society(supra),

the counsel submitted that the said case is not applicable to the facts

of the case at hand as in the said matter the „Essentiality Certificate‟

was not granted which is not the case in the present matter. Counsel

has further distinguished the judgment in the case of Balco Employees

Union vs UOI(supra) stating that there is no quarrel with the policy of

the MCI but by the interpretation as carved out of the said policy by

the MCI. The submission of the counsel for the petitioner was that the

interpretation of the Regulation as sought to be carved out by the MCI

is contrary to the policy of the Government of India.

36. Further distinguishing the judgment cited by the counsel for the

respondent in the case of Yash Ahuja vs MCI (Supra), the counsel

submitted that in the said case the Supreme Court interpreted the

Regulations in a manner which were contrary to the past practice of

the MCI and thus submitted that the past practice or the

understanding of any party is irrelevant for giving the correct

interpretation of any provision. Further, referring to the judgment in

the case of All India Railway Recruitment Board vs K. Shyam Kumar

(supra) relied upon by the counsel for the respondent to distinguish

the judgment cited by the petitioner in the case of Mohinder Singh

Gill (supra), the counsel submitted that in the said case of Shyam

Kumar the applicability of Mohinder Singh Gill was distinguished

because of availability of subsequent material in the form of CBI

Report whereas in the present case there is no subsequent material

and the qualifiction criteria relied upon by the counsel for the

respondent has been in existence since 2000 and is not any new or

subsequent material for which Mohinder Singh Gill (supra) would not

be applicable.

37. The argument of the counsel for the petitioner was that if the

interpretation and the rationale behind the policy as contended by the

respondent MCI is accepted, then the two cases as cited by him in the

case of Maulana Azad Medical College, New Delhi and the Sikkim

Manipal Institute of Medical Sciences could not have been granted

permission for additional intake in the subsequent years. The counsel

submitted that if the argument of the MCI is accepted that every

college has to justify the infrastructure and other requirements for

five years then the additional intake from 100 to 150 or more has also

to stand test of five years before any subsequent intake is allowed,

which interpretation is totally contrary to the policy of the

Government of India which aims at creating more seats and more

number of doctors in the country.

38. Responding to the arguments of Mr. Maninder Singh, Sr.

Advocate, Mr. Nidesh Gupta, Sr. Advocate appearing for respondent

MCI submitted that the manner in which the judgment in the case of

Mirdul Dhar (supra) has been interpreted by the petitioner is totally

perverse as in the said case the issue involved was totally different

and the observations which have been read by the petitioner during

the course of the arguments are in a totally different context then

what is being argued before this Court. Responding to the

interpretation of the word, however, appearing in the qualification

criteria the counsel submitted that this Court will interpret the said

regulation in a way to uphold its validity in the absence of challenge

to the said regulations. Responding to the argument of the counsel for

the petitioner in juxtaposing the amendment in clause 6(2) relating to

migration and the subsequent amendment in the "qualification

criteria", the counsel submitted that there were wholesale changes in

the migration clause and not only the changes which have been

mentioned by the counsel for the petitioner. On being specifically

posed the question by this Court as to why in the amendment to the

"qualification criteria", recognition by Central Government has not

been explicitly mentioned as has been mentioned in the said migration

clause, the counsel submitted that there is no doubt that the

amendment could have been better worded or drafted in a better

manner but the same would not go on to mean that a totally different

interpretation from what has been the intent of the legislature be

carved out by this Court. The counsel in the final arguments

submitted that the report of the assessors is not a final report and the

MCI is not bound by the same in making its final decision of approval

or rejection of an application by any institute or medical college.

Counsel also submitted that there can be no estoppel against a statute

and if at all for the mistake of any of the officials of the MCI, the rules

and regulations as reasons for rejection have not been mentioned in

the impugned order, the same would not go on to mean that the same

cannot be put forth by the MCI during the course of arguments or by

subsequent communication. The counsel submitted that in the case of

Yash Ahuja (supra) as has been held by the Supreme Court that the

MCI was not bound by even a press release issued by it, the same can

be construed to mean that the MCI would not be bound by the

impugned letters and can certainly go on to mention the rules and

regulations due to which the application of the petitioners has been

rejected subsequently.

39. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to the

pleas advanced by them.

40. The three petitioners/ medical institutions are before this

court to seek directions to direct the respondent Medical Council of

India to grant additional intake of the seats in their respective

institutes in terms of Section 10A of the Indian Medical Council Act,

1956. All these petitioners have claimed that their request for

additional intake has been denied, not because they lack in

meeting all the laid down requirements in terms of the regulations

framed by the MCI with regard to the infrastructure, teaching

faculty, financial resources, etc., but because these institutes have

not yet reached the stage of awarding a recognized MBBS degree to

their students. It is also the case of the petitioner in WP(C) no.

4920/11, that the deficiencies which were pointed out by the

respondent MCI with regard to the said additional intake of 150 seats

already stands rectified and vide order dated 30.6.2011 permission

for the additional intake has been declined only because the

petitioner has not yet reached the stage of awarding MBBS degree

to its students of the first batch. In the case of petitioner in

W.P.(C) No. 5763/2011 ,it was not even informed that the said

additional intake has been denied because of the petitioner having

not reached the stage of awarding MBBS degree to their

students and it is only after filing of the counter affidavit that they

have come to know about the said reason of rejection.

41. Extensive arguments were advanced from both the sides.

Taking a resolute stand, primarily on the interpretation of the

provisions of Indian Medical Council Act and the regulations framed

thereunder, Mr. Maninder Singh, learned Senior Advocate assisted

by Mr. Gaurav Sharma, Mr. Neeraj Shekhar and Mr.Ashutosh

Thakur, Advocates addressed arguments in W.P.(C) No.5763/2011 &

W.P.(C) No. 5917/2011 while Mr. J.P. Sengh, learned Senior Advocate

assisted by Mr. Ranjan Pandey, Advocate canvassed arguments for

the petitioner in W.P.(C) No. 4920/2011. The Medical Council of

India, was represented by Mr. Nidesh Gupta, learned Senior

Advocate assisted by Mr. Amit Kumar and Mr. Ashish Kumar,

Advocates.

RELEVANT RULES & REGULATIONS

42. Before this court proceeds further in the matter, it would be

appropriate to set down the relevant provisions of the Indian Medical

Council Act 1956 and the applicable regulations which are as under:

Section 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; or

(b) no medical college shall-

(i) open a new or higher course of study or training (Including a post- graduate 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 post-graduate course of study or training) except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

(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 it 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 a such fee as may be prescribed.

(3) On receipt of a scheme by the Council under sub-action (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 Government- may, after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person 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 (2).

(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2) 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 celled 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 post-graduate 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 its 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 of 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 of 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 person having the recognised medical qualifications;

(f) the requirement of manpower in the field of practice of medicine; and

(g) 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.

Section 10B - Non-recognition of medical qualifications in certain cases

(1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college shall be recognised medical qualification for the purpose of this Act.

(2) Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act.

Section 10C - Time for seeking permission for certain existing medical colleges, etc.

(1) If, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993 any person has established a medical college or any medical college has opened a new or higher course of study or training or increase the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of section 10A.

(2) If any person or medical college, as the case may be, fails to seek the permission under sub-section (1), the provisions of section 10B shall apply, so far as may be, as if, permission of the Central Government under section 10A has been refused.

Section 11 - Recognition of medical qualifications granted by Universities or medical institutions in India

(1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act.

(2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such

medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date.

Section 33-Power to make regulations The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for-

..............

(fa) the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of Section 10A;

MEDICAL COUNCIL OF INDIA

ESTABLISHMENT OF MEDICAL COLLEGE REGULATIONS, 1999

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.

MEDICAL COUNCIL OF INDIA

OPENING OF A NEW OR HIGHER COURSE OF STUDY OR TRAINING REGULATIONS, 2000

No.M.C.I.34 (41)2000-Med:- In exercise of the powers conferred by section 10A read with section 33 of the Indian Medical Council Act,1956 (102 of 1956), in super-session of the Establishment of new Medical Colleges, opening of higher courses of study and increase of admission capacity in medical colleges Regulations, 1993, in so far as it relates to application for permission of the Central Government for starting new or higher courses (including PG degree/diploma and higher specialities) in a medical college / institution and application for permission of the Central Government to increase the admission capacity in MBBS/Higher courses (including Diploma/ Degree/ Higher specialities) in the existing medical colleges/institutions, the Medical Council of India, with the previous sanction of the Central Government, hereby makes the following regulations, namely :-

(3) The permission for establishment of a new or higher course of study, etc.- No medical college shall,-

(a) open a new or higher course of study or training (including a post graduate

(b) 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

(b) increase admission capacity in any course of study or training (including a post-graduate course of study or training); except after

obtaining the previous permission of the Central Government by submitting Scheme annexed to these regulations.

3. QUALIFYING CRITERIA:

The medical college/institution shall qualify for opening a New or Higher Course of Study or training (including a post-graduate Course of Study or Training) in the medical colleges/institutions if the following conditions are fulfilled:

1. (1) The medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Post graduate course;

The above Clause has been substituted with the following in terms of Notification published on 23.09.2009 in the Gazette of India

―The Medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Postgraduate Course; however, the Medical College/Institute which is not yet recognized by the Medical Council of India for the award of MBBS Degree may apply for starting of a Postgraduate Course in pre- clinical and para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Community Medicine at the time of third renewal - i.e. along with the admission of fourth batch for the MBBS Course‖;

43. Section 10A was introduced in the Indian Medical Council

Act through an amendment by the Indian Medical Council

(Amendment)Act, 1993 w.e.f. 27.8.1992. Along with the introduction

of Section 10A, clauses (fa), (fb) and (fc) were also inserted in Section

33 of the Act to empower the MCI to make regulations to carry out

the purposes of the Act and such regulations to provide the form of

scheme, the particulars to be given in such scheme, the manner in

which the scheme is to be preferred and the fee payable with the

scheme under clause (b) of sub-section (2) of Section 10A of the Act.

Prior to the introduction of Section 10A in the Act, there was no

provision for any prior permission from the Central Government for

the establishment of a new medical college and any medical college or

institution desirous of getting medical qualification granted by it to

be recognized was to apply to the Central Government and the

Central Government on the receipt of recommendation of the MCI

used to issue notification under Section 11(2) for granting recognition

to the medical college/institution and such medical colleges were

thereafter included in the First Schedule of the Act. In K.S. Bhoir

Vs. State of Maharashtra (2001) 10 SCC 264 , the Hon‟ble Apex

Court while examining the exact import of Section 10A of the Indian

Medical Council Act and the Regulations framed under Section 33 of

the Act was of the view that the object of inserting Section 10A,10B

and 10C was for specific purpose of controlling the unchecked and

unregulated mushroom growth of medical colleges which without the

requisite infrastructure were resulting in decline in the maintenance

of higher standards of medical education. The Apex Court also

observed that it has been experienced that unless there is a required

infrastructure available in the medical college, the standard of

medical education declines and until and unless an institution can

provide complete facility for training to each student admitted to its

various disciplines, the medical education will remain incomplete

and the medical college would be turning out half baked doctors

which in turn would adversely affect the health of the public in

general. The Apex Court further observed that by every increase in

the admission capacity, either one time or permanent, the Council is

obliged to ensure the proportionate increase of infrastructure

facilities. The Apex Court also observed that sub-section 1 of

Section 10A begins with non- obstante clause "notwithstanding

anything contained in the Act" which would clearly imply that there is

prohibition in the matter of an increase in the admission capacity in a

medical college, unless previous permission of the Central

Government is obtained in accordance with the recommendations of

the Medical Council of India. It would be thus seen that without the

previous permission of the Central Government, which after the

Notification dated 4th September, 2010 is now the Board of Governors

in supersession of the Medical Council of India, no medical college

can establish a medical college or open a higher or new course of

study or training in post graduate course of study or training which

would enable a student for the award of any recognized medical

qualification. Under Explanation 2 of Section 10A(1) the "admission

capacity" in relation to any course of study or training (including a

post graduate 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 in such course or training.

Under sub section 2(a) of Section 10 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. Explanation 2 of Section 10A (1) and sub Section

2(a) of Section 10A clearly postulate that the admission capacity is

not the one sought for or applied by the medical college but the one

determined by the Council from time to time and such admission

capacity for which the permission is sought by the college will be

determined by the Council after such a college submits a scheme in

accordance with the provisions of clause 2(b) whereafter the Central

Govt. refers the same to the Council for its recommendations. The

scheme which has been referred to in sub-section 2(a) of Section 10A

of the Indian Medical Council Act is required to be submitted by the

medical college in accordance with the regulations framed by the

MCI.

44. The MCI with the previous sanction of the Central Govt.

also made regulations known as "The opening of a New or Higher

Course of Study or Training (including Post-graduate Course of Study

or Training) and Increase of Admission Capacity in any Course of

Study or Training (including a Post-graduate Course of Study or

Training) Regulations, 2000" in exercise of the powers conferred

under Section 10A read with Section 33 of the IMC Act, 1956. These

very regulations not only deal with opening of a new or higher

course of study or training (post graduate course of study or

training) by any medical college but at the same time deals with the

increase of admission capacity in any such course of study or

training (including post graduate course of study or training) in such

medical colleges. So far the substantive provision dealing with the

increase in the admission capacity is concerned, the same is

envisaged in sub section (ii) of Section 10A(1) (b) of the Act where

opening of a new or higher course of study with the maximum

numbers to be fixed in relation to any course, study or training or

the increase of admission capacity of such a college in any course

of study or training is concerned, both have to be with the prior

permission of the Central Government which is now the Board of

Governors in supersession of the Medical Council of India and for

both, such medical college has to mandatorily follow the regulations

as framed by the MCI in exercise of its powers under Section 33 read

with Section 10A of the IMC Act 1956. Since in the present case, this

court is not concerned with the question of establishment of any new

medical college, therefore it would carry on further discussion

which concerns the question of eligibility of an established

medical college to seek increase in its admission capacity while it

still has not reached the stage of completing five years

undergraduate course for the award of an MBBS degree. All the

three petitioners are seeking increase in their existing strength but

their common plea is that they are legally entitled for such increase

without having reached the stage of awarding of MBBS degree to the

first batch. The case of the petitioner institute in W.P.(C)

No.5763/2011 is rather a step ahead who has taken a stand that in

fact they are not even asking for any increase as they had initially

applied for 150 seats but then later themselves had opted for less

number of seats i.e. 100, and therefore for all practical purposes the

increase in strength now sought by the petitioner is as per their

original request. This petitioner institute has also taken a plea that

the request for additional intake on the said ground of it being not

qualified for the same due to the non awarding of MBBS degree as

yet has been urged by the respondent only before this court and as

per the judgment of Apex Court in the case of Mohinder Singh Gill

vs. The Chief Election Commissioner (1978) 1 SCC 495 the

grounds or reasons for rejection must appear from the order itself

and not through the affidavit supplied in Court. Since the rejection by

the MCI in all the three cases is on the common ground i.e. all

these petitioners have not yet reached the stage of awarding MBBS

degree to their first batch, to qualify and apply for increase of

additional intake, therefore, this court will proceed in all the three

cases to test the merit of the arguments advanced by both the

parties on the eligibility or ineligibility of these petitioners for the

grant of additional intake and therefore the reasons given by the

respondent MCI even before this court through their counter

affidavit will be taken into consideration.

45. Claiming the legal right for the increase of the seats,

counsel representing the petitioner in WP(C) No.5917/2011 took a

stand that in fact the petitioners are not asking for any additional

increase in the seats as for the same number of seats they had

originally applied for and were not granted approval for the number

of seats applied by them. So far the petitioner in WP(C) No. 5763/11

is concerned, it made a request on its own for less number of seats

even though its infrastructure was in place for the seats applied by it.

46. In the alternative, another argument which was canvassed

before this Court by the petitioners is that there is no prohibition

under any of the provisions of Indian Medical Council Act, 1956 that

any applicant college which is still within the purview of Section 10A

of the Act and has not yet reached the stage of Section 11(2) of the

Act for formal recognition can be prohibited from seeking an increase

in the admission capacity. It is also the case of these petitioners that

even the regulations made by the MCI under Section 10A read with

Section 33 of the Act do not create any prohibition against these

colleges for seeking increase in its admission capacity before they are

granted recognition by the Central Government under Section 11(2)

of the Act.

47. It is also the case of the petitioners that wherever the

recognition by the Central Government under Section 11(2) of the Act

was to be stipulated, the same has been so stipulated in the MCI

regulations. To fortify this argument, counsel for the petitioners

referred to the amendment introduced by the respondent MCI in

Clause 6(2) of the Regulations of Graduate Medical Education, 1997

on 20.10.2008 (vide notification No.MCI-34(41)/2008-Med-29527)

wherein the requisition by Central Government has been specifically

mentioned as opposed to recognition by the MCI while in the

amendment introduced by the respondent MCI on 23.9.2009

amending clause 3 (1).1 of the "Qualifying Criteria" in Regulations of

2000 where the term „Medical Council of India‟ was not substituted

by the term „Central Government‟. Counsel also argued that if both

the provisions are taken into consideration in juxtaposition, then the

intendment of the framers of the regulations would be amply clear

that they never intended to introduce the recognition to come through

the Central Government in terms of Section 11(2) of the IMC Act.

Counsel for the petitioners has also taken a stand that they are not

challenging either the provisions of the Act or any of the regulations

but asserting their right, considering these regulations and the

provisions of the Act as they exist and the same being intra vires and

not ultra vires to the substantive provisions of the Act and the scheme

framed therein.

48. In contraposition, the respondent MCI has taken a stand

that none of the petitioners qualify the laid down criteria to seek

increase in their admission capacity as none of these petitioners

have been recognized by the Medical Council of India for running

MBBS course. It is the case of the respondent that the petitioner

institutes are not eligible to seek increase in their admission capacity

of MBBS course without meeting the qualifying criteria laid down

under the scheme i.e. part II of the Regulations, 2000 which imposes a

pre-condition of recognition by the MCI for running MBBS course.

The respondent thus submitted that the college which has not yet

reached the stage of awarding MBBS degree will not be eligible to

apply for the increase of its admission capacity. The respondent also

referred to regulation 8 of the Medical Council of India, Establishment

of Medical College Regulations, 1999, to strengthen his stand as it

clearly states that the process of renewal of permission in a medical

college will continue till such time the establishment of medical

college and expansion of medical hospital facilities are completed and

a „formal recognition‟ to the medical college is granted. The

contention raised by the counsel for the respondent was that any

hospital or college will reach the stage of formal recognition only after

the grant of yearly renewals, subject to verification of the

achievements of the annual targets by the college and when it reaches

the stage of awarding MBBS degree to its students and then only such

a college will become eligible for the grant of formal recognition.

49. Counsel for the respondent laid strong emphasis on the

argument that the petitioners have not challenged the applicable

regulations and in the absence of any challenge to such regulations,

this Court will not dwell to test the validity of these regulations or to

strike down the same in the absence of any such challenge. Counsel

also took a stand that the language used in the regulations is simple,

plain, clear and unambiguous and, therefore, any of such plain

expression used in these regulations cannot be "read down" just to

suit the interpretation being advanced by the petitioners. It is also

the case of the respondent that these regulations of 2000 have stood

the test of time and never before they have been interpreted in a

manner contrary to what has been canvassed by the MCI and there

is no single instance placed on record by the petitioners that any of

the institutes were ever granted additional intake in violation of the

regulations without reaching the stage of award of the MBBS degree.

The contention raised by the counsel for the respondent was that the

fact of these regulations being successfully in operation for over a

decade itself establishes the soundness and validity of these

regulations. Counsel also argued that these regulations are founded

on salutary principles and even if this Court finds that a better policy

can substitute the existing policy then the same by itself would not be

a ground for interference by this Hon‟ble Court as the Court cannot

strike down a policy decision taken by the Government merely

because it feels that another policy would be fairer or wiser or more

scientific or logical.

CONTROVERSY

50. There is no dispute with the fact that the petitioners have

not challenged any of the provisions of the regulations and have

proceeded with their case taking these regulations and the scheme of

the Act as the same exists but advancing an interpretation different

from the MCI. In such a scenario there would be no hurdle in

dismissing these petitions in case this Court finds that the petitioners

cannot succeed in the present petitions in the absence of the

challenge made by them to the applicable regulations. However, the

crucial question before this Court would be whether the petitioners

can succeed in these writ petitions without posing any challenge to

the said regulations and yet satisfying this Court that they are

entitled for the grant of increase in seats without reaching the stage

of awarding MBBS degree. To test this legal proposition, let me again

revert back to the relevant provisions of the MCI Act and the

applicable regulations, which as per the counsel for the respondent

create a road block for these petitioners to even apply for increase in

their admission capacity.

BLUEPRINT OF IMPLEMENTAION: THE SCHEME

51. It is not in dispute between the parties that whether for opening

of a new or higher course of study by any medical college or for

increase in its admission capacity in such a course, the permission of

the Central Government (The Board of Governors in suppression of

the MCI) is required to be obtained. It is also not in dispute between

the parties that the admission capacity of an applicant college will be

determined by the MCI after the MCI finds that whether such a

college fulfills the laid down criteria of meeting the requisite

infrastructure, faculty, financial resources, etc. in terms of the

regulations in conformity with the scheme submitted by the

petitioner. Sub-Section 4 of Section 10A empowers the Central

Government to either approve the scheme with such conditions, if

any, which it may consider necessary, or disapprove the scheme

under sub Section 7 of Section 10A. The Medical Council of India

while making its recommendation under Clause (b) of Sub Section 3

of Section 10A and the Central Government while passing an order

by approving or disapproving the scheme under sub Section 4 of

Section 10A shall have due regard to the factors mentioned in clauses

(a) to (g) of Sub-Section 7 of Section 10A which directs these

authorities to examine whether the proposed medical college is in a

position to offer the minimum standards of medical education and

adequate financial resources to open a new or higher courses of

study or to increase its admission capacity; whether it has necessary

facilities in respect of staff equipment, accommodation, training and

other facilities to ensure proper functioning of the medical college or

for accommodating the increased admission capacity to be provided

within time specified in the scheme; whether the proposed medical

college or existing medical college has adequate hospital facilities

having regard to the number of students likely to attend such medical

college or course of study or whether any arrangement has been

made or programme drawn to impart proper training to students by

the persons having recognized medical qualifications; the

requirement of manpower in the field of practice of medicine and any

other factors as may be prescribed. Section 10B of the IMC Act deals

with non-recognition of the qualifications where an existing medical

college is established except with the previous permission of the

Central Government in accordance with the provisions of Section 10A

of the Act and similarly where a medical college opens a new or

higher course of study or training (including a post graduate course)

without seeking prior permission of the Central Government. Section

10C deals with those colleges which were established after 1 st June,

1992 and before the commencement of Indian Medical Council

(Amendment) Act, 1993 to seek permission of the Central

Government in accordance with the provisions of Section 10A within

a period of one year from the date of the commencement of the

Indian Medical Council Amendment Act, 1993. Section 11 of the Act

deals with recognition of the medical qualification granted by

Universities or medical institution in India. It is pertinent to mention

here that Section 11 nowhere deals with the increase of seats or even

talks about any refusal of increase of seats till the medical

qualification granted by any University or till medical institution is

included in the First Schedule of the Act. It would be thus quite

evident that increase of seats so far Indian Medical Council Act, 1956

is concerned, the same is dealt only under Section 10A(1)(b)(ii) of

the Act.

52. So far the establishment of a New medical college or New

or higher course of study or training (including post graduate course

or study or training) is concerned, Section 10A, 10B and 10C along

with the regulations framed by the MCI under Section 33 (fa) holds

the field. The Apex Court in the case of K.S. Bhoir (supra) has

eloquently dealt with the entire scheme of the Act specially after the

insertion of 10A, 10B and 10C in the same. It would be useful to

reproduce the following relevant paras from the said judgment:-

"Coming to the first question, since long time past, establishing of a medical college and medical education therein are governed by the Indian Medical Council Act, 1956 (hereinafter referred to as the Act) and Dentist Act, 1948. Despite there being such provisions, it was experienced that large number of persons and institutions established medical colleges without providing therein the minimum necessary and proportionate infrastructure i.e. teaching and other facilities required for them. As a result it was found that there was sharp decline in the maintenance of higher standard of medical education. In order to put check on unregulated mushroom growth of medical colleges and maintain high standard of medical education, it was thought to bring more stringent provisions in the Act. With the aforesaid view of the matter, in the year 1993, Section 10A 10B and 10C were inserted in the Medical Council Act by amending Act 31/93. Similarly, the provisions of Sections 10A 10B and 10Cwere also incorporated in the Dentists Act, 1948. Sub-section (1) of Section 10A of the Act provides that no person shall establish a medical college or no medical college shall open a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of the Act. Sub- section (2) thereof provides that every person or medical college desirous of opening a medical college or increase its admission capacity in any course of study or training, including a post graduate course of study or training shall submit to the Central Government a scheme prepared in accordance with the provisions of the Act and the Central government shall refer the said scheme to the Medical Council for its recommendation. Sub- section (3) of Section10A further provides that on receipt of such a scheme by the Council, it may obtain such other particulars, as may be considered necessary and consider the said scheme having regard to the factor referred to in Sub-section (7) of Section 10-A of the Act and send its recommendations to the Central Government. Under sub-section (4) of Section 10A, the Central Government, on receipt of the recommendation of the Medical Council is empowered to either approve or disapprove the scheme. It may grant or refuse permission to open a medical college or increase its admission capacity. If it is found that the scheme is not in conformity with the provisions of the Act and regulations framed thereunder, it may refuse to accord permission to increase the admission

capacity in any course of study or training. Section 33 of the Act empowers the Medical Council to make regulations for carrying out the purposes of the Act. The Medical Council in exercise of power conferred by Section 33 read with Section10A of the Act has framed regulation known as 'Establishment of New Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulation, 1993' (hereinafter referred to as the 'regulations'). The said regulation provides for eligibility criteria to be complied with even for making an application and part of the said regulations deal with the requirements to be complied with when any medical college applies for increase in admission capacity in the college. A perusal of the provisions of Section 10A read with regulations shows that it is mandatory on the part of the institution or management desirous of increasing its admission capacity in any course of study to submit a scheme complying with the provisions of Sub-section (7) of Section10A and the requirements envisages under the regulations. If any of the infrastructure facilities, as required either under Sub-section (7) or under the regulations are absent, it is open to the Central Government to refuse permission for increase in the admission capacity in any course of study in a medical college. The object of compliance of requirements mentioned college in Sub-section (7) of Section 10A and the regulation is to ensure the maintenance of highest standard of education. In Medical Council of India v. State of Karnataka and Ors. - 1998 (6) 131 and Preeti Srivastava and Anr. etc. v. State of Madhya Pradesh and Ors. etc. : AIR1999SC2894, it was held that the regulations framed by the Medical Council under Section 33 of the Act are mandatory. In Medical Council of India v. State of Karnataka (supra), while dealing with the admission made in excess of intake capacity fixed by the Council, this Court observed thus:

"...A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study..."

9. The compliance of the requirements under the Act and the regulations being mandatory, in the absence of its compliance, no permission can be granted by the Central Government for increase in admission capacity in any course in any medical college. In the present case, the State Government sought one time increase in admission capacity in various medical colleges on the premise that medical colleges possed all the facilities. This was not sufficient. What was required, was that medical colleges desirous of one time increase in admission capacity should have submitted a scheme prepared in accordance with the Act and the

regulation to the Central Government. No such scheme was submitted to the Central Government and medical council has no occasion to verify the sufficiency of the facilities and other requirements. There being no compliance of requirements under the Act, the Central Government was justified in refusing the permission for one time increase in the admission capacity in the medical colleges. We do not, therefore, find any infirmity in the order of the Central Government when it refused to grant permission to the State Government to have one time increase in admission capacity in Medicine and Dentistry in various medical colleges located in the State of Maharashtra.

10. It was then urged by the learned counsel appearing for the appellants that the provisions of Section 10A do not prohibit the possibility of one time enhancement of intake capacity for admission to medical colleges and, thus, permission ought to have been granted by the Central government for such a one time enhancement or creation of additional number of seats beyond 150 in view of extraordinary situation and the refusal on the part of the Central Government to grant such permission was erroneous. It was also argued that Sub-sections (1) to (5) of Section 10A being merely procedural, Sub-section (7) of Section 10A providing for factors to be taken into consideration for an increase in the admission capacity in a medical college ha an overriding effect on the procedural provisions of Sub-section (1) to (5)and, therefore, the Central Government committed an error in refusing to permit one time increase in admission capacity in Medicine and Dentistry courses in the medical colleges. We do not find any merit in the submission. Sub-section (1) of Section 10A is a substantive provision in itself and begins with non-obstante clause "notwithstanding anything contained in the Act.." it means there is a prohibition in the matter of an increase in the admission capacity in a medical college unless previous permission of the Central Government is obtained in accordance with the recommendation of the Medical Council of India. The entire scheme of Section 10A of the Act has to be read in consonance with other sub-section to further the object behind the amending Act. The object being to achieve highest standard of medical education. The said objective can be achieved only by ensuring that a medical college has the requisite infrastructure to impart medical education. As noticed earlier, the object of amending Sections 10A 10B and 10C was for a specific purpose of controlling and restricting the unchecked and unregulated mushroomed growth of medical colleges without requisite infrastructure resulting in decline in the maintenance of highest standard of education. The highest standard of medical education is only possible when the requirement of provisions of Section 10A and the regulations are complied with. It has been experienced that unless there is required infrastructure available in the medical college, the standard of medical education has declined. Unless an institution can provide complete and full facilities for training to each student who is admitted in various discipline, the medical education would remain incomplete and the medical college would be turning out half-baked

doctors which, in turn, would adversely affect the health of public in general. Thus, for every increase in the admission capacity either it is one time or permanent, the Council is obliged to ensure a proportionate increase of infrastructure facilities. The Medical Council can only make recommendations to the Central Government for grant of permission for one time intake capacity in seats only when it is satisfied that scheme to be submitted by the medical colleges fulfils all the requirements. Unless such a scheme providing for all the requirements provided for in the Act and the regulations is submitted to the Central Government and the Medical Council is satisfied that the scheme complies with all the requirement and makes a recommendation to that effect, only then the Central government can consider for grant of permission for increase of admission capacity in a medical college. Similarly, the Central Government without compliance of the Act dn the regulations cannot grant, without recommendation of the Medical Council, any permission for one time increase in admission capacity in various courses conducted by the medical colleges. For the aforesaid reasons, we are of the view that the Central Government was fully justified when it rejected the request of the State Government for grant of permission for one time increase in the admission capacity in medicine and Dentistry courses in various medical colleges in the State of Maharashtra."

53. From the aforesaid observations of the Hon‟ble Supreme

Court, it would be quite explicit that it is mandatory on the part of

the institution or college desirous of increasing its admission capacity

in any course of study to submit a scheme complying with the

requirements laid down under sub Section 7 of Section 10A of the Act

and the requirements envisaged under the regulations. It is also quite

manifest that if any of the infrastructural facilities as required under

sub Section 7 of Section 10A and the applicable regulations are

absent, then it is open to the Central Government to refuse

permission for increase in the admission capacity in any course of

study in a medical college. Under Clause 8 of the Medical Council of

India, Establishment of Medical College Regulations 1999, it is the

Central Government which on the recommendation of the Medical

Council, may issue a Letter of Intent to the applicant to set up a new

medical college with such conditions and modifications of the original

proposal as may be considered necessary. This formal permission to

establish a medical college is granted initially for a period of one year

and then is renewed on yearly basis subject to verification of

achievements of annual targets by such an institute/college. Under

the said regulation, it is the responsibility of the person to apply to

the Medical Council of India for the purposes of renewal, six months

prior to the expiry of the initial permission and this process of

renewal of permission will continue till such time the establishment

of medical college and expansion of the hospital facilities are

completed and a formal recognition by the medical college is granted

54. It would be thus apparent that under the regulations,

renewal of permission is not automatic and it has been made

dependent yet again on the yearly inspections when the Council

assesses whether the institute/college has achieved the laid down

annual targets or not. From the entire scheme of the Act and the

regulations framed thereunder it is evident that every

college/institute has to strictly adhere to the norms laid down under

the regulations and non fulfillment of the same can result into

withdrawal of the recognition as envisaged under Section 19 of the

IMC Act. It is not the vested right of a medical college or an institute

which has been granted initial permission for running the medical

college to continue with the initial intake of students in the next year

as well, as under the scheme of the Act and regulations, the approval

for every year has been stipulated.

THE CORE QUESTION: ADDITIONAL INTAKE

55. It cannot be of any dispute that the admission capacity of a

medical college is determined by the Council and in terms of

Explanation 2 of Section 10A (1) of the Act, the maximum number of

students that may be fixed by the Council from time to time may vary.

For instance, an institute under sub-Section 2(a) of Section 10A may

submit a scheme for seeking admission of 150 students in the MBBS

course but may or may not be found by the Council to be capable of

admitting the applied number of students after looking into its

infrastructure, teaching faculty, financial recourses and other norms

laid under regulations. Then, the question that arises is that:

"Would such an institute which was granted initial intake of lesser number of students than the maximum limit permissible as applied by such an institute or even if not applied for the maximum number, can be deprived for the additional increase in second year or in the subsequent years till it reaches the stage of awarding the MBBS degree?"

56. As per the stand taken by the respondent/MCI, till such

college/institute reaches the stage of awarding an MBBS degree, it is

disqualified to apply for such an additional increase and in

contradiction to the same, the stand of the petitioners is that under

the Act and the regulations framed thereunder, they have a

legitimate right to ask for such additional increase even prior to the

reaching of the stage of award of the MBBS degree. As per the

respondent, the mandate of Clause 3(1).1 of Opening of New or

Higher course of Study or Training (included Post Graduate course of

Study or Training) and Increase of Admission Capacity in any Course

of Study or training (including a Post Graduate Course of Study or

Training) Regulations, 2000" the medical college/institution shall

qualify to apply for seeking increase in the number of admissions only

after such medical college/institution is recognized by the Central

Government for the award of MBBS degree in terms of Section 11(2)

of the Act. Counsel for the respondent also explained that these

regulations were founded on salutary public policy as after having

experienced that on number of occasions medical colleges were not

fulfilling the yearly requirements laid down under the regulations for

the grant of yearly renewals, thus jeopardizing the careers of the

students, therefore arose the requirement of such a stringent

measure not to grant any additional increase to any medical college

unless such a medical college is recognized for awarding the MBBS

degree. Counsel also submitted that the reason for such a bar is that

by that stage the institute reaches a stage of showing its credentials

for imparting education for a prestigious course like the MBBS.

The entire reasoning of the counsel for the respondent primarily was

based on the said clause 3(1).1 of 2000 Regulations and to some

extent on clause 8 of the 1999 Regulations. Otherwise on a plain

reading, this concept of recognition nowhere can be seen to be

referred under Section 10A, 10B, 10C of the Medical Council Act so

far the issue of increase or additional intake is concerned.

THE REGULTORY DESCENDENT: BOARD OF GOVERNORS

57. Here it would also be important to refer to the Indian Medical

Council (Amendment) Act, 2010 which came into force on 15 th day of

May, 2010 and through this amendment Sections 3A, 3B and 3C were

inserted in the main Act. With the said amendment, the erstwhile

Medical Council stood superseded and the same was reconstituted

and in its place Board of Governors in supersession of the Medical

Council of India were given powers to perform the functions of the

Council under the Act. It would be relevant to reproduce Sections 3A,

3B and 3C of the amended Act as under:-

2. After section 3 of the Indian Medical Council Act, 1956 (hereinafter referred to as the principal Act), the following sections shall be inserted, namely:-

3A. (1) On and from the date of commencement of the Indian Medical Council (Amendment) Act, 2010, the Council shall stand superseded and the President, Vice-President and other member of the Council shall vacate their offices and shall have no claim for any compensation, whatsoever.

(2) The Council shall be reconstituted in accordance with the provisions of section 3 within a period of one year from the date of supersession of the Council under sub-section(1). (3) Upon the supersession of the Council under sub-section(1) and until a new Council is constituted in accordance with section 3, the Board of Governors constituted under sub-section(4) shall exercise the powers and perform the functions of the Council under this Act.

(4) The Central Government shall, by notification in the Official Gazette, constitute the Board of Governors which shall consist of not more than seven persons as its members, who shall be persons of eminence and of unimpeachable integrity in the fields of medicine and medical education, and who may be either nominated members or members, ex officio, to be appointed by the Central Government, one of whom shall be named by the Central Government as the Chairperson of the Board of Governors.

(5) The Chairperson shall and the other members, other than the members, ex officio, shall be entitled to such sitting fee and travelling and other allowances as may be determined by the Central Government.

(6) The Board of Governors shall meet at such time and places and shall observe such rules of procedure in regard to the transaction of business at its meetings as is applicable to the Council.

(7) Two-third of the members of the Board of Governors shall constitute the quorum for its meetings.

(8) No act or proceedings of the Board of Governors shall be invalid merely by reason of--

(a) any vacancy in, or any defect in the constitution of, the Board of Governors; or

(b) any irregularity in the procedure of the Board of Governors not affecting the merits of the case.

(9) A member having any financial or other interest in any matter coming before the Board of Governors for decision shall disclose his interest in the matter before he may, if allowed by the Board of Governors, participate in such proceedings.

(10) The Chairperson and the other members of the Board of Governors shall hold office during the pleasure of the Central Government..

3B. During the period when the Council stands superseded--

(a) the provisions of this Act shall be construed as if for the word ―Council‖, the words ―Board of Governors‖ were substituted;

             (b)      the Board of Governors shall--
             (i)        exercise the powers and discharge the functions of the

Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that reference therein to the Council shall be construed as references to the Board of Governors;

(ii) grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and

(iii) dispose of the matters pending with the Central Government under section 10A upon receipt of the same from it.

3C. (1)Without prejudice to the provisions of this Act, the Board of Governors or the Council after its reconstitution shall, in exercise of its powers and in the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time: Provided that the Board of Governors or the Council after its reconstitution shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub- section.

(2) The decision of the Central Government whether a question is a matter of policy or not shall be final.

58. As would be seen from Section 3B of the amended Act,

now it is Board of Governors in supersession of the Medical Council

of India which has been empowered to independently grant

permission for establishment of a new medical college or opening of a

new or higher course of study or training or even to increase

admission capacity in any course of study or training referred to in

Section 10A without prior permission of the Central Government

under that section. With this amendment, the prior permission of the

Central Government as stated in Section 10A of the Act would stand

substituted with such a permission from the Board of Governors in

supersession of the Medical Council of India. The said amendment,

therefore has also brought a drastic change in the scheme of the Act

and the regulations framed thereunder as for opening a new medical

college or opening of new or higher course or even for an increase,

the Board of Governors in supersession of the Medical Council of

India has the competence to take a decision without even seeking

prior permission of the Central Government. However, so far

recognition of any college or institute for the award of the MBBS

degree is concerned, the matter still rests with the Central

Government as there is no such dilution of power of Central

Government and the same continues to vests with the Central

Government. The Board of Governors in supersession of the Medical

Council of India is not dependent upon the Central Government so far

its authority to grant initial approval or the yearly approvals or even

the increase in the admission capacity of a college is concerned, but

certainly when the question of award of MBBS degree of a medical

institute or college is concerned, the power only lies with the Central

Government and not with the Board of Governors in supersession of

the Medical Council of India. There is therefore a stark difference

between the two stages. There is a stage when the Board of

Governors in supersession of the Medical Council of India have been

assigned the role under the scheme of the Act and the Regulations

framed thereunder and the other stage when the power only vests

with the Central Government. Undeniably, when any institute or

college reaches the stage of awarding the MBBS degree and it is then

such an institute can be granted recognition under Section 11(2) of

the IMC Act. To grant approval to establish a medical college and

then to grant yearly approvals till before institute/college reaches the

stage of finally awarding MBBS degree, can it be said that such an

institute or medical college so far has not been recognized by the

Board of Governors in supersession of the Medical Council of India.

THE ESOTERIC : "RECOGNITION"

59. This Court found merit in the submission of Mr. Maninder

Singh, Sr. Advocate representing the petitioners that Section 10A

seats are also required to be treated as duly recognized MBBS seats

as otherwise if in midst of the said MBBS degree course if any college

closes down and has to transfer its students to other approved

medical colleges, can it be said that the course undergone by these

students from the previous college was not recognized by the MCI. It

is undeniable fact that that private medical colleges also contribute

15% seats in the All India quota and receive students on the basis of

the merit of the candidates as per their rank in the common entrance

test and, therefore, also by no stretch of imagination the students

undergoing courses in these approved private medical colleges by the

MCI can be said to be considered as not undergoing such course

duly recognized by the MCI. The yearly approvals by the MCI and

final recognition by the Central Government as referred to under the

Act and the regulations framed thereunder have to be understood

thus in a different context. The grant of approval/permission by the

MCI, now the Board of Governors in supersession of the Medical

Council of India, to any medical college and then grant of yearly

approvals on such college fulfilling all the laid down parameters

under the Regulations are also in the nature of recognition granted

by the MCI and formal recognition or to say final recognition will

finally come when the Central Government finds that such an

institute has reached the stage of awarding MBBS degree to its

students. It would be thus apparent that this final recognition by the

Central Government, looking into the entire scheme of the Act and

Regulations framed thereunder, cannot be linked with the yearly

approvals granted by the Board of Governors in supersession of the

Medical Council of India. Conscious of this fact, the framers of the

Regulations under 2000 Regulations Part II, Clause 3(1).1 also

referred to such a recognition by the Medical Council of India for

running MBBS/PG diploma specialty courses. The use of expression

"running" in the amended as well as unamended clause 3.1.1 of the

said regulations is not without any significance. Manifestly in the

amended and unamended clause 3.1.1 the same recognition has been

linked with the Medical Council of India and not with the Central

Government of India. For better appreciation and for the sake of

repetition the unamended and amended clause 3.1.1 of the said

Regulations are reproduced as under:-

3. QUALIFYING CRITERIA:

The medical college/institution shall qualify for opening a New or Higher Course of Study or training (including a post-graduate Course of Study or Training) in the medical colleges/institutions if the following conditions are fulfilled:

1. (1) The medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Post graduate course;

The above Clause has been substituted with the following in terms of Notification published on 23.09.2009 in the Gazette of India

―The Medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Postgraduate Course; however, the Medical College/Institute which is not yet recognized by the Medical Council of India for the award of MBBS Degree may apply for starting of a Postgraduate Course in pre-clinical and para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Community Medicine at the time of third renewal - i.e. along with the admission of fourth batch for the MBBS Course‖;

THE POLEMIC: INTERPRETATION

60. I also found merit in the submission of the counsel for the

petitioner that in the regulations dealing with the migration 6(2), the

framers could substitute „Medical Council‟ by „Central Government‟

while referring to the necessity of both the colleges being duly

recognized under 11(2), then why while amending clause 3 (1).1 of

2000 Regulations, the Medical Council was not substituted by

Central Government. The relevant unamended and amended

migration rules are reproduced as under:-

6. Migration

(2) Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognised by the Medical Council of India.

The above clause 6 has been substituted in terms of notification published on 20.10.2008 in Gazette of India and the same is :

(2) Migration of students from one College to another is permissible only if both the colleges are recognised by the Central Government under section 11(2) of the Indian Medical Council Act, 1956 and further subject to the condition that it shall not result in increase in the sanctioned intake capacity for the academic year concerned in respect of the receiving medical college.

61. Lot of emphasis was laid by the counsel for the respondent

on the use of the word "however‟ in the amended clause 3.1.1,

which as per the counsel is in the nature of an exception to the

previous part. The contention raised by the counsel for the

respondent was that the subsequent sentence after using the said

word "however‟ makes it abundantly clear that the medical

college/institute, which is not yet recognized by the Medical Council

of India for the award of MBBS degree could not apply for increase of

intake in post graduate courses. Counsel also submitted that it is a

settled legal position that no such interpretation will be given by the

Court to a provision which rendered any part of the provision as

otiose. At the first blush, this Court found merit in the submission of

the counsel for the respondent but after having examined the entire

scheme of the Act and the Regulations framed thereunder, the said

argument of counsel for the respondent does not cut any ice.

Although this Court is not dealing with the issue of an institute

becoming eligible for increase of intake in a post graduate course,

but in any case of the matter the use of expression "Medical Council

of India" in the latter part again creates enough doubt to show that

the recognition referred herein as well, is the same recognition

which an institute or medical college is getting every year and then

reaching the final stage of award of the degree. Had the intention of

the framers of the regulations been, as expounded by the counsel for

the respondent, then the better expression to be used by the framers

would have been "Central Government of India" in place of "Medical

Council of India" and since the same being not the position,

therefore, the said argument advanced by the counsel for the

respondent cannot be appreciated.

62. Learned counsel for the respondent also raised the

contention that even under clause 8(3) of the MCI, Establishment of

Medical College Regulations, 1999 the intendment of the framers of

regulation is amply clear from the use of the word "formal

recognition" of the college i.e. recognition after such a college

reaches the stage of completing the process of renewal of

permissions. The contention of learned counsel for the respondent

was that a medical college is not entitled for any formal recognition

till it reaches the final stage after completing the targets of yearly

renewals and then only it will become entitled for a formal

recognition. The said Regulation 8(3), as already reproduced above,

envisages that the permission to establish a medical college and

admit students is granted initially for a period of one year and then

the same is renewed on yearly basis subject to the verification of

achieving annual targets by such a medical college. The said

regulation also mandates that it is the responsibility of a medical

college to apply to the MCI six months prior to the expiry of initial

permission to seek further renewal. It also further envisages that this

process of renewal of permission will continue till such time the

establishment of a medical college and hospital are completed by

such college and then such a college would reach the stage of

becoming entitled for a formal recognition.

63. The use of the expression „formal‟ gives strength to the

argument raised by learned counsel for the petitioner that a formal

recognition is what a medical college will be ultimately entitled for

after having reached the final stage of completing a MBBS course,

although such a medical college can be said to be already

„recognized‟ for running an MBBS course based on the „yearly

approvals/renewals‟ which can be construed as yearly recognitions.

Learned counsel for the respondent also did not refute the fact that

the medical college when reaches the stage of awarding an MBBS

degree becomes legally entitled to get recognition and that is why

this use of the expression „formal‟ is found in the aforesaid

regulation. Irrefutably, any medical college when reaches the stage

of awarding an MBBS degree becomes legally entitled for the grant

of recognition by the Central Government and then can find its place

in the First Schedule as envisaged under Section 11(2) of the IMC

Act. The expression „formal‟ in the said Regulation has been

consciously used by the framers of the regulations as the medical

college when reaches the stage of awarding an MBBS degree then

grant of recognition to such a medical college is a mere formality and

is in the nature of a ceremonial act. The word „recognition‟ used in

"Qualification Criteria" is herein in Regulation 8(3), being qualified

by the term „formal‟ thus leaves no shadow of doubt that the

recognition contemplated herein in Regulation 8(3) is by the Central

Government and when used alone, the term „recognition‟ is in the

nature of a Section 10A recognition and nothing else. Therefore, it is

crystal clear that the said „formal recognition‟ referred to above in

the regulation 8(3) has to come from the Central Government and not

from the Council and in view of the detailed discussion above, this

Court cannot subscribe to the plea taken by the respondent that the

petitioner would not be entitled for the additional increase in case

they have not yet reached the stage of grant of formal recognition.

The yearly renewals for which the authority lies with the Board of

Governors in Supersession of Medical Council of India, can be clearly

seen in the form of yearly recognitions as every such yearly

approval entitles a medical college to enter the next year till it

reaches the final stage of award of MBBS degree. Thus, it cannot be

said that these yearly approvals by the MCI are not in the nature of

recognition by the MCI as MCI certainly recongises such a medical

college for those particular years for which it has already granted

approvals. The said plea taken by the counsel for the respondent,

therefore, also deserves to be rejected.

64. Mr. J.P. Sengh, Sr. Advocate representing the petitioner in

WP(C) No. 4920/11 had also drawn attention of this Court to the

recent notification dated 9th December, 2009 issued by the Medical

Council of India through which the Medical Council of India has

raised the maximum number of seats in MBBS course from 150 to

250 and also fixing some new parameters for annual intake capacity

for 200 and 250 seats. For better appreciation the same is as under:-

MEDICAL COUNCIL OF INDIA NOTIFICATION New Delhi, the 9th December, 2009 ―3. In ―Part-II under the heading ―Scheme for permission of the Central Government to increase the admission capacity in any course of study or training (including Postgraduate Course of Study or Training) in the existing medical college/institutions,‖ Clause 6 shall be substituted as under:

―6. The maximum number of admissions in MBBS course shall not exceed 250 annually provided that the eligibility criteria for fixing the upper ceiling of annual intake to 200/250 admissions annually shall be as under :-

        A.      For Annual intake capacity of 200

       (i)    Number of teaching beds not less than 1250 with the standing of
       not less than 15 years.
       (ii)    OPD strength per day not less than 2000.
       (iii)   Bed occupancy average not less than 80%.
       (iv)    The hospital must be unitary.


       B.      For Annual intake capacity of 250

       (i)    Number of teaching beds not less than 1500 with the standing of
       not less than 15 years.
       (ii)    OPD strength per day not less than 3000.
       (iii)   Bed occupancy average not less than 80%.

       (iv)    The hospital must be unitary.

65. The contention raised by the counsel was that the MCI by

virtue of this notification can allow a new medical college or institute

with admission capacity of the maximum intake of 250 students

depending upon such a college fulfilling the laid down criteria of

infrastructure and other parameters but is denying the permission for

additional intake to a medical college already imparting education to

the MBBS students with 2 or 3 yearly renewals to its credit. The

contention raised by the counsel for the petitioner was that there

cannot be different parameters for a new institute and an institute

already established and approved by the MCI. This contention raised

by the counsel for the petitioner is not without any merit as it is

unfathomable that a new institute can be granted permission for full

intake of admission capacity right in the first year itself but an

institute like the petitioners will not be granted the additional intake

of seats because it has not yet reached the stage of awarding MBBS

degree to its Ist batch even though it has the requisite facilities and

infrastructure in place. It cannot be overlooked that for increase of

seats as well, the Council has to ascertain whether such medical

college is fully equipped to undertake such an increase in terms of

laid down regulations or not and, therefore, the parameters either at

the stage of opening of a new medical college or at the stage of

permitting an increase, the medical college is required to satisfy the

laid down parameters and once such a medical college is found to

have fulfilled all the laid down parameters without there being any

deficiencies, this Court is of the view that there can be no reason that

how additional intake of seats to such a medical college can be

denied on the ground that it has not yet reached the stage of

awarding MBBS degree.

66. One of the principal reasons given by the counsel for the

respondent for introducing such a stringent measure was that many

of the private medical colleges in the past failed to fulfill yearly

requirements after granting admission to the students in the initial

stage and, therefore, before granting increase of additional intake to

a medical college, the condition of such medical colleges reaching the

stage of award of MBBS degree was introduced in the regulations.

This Court has not been persuaded to conform to this view on

analyzing the entire scheme of the Act and regulations framed

thereunder, yet in any case of the matter, while permitting any

institute to open a college or for granting yearly approval and even

for granting additional intake, the noose is required to be tightened

by the respondent MCI to ensure that none of the medical colleges

either at the stage of opening the medical colleges or at the renewal

stage or at the stage of applying for increase, are given

approval/permission/renewal unless they strictly adhere to the laid

down parameters and norms under the regulations framed by the

MCI Act, which regulations indisputably have a mandatory force. It is

a hard fact that the Government has not been able to establish more

medical colleges or universities to keep pace with the aspiring and

ever increasing demand of students desirous of seeking admission in

MBBS course to fulfill their ultimate dream of becoming doctors, and

therefore, there has been huge dependence on the private medical

colleges. It also cannot be overlooked that large number of young

boys and girls right from the stage of their secondary level start

preparing for the medical entrance test and while these students

when faced with the challenge of scoring high percentage in their

senior secondary exam, simultaneously prepare themselves for the

MBBS entrance exams undertaking specialized coaching classes.

Parents of such students also leave no stone unturned to see their

children fulfilling their dreams and spend huge amount out of their

hard earned money in getting them the best possible education.

However, the percentage of the students who ultimately secure

admission in MBBS course is miniscule and every year the ratio of

the students appearing in the entrance tests is increasing manifold in

comparison to the increase in the ratio of the seats in various private

medical and Government colleges. There is thus a dire need for the

opening of new medical colleges by the Government or even by the

private bodies to meet the aspirations of young students. Equally

important and rather more attention is required to be paid to the fact

that there is no decline in the maintenance of standard of medical

education as doctors who deal with the human lives cannot be seen to

be half trained or half baked doctors. To ensure that highest

standards are maintained in the medical colleges desirous of

imparting education in the medical field, the solution will not come

from denying these medical colleges the required increase but would

be to ensure that the increase is permitted in admission capacity to

these colleges only when they strictly adhere to the laid down criteria

and the regulations of the MCI. Experience has been that although

the MCI/B0G comprises of experts and there are such other expert

bodies like Dental college of India, AICTE, NCTE, etc. and wherever

their concerned officers have indulged either in corruption or in

giving undue favours, the same has resulted into compromising the

standards of education in the field for which such institutes were

given recognition or approvals. It will be thus not in the larger public

interest to stop the growth of medical colleges when asking for

increase if these medical colleges otherwise fulfill the laid down

criteria of the regulations in terms of infrastructure and facilities.

67. The Apex Court in Mridul Dhar vs Union of India (Supra)

repelled the argument of the MCI that only seats recognized under

Section 11(2) are taken into consideration and not the seats which

are permitted under Section 10A of the Act when the question before

the Apex Court arose about including Section 10A seats for working

out 15% All India quota in private and government colleges. It would

be appropriate to refer the following paras from the said judgment

here:-

"22. Yet another issue is about not taking into consideration, for determining All India Quota, those seats which are created under Section 10A of the Act. In the writ petition, number of seats which were not taken into consideration have been mentioned. According to MCI, only seats recognized under Section 11 are taken into consideration and not seats which are permitted under Section 10A of the Act. For deciding this issue, it is necessary to examine the provisions of the Act and the Regulations issued thereunder. Another connected issue also is regarding the establishment/renewal granted to medical and dental colleges including grant of permission to increase intake of the students. There is also the issue about the allocation of seats in respect of which, the letter granting permission is issued as per time schedule by the Central Government by 15th July.

23. Section 10(A) of the Act which was inserted by the Indian Medical Council (Amendment) Act, 1993 (Act 31 of 1993) with effect from 27th August, 1992, makes it imperative to seek permission for establishment of a new medical college, new course of study. In view of this Section, with effect from 1st June, 1992 prior permission is necessary. Section 10(A), inter alia, provides that notwithstanding anything contained in the Act or any other law for the time being in force--

(a) no person shall establish a medical college; or

(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 recognized 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.

24. Section 10A(2)(a) provides that 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.

25. Along with Section 10A, Clause (fa) was also inserted in Section 33 to empower MCI to make regulations to provide for the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under Clause (b) of Sub-section (2) of Section 10A.

26. Section 11(1) of the Act, inter alia, provides that medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the

purposes of this Act. Section 11(2) provides that any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting Council, may, by notification in the Official Gazettee, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognized medical qualification only when granted after a specified date.

27. In exercise of the powers conferred by Section 10A read with Section 33 of the Act, the MCI made the establishment of new medical colleges, opening of higher courses of study and increase of admission capacity in Medical College Regulation, 1993. The Regulations, inter alia, provided as a qualifying criteria that the eligible organization shall abide by Indian Medical Council Act, 1956 as modified from time to time and the regulations framed thereunder and shall qualify to apply for permission to establish new medical colleges only if the conditions therein are fulfilled. One of the conditions is that Essential Certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material is available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration. It also provides that the applicant owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities and capable of being developed into a teaching institution as prescribed by the Medical Council of India, in the vicinity of proposed medical college. The MCI has also made the Establishment of Medical College Regulations, 1999 in exercise of powers conferred by Section 10A and Section 33 of the Act, inter alia, prescribing the form of Essentiality Certificate as a qualifying criteria to make application for permission to establish a medical college. These Regulations stipulate that Essentiality Certificate in Form-2 regarding No objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the council regulations, have been obtained by the person from the concerned State Government/Union Territory Administration.........

30. It cannot be doubted that proper facilities and infrastructure including teaching faculty and Doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. It cannot be said that such facilities are not insisted upon for Section 10A seats. No instance has been brought to our notice where Section10A seat in a Government college has not been recognized under Section 11. The All India Quota seats are applicable only to

Government colleges. In many colleges, full-fledged seats for all intent and purposes in so far as medical education is concerned, whether in a new medical college or increase intake in an existing college, are continuing as 10-A seats. Prima facie, we see no reason why such seats shall not be taken into consideration for calculating 15% share of All India Quota. The 15% quota seats get substantially reduced by not taking into account Section 10A seats. We direct the Central Government, DGHS and MCI to examine this aspect in detail and submit a report, on consideration whereof we would finally decide the matter regarding inclusion of Section10A seats for working out 15% All India Quota."

68. In the above case, the Apex Court clearly observed that

no instance was brought to their notice by the MCI where Section

10A seats in the Government colleges have not been recognized

under Section 11(2) and the distinction of Section 10A seats and

recognition under Section 11(2) could be clearly seen. Here it would

also be useful to refer to the observations of the Apex Court in the

judgment in Medical Council of India vs State of Karnataka &

Ors. (1998)6SCC131 where the Court was dealing with the power

of State of Karnatka to fix the admission capacity in the medical

colleges of the State prior to the insertion of Section 10A, 10B and

10C in the Indian Medical Council Act, 1956. While deciding the said

question, the Apex Court took a view that no medical college can

admit any student in excess of its capacity fixed by the Medical

Council, subject to any increase thereof as approved by the Central

Government and that Section 10A, 10B and 10C will prevail over

Section 53(10) of the Karnataka Universities Act and Section 4(1)(b)

of the said Capitation Fee Act. The following paras from the said

judgment are reproduced as under:-

"The State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act must give way to the Central Act, namely, the Indian Medical Council Act, 1956. Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in collection of capitation fee by colleges and for that the State Government is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medical Council as per the Regulations. Chapter IX of the Karnataka Universities Act, which contains provision for affiliation of colleges and recognition of institutions, applies to all types of colleges and not necessarily to professional colleges like medical colleges. Sub-section (10) of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to course for studies in a college and that number shall not exceed the intake fixed by the University or the Government. But this provision has again to be read subject to the intake fixed by the Medical Council under its Regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and over-seeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations Under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the college and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the college and in the hospitals. These Regulations are in considerable details. Teacher-student ratio prescribed is 1 to 10 exclusive of the professor or head of the department. Regulations further prescribe, apart from other tilings, that number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physicians/Surgeons of medical colleges and attached hospitals.

33. In the colleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these colleges could take annually on the basis of these regulations. Without permission of the Medical Council, the number of admissions could not be more than that

prescribed at the time of granting recognition to the college. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical colleges in the State in total disregard of the regulations and rather in violation thereof. These medical colleges cannot admit students over and above the intake fixed by the Medical Council. These colleges have acted illegally in admitting more students than prescribed. Universities and the State Government had no authority to allow increase in the number of admissions in the medical colleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have, corresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have not produced any document to show that increase in admission capacity to medical colleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective colleges and that there is also corresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education through out the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council.

34. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human being and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State

Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.

35. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1,1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed Under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jain's case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected."

69. The aforesaid position with regard to the increase of the

seats was prior to the supersession of the Medical Council of India

and now with the Board of Governors in supersession of the

Medical Council of India in place, there is no requirement either at

the stage of opening of a new institute or at the stage of renewal or

even at the stage of increase for the Council to make a

recommendation to the Central Government and it is thus Board of

Governors in supersession only which is competent to take all such

decisions. In K.S. Bhoir (Supra) also where the Apex Court was

dealing with the decision taken by the Central Government rejecting

the request of the State Government of Maharastra granting one time

increase in admission capacity in MBBS, BDS courses being run in

various medical colleges located within the State, the Apex Court in

the said judgment laid down the importance of medical colleges first

satisfying the requirements of provisions of sub Section 7 of Section

10A envisaged under the regulations for the increase of their

admission capacity, but while carrying out the discussion on the

scheme of the Act and regulations, nowhere there is a reference to

the pre-condition of a medical college reaching the stage of awarding

MBBS degree for seeking increase in their intake capacity.

70. Hence, in the light of the aforesaid discussion, this Court,

therefore, does not find any merit in the arguments of the counsel for

the respondent that the petitioners were required to reach the stage

of awarding the MBBS degree to qualify to seek increase in their

admission capacity.

71. This Court also does not find any merit in the arguments

raised by the counsel for the respondent that the said policy for non-

granting increase without such a medical college reaching the stage

of awarding of MBBS degree being followed for all these past years

by itself has become a good practice acceptable in law. Both the

counsel have not been able to place on record any judgment on this

controversy which would mean that never before an occasion arose

before any Court of law to test the scheme of the Act and regulations

framed thereunder so far the issue of increase of seats is concerned.

This Court cannot ascribe to the argument of counsel for the

respondent that simply because the said policy was being followed

for all these years the same should be accepted as such, although the

same may not qualify the test of law.

72. Coming to the another argument of counsel for the

respondent that in the absence of a challenge made by the petitioners

to the said regulations, this Court would not interfere with the plain

and simple language of the regulations or to strike down the same,

there cannot be any quarrel with the abovesaid legal proposition

canvassed by the counsel for the respondent and the same has also

not been refuted by the counsel representing the petitioners and in

fact the counsel representing the petitioners very candidly submitted

that they were not challenging the vires of any of the provisions of the

Act or the regulations framed thereunder. This Court has merely in

the present case interpreted the relevant provisions of the Act and the

regulations framed thereunder in terms of the above discussion after

analyzing the scheme of the Act. It is a settled principle of law

that the interpretation of any Statute or any rules and regulations

framed under the Statute must depend on its text and context. The

regulations derive its strength and validity from the Statute

whereunder they are framed and, therefore, the regulations need to

be interpreted looking into the legislative intendment behind the

scheme of the main Act or Statute. It is also well established that the

intention of the legislature has to be gathered by reading the Statute

as a whole and not by selective reading of the Statute. As would be

seen from the above discussion this Court has not ventured into either

"reading down" or "striking down" any of the provision of the Act or

regulations framed thereunder. This Court has merely attempted to

give a proper and plausible meaning to the relevant provisions of the

Medical Council of India Act and applicable regulations to the

controversy involved, looking into the entire scheme of the Act and

intendment of the legislature so that the object of the Act and the

regulations is properly and effectively achieved, without causing any

violence to the provisions of the Act and without ascribing any

different meaning to the relevant expressions used in such provisions

and regulations.

73. Dealing with the other argument of the counsel for the

respondent that this Court while exercising judicial review will not

embark upon the enquiry of whether a public policy is wise or better

or whether a different policy would be fairer, wiser, scientific or

more logical as held by the Apex Court in Balco Employees Union Vs.

UOI (supra). It is suffice to mention here that this Court has not

adjudicated upon or even weighed that whether the policy envisaged

under the Act is rational, wise or logical or whether a better policy

could have been in place, but has in the right earnest, interpreted the

regulations framed under the Act bringing to light the correct

intendment and purpose and rational of the policy as would have been

envisioned by the framers of the regulations.

74. Coming to the last limb of the argument of the counsel for

the respondent that this Court, even if finds the petitioners to be

eligible for the grant of increase of additional intake in their institutes

will not exercise its jurisdiction on its own and will remand the matter

back to the Statutory Body for decision. The contention of the counsel

for the respondent was that the Hon‟ble Apex Court in the case of A.P.

Christians Medical Educational Society (supra) has deprecated such a

practice of the High Courts to grant such reliefs and has left the

matters to be decided by the Statutory Bodies alone. Mr. Maninder

Singh, Senior Advocate for the petitioner on the other hand placed

reliance on the judgment of the Apex Court in the case of Comptroller

and Auditor-General of India Vs. K.S.Jagannathan & Anr. (supra),

Secretary, Cannanore District Muslim Educational Association vs.

State of Kerala & Ors. (supra), Al- Karim Educational Trust Vs. State

of Bihar (supra), and of this Court in Integrated Education

Development vs. UOI (supra), and judgments of various other High

Courts to support his contention that in order to prevent injustice this

Court can pass an order or give direction which the Government or

public authority should have passed or given had it properly and

lawfully exercised its discretion. Counsel also submitted that in

Integrated Education Development case, this Court had given the

directions for granting recognition to a new Dental college ignoring

the existence of minor deficiencies in the said college. It is inevitable

that the aforesaid decisions by the Hon‟ble Supreme Court of India

and other High Courts have been given depending upon the facts of

the case before them. It is a settled legal position that every case has

to be decided peculiar to its own facts and the ratio of one case

cannot be applied like a lucid theorem to the other unless the facts of

the case in hand, if not exactly, but substantially deals with the same

situation. In Comptroller and Auditor-General of India case, the Apex

Court referred Halsbury‟s Laws of England 4 th Edn. and quoted with

approval the following passage dealing with the efficacy of mandamus

and the same is reproduced as under:-

"In Halsbury's Laws of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

75. The Apex Court further referred to Merrill on mandamus

and observed that it would be a monstrous absurdity if in a well

organized Government, no remedy is provided to a person who has a

clear and undeniable right. It was also observed that where a man has

a jus ad rem (a right to a thing) it will be "absurd, ridiculous and

shame to the law, if courts have no remedy and the only remedy he

can have is by mandamus".

76. The petitioners before this Court are seeking increase in

additional intake and it is not in dispute that for seeking the said

increase they had applied within the stipulated time as prescribed in

the regulations. The increase in additional intake to these petitioners

was not granted by the respondent MCI only because they were found

ineligible to qualify to apply for such increase in their admission

capacity. The parties are well aware that 30th September, 2011 is the

dead line for admissions in the MBBS course and if these matters are

remanded back to the respondent as per submission of the counsel for

the respondent then these petitions will become infructuous despite

the decision of this Court in their favour. The Writ Court, thus, in

exercise of its plenary and extraordinary powers can give appropriate

directions whenever and wherever the ends of justice so demand in

the given fact situations. The respondent MCI is accordingly directed

to grant increase in the additional intake of students from 100 to 150

to all these petitioners institutes subject to, however, the condition

that these petitioners fulfill all other requirements and the criteria

laid down in the regulations and there being no deficiencies existing

for granting the said increased intake in the admission capacity from

100 to 150 students in the MBBS course.

77. At omega, this Court would like to give its observations on the

larger issue of the medical education in the country. The doctors of

our country are the cynosures of the medical fraternity of the world

and for making them a sought after lot, the privatization of the

medical education became the need of the hour. But it is a hard

hitting reality that this edu-business, as it is now popularly called, has

led to the growing merchandising of the medical education, blurring

the benefits of privatization and entering the realm of proliferation.

This sudden spurt has no doubt contributed to the declining standards

of the medical education, with more money being pumped in by

charging higher fees but the infrastructure and facilities, more

importantly, faculty, is dwindling and inadequate. The mushrooming

and setting of medical shops has been in the news quite often leading

to the scrapping of the Apex Regulatory body like the MCI due to its

tainted practices, the natural corollary of which being more stringent

rules and regulations appearing on the statute book and like in the

present case, more rigorous interpretations of the regulations being

sought in the wake of the regulatory checks and monitoring of the

private colleges. There is no two way about the fact that there are

colleges which are set up only for the purpose of minting and raking

in the moolah, appointing rogue doctors at the time of inspections, an

emergency like frenzy for the show day, window dressing, etc but the

crucial question is that is it a reason enough to look at all the private

colleges through the prism of incertitude.

78. There were only 19 medical colleges in the country at the

time of independence and today the number of colleges imparting

MBBS education is almost 335. It is indeed a significant rise which

should be the sign of the progress and growth of a nation, especially

like ours, with a burgeoning population, but whether the increased

numbers means higher health care delivery system is still debatable

as the number crunching has another story to tell. As per the recent

published reports, India ranks 67th in the list of 133 developing

countries with the doctor-population ratio at 1:1700 as compared to

the world ratio which is 1.5:1000. The WHO target is to achieve the

ratio of 1:1000, which India will be able to do only till 2031 with the

existing colleges and state of affairs and it is estimated that there will

be still a shortage of 9.54 lakh doctors till then. With the government

colleges share being less and the private colleges shouldering more

responsibility, there is still approximately only 1 medical college per

38.41 lakh, dismal figures which reflect the acute crisis in the

country. The MCI received 104 applications this year for the increase

of admission capacity out of which 43 were disapproved on scrutiny,

61 inspected and 33 approved, out of which 18 were in private sector.

With the panoramic view of the above statistics, the inevitable

conclusion is that the private colleges are the harbingers of hope for

the dreaming and yearning India.

79. The privatization of medical education was aimed at

reversing the notion of higher education being the prerogative of the

rich and making it universal and attainable. The additional numbers

would bring glory if they go through the highest standard of education

and training and bridge the gap in the health services in the urban

and rural areas. To achieve a balance, between the unprecedented

institutional growth today vis a vis skewed doctor-patient ratio, the

only solution is to review the entire regulatory mechanism and

revitalize the system of checks before this aberration of rot becomes a

trend in the country. The MCI requirements for setting up medical

colleges focus more on infrastructure and human resources required

and less on process and quality of education, with the information

sought only from the college administration and not from students,

faculty or patients and it is time that the regulations be focused more

to foster true medical education and producing a competent cadre of

doctors rather than just more number of doctors. It is a national

quality challenge and the time for the MCI/BOG to be vigilant and

reinvigorate the system to stop the unplanned and unequal growth of

mediocre colleges aimed at commercialization of medical education,

rather than stop the growth of colleges catering to the needs of the

aspirant doctors by giving lopsided interpretations to the regulations.

The health care sector cannot be allowed to suffer a trust deficit, and

it is time the trust of the common man in the custodians of our health

is rejuvenated and strengthened, and that can only be done by

monitoring the quality of medical education in the country more

stringently by the MCI. It is the time of perils to be addressed before

we lose the cutting edge in global healthcare and education.

80. With the above directions, the present petitions are

allowed leaving the parties to bear their own costs.

KAILASH GAMBHIR, J September 28, 2011