Shree Chhatrapati Shivaji ... vs Union Of India And Anr
2015 Latest Caselaw 4333 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 28th May, 2015.

+              W.P.(C) 5041/2015 & CM No.9119/2015 (for direction)

       SHREE CHHATRAPATI SHIVAJI
       EDUCATION SOCIETY & ANR               ..... Petitioners
                   Through: Mr. Rajshekhar Rao with Mr.
                            Abhinav Mukerji, Ms. Purnima
                            Krishna and Mr. Sameer Dawar,
                            Advs.

                                  Versus

    UNION OF INDIA AND ANR                     ..... Respondents
                  Through: Ms. Monika Arora and Mr. Abhishek
                           Choudhary, Advs. for UOI.
                           Mr. Vikas Singh, Sr. Adv. with Mr.
                           T. Singhdev, Adv. for R-2/MCI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India impugns

Proviso (b) to Regulation 8(3)(1) (as it stands, after the amendment w.e.f.

16th April, 2010) of the "Establishment of Medical College Regulations,

1999" framed by the respondent No.2 Medical Council of India (MCI) in

exercise of powers conferred by Sections 10A and 33 of the Indian Medical

Council Act, 1956. The petition also claims consequential reliefs

concerning the two petitioners.

2. The writ petition came up before us first on 20th May, 2015, when the

counsel for the respondent No.1 Union of India and the senior counsel for

the respondent No.2 MCI appeared on advance notice. The petitioners,

along with the writ petition have also filed an application seeking interim

directions to the respondent No.2 MCI to inspect the "Institute of Medical

Sciences & Research", Mayni, Satara, Maharashtra, a medical college

established by the petitioner No.1 Shree Chhatrapati Shivaji Education

Society and of which Society the petitioner No.2 Mr. Nitin B. Pawar is the

Director. In a nutshell, the petitioners‟ Medical College, for the reason of

the Regulation impugned in this petition, has not been considered for

renewal of permission for admission of students in the academic year 2015-

2016 and the purport of the petition is to have the petitioners‟ Medical

College considered for renewal of such permission and the time whereof

was stated to be till 15th June, 2015. In this light of the matter, we, with the

consent of the counsels, on 20th May, 2015 heard the counsels finally on the

petition itself and reserved judgment.

3. The petitioners were granted permission under Section 10A of the

Medical Council Act for the establishment of the medical college aforesaid,

from the academic year 2012-2013. The said permission was for a period of

one year, renewable on a yearly basis. The petitioners, after getting renewal

permission, admitted second batch of students for MBBS course to their

Medical College in the academic year 2013-2014. It is the case of the

petitioners that the respondents wrongly denied permission to the petitioners

for admitting the third batch of students in the academic year 2014-2015,

compelling the petitioners to litigate and during the pendency of which

litigation, the Supreme Court vide order dated 18th September, 2014 in

W.P.(C) No.469/2014 titled Hind Charitable Trust Shekhar Hospital Pvt.

Ltd. Vs. Union of India permitted all medical colleges to admit students for

the academic year 2014-2015 subject to filing an undertaking that all

deficiencies earlier pointed out by the Central Government / MCI had been

removed and on certain other conditions. The petitioners filed such an

undertaking and complied with the conditions and thus admitted students in

the academic year 2014-2015 also to their Medical College.

4. The petitioners applied for permission for admitting the fourth batch

of students in the academic year 2015-2016. The Medical College of the

petitioners was inspected on 14th and 15th November, 2014. The report of

the said inspection was considered by the Executive Council of the

respondent No.2 MCI in its meeting held on 16 th December, 2014,when it

was noted that as per the report of the inspection, the medical college of the

petitioners:

(i) had deficiency, in faculty of 40.87% and in residents of

86.14%;

(ii) had not conducted any workshop on Medical Education

Technology during the year;

(iii) had not awarded any credit hours for CME programmes;

(iv) had accommodation available in the students hostel for 192

students only against the requirement of 300 and the hostel also did

not have visitors room, A.C. study room with computer and internet

and recreation room;

(v) had a daily average of major surgeries of only seven per day

and which was inadequate;

(vi) had grossly inadequate workload in radiological investigations;

(vii) had inadequate workload in histopathology;

(viii) did not have Medical Records Officer;

(ix) had other deficiencies listed in the inspection report.

The Executive Council of the respondent No.2 MCI accordingly

decided to recommend to the Central Government, not to renew the

permission for admission of fourth batch of students to the MBBS course in

the Medical College of the petitioners in the academic year 2015-2016 and

to apply the Proviso (b) to Regulation 8(3)(1) of the Regulations aforesaid

to the Medical College of the petitioners.

5. The Executive Council of the respondent No.2 MCI at the same time

also concluded that the undertaking filed by the petitioners / their Medical

College to the effect that all deficiencies had been removed and subject to

filing of which undertaking the Medical College of the petitioners had by

order aforesaid of the Supreme Court been permitted to admit the third

batch of students in the academic year 2014-2015, was false because the

deficiencies were found to have persisted. Accordingly, the Executive

Council also decided to invoke the bank guarantee submitted by the

petitioners‟ Medical College and to ask for a fresh bank guarantee.

6. The said decisions were communicated by the respondent no. 2 MCI

to the Central Government vide letter dated 22nd December, 2014 with copy

to the petitioners' medical college.

7. The Central Government vide its letter dated 13th January, 2015 to the

petitioners‟ Medical College again communicated the decision taken in the

meeting aforesaid of the Executive Council of the respondent No.2 MCI and

in accordance with the first proviso to Section 10A(4) of the Medical

Council Act, granted a hearing to the petitioners.

8. On the basis of the compliance/fulfillment, of the deficiencies pointed

out by the MCI, reported by the petitioners in the said hearing, the Central

Government vide letter dated 17th April, 2015 to the MCI asked the MCI to

review/assess the compliance reported by the petitioners and furnish its

recommendation.

9. The Executive Council of the respondent No.2 MCI in its meeting

held on 29th April, 2015 considered the letter dated 17th April, 2015 of the

Central Government and decided that the deficiencies found in the earlier

inspection being substantial, under Proviso (b) to Regulation 8(3)(1) supra,

the application of the petitioners‟ Medical College for renewal of

permission to admit fourth batch of students to the MBBS course in the

academic year 2015-2016 was not required to be processed/considered

further notwithstanding the compliance/fulfillment of deficiencies earlier

found, reported by the petitioners as there is no provision to grant any

opportunity for rectification of such substantial deficiencies, as the same

cannot be rectified within a short period of time. The Executive Council of

the MCI further noted that the inspection on 14th and 15th November, 2014

had been carried out by professors of eminence and high integrity,

belonging to various Government Medical Colleges of the country, and their

report had also been acknowledged by the Dean / Principal of the

petitioners‟ Medical College and truthfulness and veracity of the contents of

the report of the inspection which incorporated factual findings of

independent persons in the presence of the Dean / Principal of the

petitioners‟ Medical College could not be doubted. The Executive Council

of the respondent No.2 MCI accordingly decided to and vide letter dated

11th May, 2015 to the Central Government reiterated its earlier

recommendation to not to renew the permission for admission of the fourth

batch of students in the petitioners‟ Medical College.

10. Hence, this petition, challenging Proviso (b) to Regulation 8(3)(1)

supra alongwith the letters dated 17th April, 2015 and 11th May, 2015 supra

and seeking a direction to the respondents to grant renewal of permission for

admission of fourth batch of MBBS students in the academic year 2015-

2016 in the petitioners‟ Medical College.

11. The petition is before this Bench for the reason of challenge made

therein to a statutory regulation. We will thus concern ourselves first with

the said challenge.

12. The contention of the petitioners is:

(a) that the said Regulation is in contravention of Section 10A of

the Medical Council Act, inasmuch as it vests decision making power

in the respondent No.2 MCI which it otherwise does not possess

under the Medical Council Act and thus interdicts the exercise of

power by the Central Government under Section 10A of the Act;

(b) that the said Regulation is in violation of the principles of

natural justice, inasmuch as it denies opportunity to the medical

college to show compliance with the deficiencies found in the

inspection and amounts to summary rejection of the application of a

medical college for renewal of permission merely on the basis of

report of the inspection;

(c) because the said Regulation is violative of the Fundamental

Rights of the petitioners who have made an investment of Rs.90

crores in the infrastructure and staff of their Medical College.

13. Section 10A of the Medical Council Act dealing with permission for

establishment of new medical college, new course of study, vide Sub-

section (1) thereof prohibits establishment of a medical college or

commencement of a new or higher course of study or training in a medical

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

in a medical college except with the previous permission of the Central

Government obtained in accordance with the provisions thereof. Sub-

section (2) requires the person desirous of establishing a medical college or

commencing a new or higher course of study or training in a medical

college or of increasing the admission capacity in any course in a medical

college, to submit to the Central Government a scheme in the prescribed

form and requires the Central Government to refer the said scheme to the

respondent No.2 MCI for its recommendations. Sub-sections (3), (4), (7) &

(8) of Section 10A, relevant for the present purpose, are as under:

"(3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may -

(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council;

(b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government.

(4) The Central 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).

......

(7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely:-

(a) whether the proposed medical college or the existing medical college seeking to open a new or higher

course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under section 19A or, as the case may be, under section 20 in the case of postgraduate medical education;

(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase 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 or students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;

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

(emphasis added)

Sub-section (5) provides for deemed approval of the scheme by the

Central Government, if within a period of one year from the date of

submission thereof, no order thereon is communicated and Sub-section (6)

provides for exclusion from the said period of one year of the time taken by

the applicant in furnishing any particulars sought by the MCI or the Central

Government.

14. In exercise of powers under Section 10A(2) (of prescribing the form

of the scheme to be submitted) and Section 33 (empowering the respondent

No.2 MCI to with the previous sanction of the Central Government make

regulations providing inter alia for the form of scheme, the particulars to be

given in such scheme, the manner in which the scheme is to be preferred

and the factors to be considered under Section 10A(7)(g)), the

"Establishment of Medical College Regulations, 1999" aforesaid have been

framed.

15. As per Regulation 8(3)(1), the permission to establish a medical

college and admit students is to be granted initially for a period of one year,

to be renewed on early basis, subject to verification of the achievement of

annual targets, 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. It further provides that the Central

Government may at any stage convey the deficiencies to the applicant and

provide him an opportunity and time to rectify the deficiencies but with the

following proviso:

"PROVIDED that in respect of

(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and / or Residents is more than 30% and / or bed occupancy is < 60%, such an institute will not be considered for renewal of permission in that Academic Year.

(b) Colleges in the stage from III renewal (i.e. Admission of fourth batch) till recognition of the institute for award of M.B.B.S. degree:

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and / or Residents is more than 20% and / or bed occupancy is < 70%, such an institute will not be considered for renewal of permission in that Academic Year. ..........."

16. The counsel for the petitioners has argued that as per Section 10A of

the Medical Council Act, the decision, whether to grant permission or not is

of the Central Government and the role of the MCI is only to make a

recommendation; hence, once the Central Government, after considering

the initial recommendation dated 22nd December, 2014 of the respondent

No.2 MCI along with the representation made by the petitioners

thereagainst, had vide letter dated 17th April, 2015 directed the respondent

No.2 MCI to review its recommendation, it is not permissible for the

respondent No.2 MCI to, relying on Proviso (b) to Regulation 8(3)(1) supra

refuse to review its recommendation. It is further contended that the

respondent No.2 MCI in the past had been abiding by such directions of the

Central Government to review and has now erroneously, relying on the legal

opinion of the Additional Solicitor General of India (referred to in the letter

dated 11th May, 2015 supra of the MCI) decided not to consider the

application for renewal of permission. It is further argued that Proviso (b) to

Regulation 8(3)(1) prohibiting consideration even of the application for

renewal of permission upon finding the deficiencies to be substantial,

deprives the medical college from an opportunity to represent against the

findings of the inspection. It is yet further contended that such opportunity

having been provided to be given under Section 10A itself, could not have

been taken away by way of Regulation.

17. Per contra, the senior counsel for the respondent No.2 MCI has

controverted that Section 10A of the Medical Council Act contemplates

providing any such opportunity. It is argued that MCI is under no

obligation to give any opportunity to the medical college to rectify the

deficiencies. It is explained that since, while granting permission for

admitting students of the first batch, the medical college and the hospital

attached thereto is not required to have all the amenities and facilities which

may be needed for imparting education for the subsequent years of the

MBBS course, the same is not insisted upon; however, the medical college

at the time of applying for subsequent renewals is required to fulfill

whatsoever are the requirements for the subsequent years. It is contended

that a medical college seeking permission to admit students to the fourth

batch would be completing its strength of students at any given point of time

and is required to be having all the prescribed amenities and facilities

including in the hospital attached thereto and cannot be granted permission,

if it is not so equipped. It is further explained that though under the

Regulations supra, the Central Government, on receipt of a recommendation

of refusal of renewal permission, is required to give an opportunity to the

medical college to rectify the deficiencies but an exception is carved out for

the stages of renewal permission for admitting students of third and fourth

batches, if the deficiency is beyond the stipulated limit and in which case

the application for renewal is not even required to be considered. It is

explained that where the deficiency is huge, the Regulations assess /

presume that no purpose would be served in giving an opportunity to rectify

the said deficiency, inasmuch as it cannot, in the short time available, be

rectified. It is stated that deficiency of more than 20% in teaching faculty /

Residents and of less than 70% bed occupancy in the attached hospital,

inspite of the medical college having been in operation for three years, is

treated as deficiency incapable of rectification in the short time available.

18. To meet the argument of the petitioners of the impugned Regulation

being contrary to the principles of natural justice, the counsel for the

respondent No.2 MCI has placed reliance on Manohar Lal Sharma Vs.

Medical Council of India (2013) 10 SCC 60 laying down, (i) that the

permission is renewed every year subject to the medical college achieving

the yearly target mentioned in "Minimum Standard Requirements for the

Medical College for 150 Admissions Annually Regulations, 1999"; (ii) that

the said standards / requirements are statutorily prescribed and MCI has no

power to dilute statutory requirements; (iii) MCI, while deciding to grant

permission or not to grant permission, is not functioning as a quasi-judicial

authority but only as an administrative authority; (iv) rigid rules of natural

justice are therefore not contemplated or envisaged; (v) that the deficiencies

which are fundamental and crucial cannot be ignored in the interest of

medical education and in the interest of students community; (vi) that MCI

and the college authorities have to bear in mind what is prescribed is the

minimum; if MCI dilutes the minimum standards they will be doing the

violence to the statutory requirements; (vii) that MCI is duty bound to

cancel the request, if fundamental and minimum requirements are not

satisfied or else the college will be producing half-baked and poor quality

doctors and they will do more harm to the society than service; (viii) that an

order refusing permission is not vitiated by violations of principles of

natural justice, when no allegation of bias or mala fide has been attributed

against the doctors who constituted the inspection team; (ix) that when the

inspection team consists of doctors of unquestionable integrity and

reputation, who are experts in the field, there is no reason to discard the

report of such inspection.

19. The counsel for the respondent No.2 MCI has also relied on para 16

of State of Kerala Vs. Kumari T.P. Roshana (1979) 1 SCC 572 laying

down that MCI is an expert body to control the minimum standards of

medical education and to regulate their observance and on paras 24, 27 & 29

of Medical Council of India Vs. State of Karnataka (1998) 6 SCC 131

laying down that Regulations framed by the MCI under Section 33 of the

Medical Council Act are to carry out the purpose of the Medical Council

Act and have mandatory force and that it is the Medical Council which is

primarily responsible for fixing standards of medical education and

overseeing that the standards are maintained and that it is the MCI which in

effect grants recognition and also withdraws the same.

20. The counsel for the petitioners in rejoinder has argued that the

respondent No.2 MCI's understanding espoused above of the position is not

supported by the Central Government which is the final decision making

authority, as is abundantly clear from the Central Government's letter dated

17th April, 2015 directing MCI to, in the light of the compliance report

submitted by the petitioners, review its recommendation of refusing renewal

permission to the petitioners‟ Medical College. It is contended that if the

Central Government also was of the view that the application of the

petitioners‟ Medical College is not entitled to be considered at all, owing to

the deficiencies pointed out in the inspection report, the Central Government

would not have vide letter dated 17th April, 2015 directed the respondent

No.2 MCI to review. It is yet further contended that the inspection report

cannot be treated as a gospel truth and if the deficiency pointed out in the

inspection report is of the magnitude mentioned in Proviso (b) to Regulation

8(3)(1), the medical college cannot be deprived of a right to contend that the

finding in the inspection report is faulty. Reliance is placed on Azeezia

Institute of Medical Sciences & Research Vs. Union of India 2010 SCC

Online Delhi 2509, where one of us (Justice R.S. Endlaw) held that when a

statute confers a discretionary power to be exercised by competent

authority, the Court cannot direct the competent authority to exercise

discretion in a particular manner but can always direct the competent

authority to exercise discretion vested in it in accordance with law. It is

contended that to grant renewal permission or not is a discretionary matter

and the medical college cannot be denied the right to demonstrate that it is

entitled to discretion being exercised in its favour.

21. The senior counsel for the respondent No.2 MCI has added that the

Central Government has not found any error with the stand of the MCI in

the letter dated 11th May, 2015 supra.

22. We have considered the rival contentions. As aforesaid, we are in the

first instance concerned with the challenge to the vires of the Regulation.

23. The counsel for the petitioners has been unable to demonstrate that

the Proviso (b) to Regulation 8(3)(1) is inconsistent in any manner

whatsoever with the scheme of Section 10A of the Act. Though it was

argued that Section 10A vests an opportunity in the medical college, inspite

of being found to be deficient in the standards prescribed, to make up the

deficiencies but the counsel for the petitioners could not point out any

provision of Section 10A vesting such right in the medical college against

the MCI.

24. Section 10A(2) read with Section 33 (fa) & (fb) leaves it to the MCI

to prescribe the form and the manner in which a scheme for establishment of

a new medical college shall be submitted and the particulars which will be

contained therein and the factors which will weigh with the MCI in

sanctioning or rejecting the said scheme. MCI, in exercise of the said

powers, first framed the "Establishment of New Medical Colleges, Opening

of Higher Courses of Study and Increase of Admission Capacity in Medical

Colleges Regulation, 1993" but which have since been superseded by the

"Establishment of Medical College Regulations, 1999" and the "Opening of

New or Higher Course of Study or Training (including Postgraduate 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". The said Regulations prescribe for sanction to be given

for one year, to be renewed for three successive years, till the admission of

fourth batch of students and thereafter till recognition is accorded and

prescribe the standards to be met before sanction is accorded for the

admission of first to fourth batch of students.

25. Section 10A(3) deals with the stage of consideration of the scheme by

the MCI and requires "reasonable opportunity", to be given "for making a

representation and to rectify the defects, if any, specified by the Council"

and to thereafter submit the scheme together with its recommendations to

the Central Government.

26. Section 10A(4) requires the Central Government to, while dealing

with the scheme alongwith recommendation of the MCI to refuse

permission, again give an opportunity of hearing to the applicant.

27. The question which arises for consideration is whether the Proviso (b)

to Regulation 8(3)(1) providing for no opportunity to rectify the

defects/deficiencies mentioned therein to be given is inconsistent with

Section 10A(3) providing for the MCI to specify the defects and giving an

opportunity to the medical college to rectify the defects. In our opinion, no.

The reasons for our opinion are:-

A. Section 10A(3) enables (by use of the word 'may') and does not

mandate (by not using the word 'shall') the MCI to, on receipt of scheme,

obtain such other particulars as may be considered necessary by it for

making its recommendation on the scheme. The Regulations provide for

particulars and information required to be furnished in the scheme. If the

scheme is not in accordance with the Regulations, there is nothing in

Section 10A(3) which mandates the MCI to still make an attempt to enquire

whether by seeking further particulars, the scheme can be in accordance

with the Regulations. Discretion has been vested in the MCI to, upon not

finding the scheme to be in accordance with the Regulations, make a

recommendation for disapproval thereof or to, if so desires or considers,

seek further particulars which may bring the scheme in accordance with the

Regulations. No right is vested in the applicant to compel the MCI to make

efforts to bring the scheme in accordance with the Regulations, inspite of

the applicant having failed to do so.

B. Section 10A(3)(a) also requires the MCI to give only 'reasonable'

opportunity to the applicant to make representation and to rectify the

defects, again 'if any' specified by the MCI. It is thus not as if the MCI, even

if upon finding the scheme to be defective and choosing to give an

opportunity to the applicant to rectify the defects, is required to give an

'unlimited' or a 'full' or 'complete' opportunity; even then it is required to

give only a 'reasonable' opportunity.

C. There is no mandate in Section 10A(3)(a) to the MCI to specify the

defects in the scheme. Thus it may, on finding defects, not specify the same

and straight away proceed to recommend disapproval of the scheme.

D. Section 10A(3) thus, as distinct from vesting a right in the applicant,

vests a discretion in the MCI to, even after finding the scheme forwarded to

it by the Central Government to be not in accordance with the Regulations

or defective or even after finding the medical college to be deficient, instead

of recommending disapproval thereof, give an opportunity to the applicant

medical college to give further particulars or to make a representation or to

rectify the defects.

E. This becomes further evident from the contrast between the language

of Section 10A(3) and (4). Section 10A(4) though in its main part leaves it

to the Central Government to, while considering the scheme with

recommendation of MCI, obtain from the applicant such particulars as may

be considered necessary, but the first proviso thereto bars the Central

Government from disapproving a scheme without giving a reasonable

opportunity of hearing to the applicant. Section 10A(4) thus vests a right of

reasonable hearing in the applicant before the scheme submitted by it is

disapproved by Central Government. There will be of course an element of

discretion in the Central Government as to the extent of such hearing.

F. It is this discretion vested by Section 10A(3) and (4) in the MCI and

the Central Government which is controlled or sought to be guided by

Regulation 8(3)(1) supra. The main part thereof, in consonance with

Section 10A(4) provides that "the Central Government may at any stage

convey the deficiencies to the applicant and provide him an opportunity and

time to rectify the deficiencies". However the provisos (a) to (d) thereof

limit such opportunity by specifying the deficiencies / defects for

rectification whereof no opportunity and time to rectify will be given and

existence whereof will lead to „non-consideration of the application for

renewal permission‟ for that year. The provisos (a) to (d) (of which we

herein are concerned with proviso (b)) thus instead of taking away any right

vested by Section 10A(3) and (4) in the applicant, as contended, limits the

discretion vested by Section 10A(3) and (4) in the MCI and Central

Government to inspite of finding deficiencies, give opportunity for

rectification thereof.

G. Significantly, the provisos aforesaid are to the part of Regulation

8(3)(1) which, in consonance with Section 10A(4) vests the discretion in

Central Government to give opportunity and time to the applicant to rectify

the defects conveyed. Thus it is the Central Government which, by the

provisos aforesaid is precluded from „considering the applicant medical

college for renewal permission‟ for that academic year. However, by

„precluding consideration even of the application for renewal permission‟,

MCI also is precluded from giving an opportunity under Section 10A(3).

H. In our opinion, where a statute confers a discretion in a statutory body

and / or the Government and also empowers such statutory body and / or

Government to make Regulations for exercise thereof, a Regulation

providing for situations in which discretion will not be exercised, cannot be

said to be inconsistent with the statute and bad for this reason. Thus, the

provisos (a) to (d) of Regulation 8(3)(1) laying down the deficiencies on

finding which the application for renewal permission shall not be considered

i.e. no opportunity to make up the deficiencies will be given, neither by the

MCI nor by the Central Government cannot be said to be ultra vires

Section 10A(3) and (4) which themselves confer absolute discretion as

aforesaid on MCI to straightaway recommend disapproval of scheme upon

finding it deficient in any manner.

I. It is not as if the deficiencies mentioned in provisos (a) to (d) supra

can be the only deficiencies at the stage of renewal permission with which

the said provisos are concerned. A perusal of the "Establishment of Medical

College Regulations, 1999" and the "Minimum Standard Requirements for

the Medical College for 150 Admissions Annually Regulations, 1999" show

a plethora of annual targets to be met at the stages of renewal permission

with which provisos (a) to (d) are concerned. The proviso (b) provides for

non-consideration of renewal permission only in two situations i.e. when

deficiency in teaching faculty and / or residents is more than 20% of the

minimum prescribed OR when the bed occupancy is less than 70% of that

prescribed. For all other deficiencies, opportunity to rectify can be given.

J. We find the aforesaid to be reasonable. At the time of seeking

renewal permission to admit fourth batch of students, the Medical College is

seeking to achieve its full student strength and is thus required to meet all

the minimum standards prescribed and for meeting which it has already

been given three years time since its establishment. If in the said three years

even, it has not been able to not only have the minimum teaching faculty /

residents and bed occupancy but the deficiencies are of as much as more

than 20% and 70% respectively then, no error is found in the Central

Government and the MCI in the Regulations stipulating that such medical

college will not be considered for renewal permission in as much as there is

only a short time available for consideration of renewal permission and in

that short time deficiencies in excess of 20% in teaching faculty and less

than 70% bed occupancy, which could not be achieved in previous three

years, cannot be made up. Accordingly, it will also fulfill the test of

"reasonable opportunity" mentioned in Section 10A(3). Non-giving of

opportunity / time to cure defects / deficiencies which are not curable in the

time available cannot be said to be deprivation of "reasonable opportunity".

K. We find a good discussion in this respect in Aditya Educational

Society Vs. UOI MANU/AP/0003/2014 and in Muthukumaran

Educational Trust Vs. The Secy. to Government MANU/TN/1346/2014 to

which unfortunately neither counsel referred. Of course, the Regulations

were not under challenge in these cases.

L. Thus irrespective of the general principle whether a power to regulate

discretion vested by statute to give an opportunity to rectify defects/

deficiencies before granting or refusing permission would include power to,

in Regulations specify the deficiencies for which no power to rectify will be

given, we, in the context of the MCI Act and the Regulations framed

thereunder, find that such power is included. We cannot be unmindful of

the large number of applications with which Central Government / MCI are

flooded annually and the mammoth work involved in consideration thereof.

When the experts in the MCI have assessed that deficiencies in excess of

20% in teaching faculty and of 70% in bed occupancy are such which are

incapable of being cured in the short time and have provided so in the

Regulations made with the previous sanction of Central Government, it

would not be correct for the Courts to say that since opportunity to cure

other deficiencies is given, opportunity to cure such deficiencies should also

be given.

M. Moreover, the deficiencies in teaching faculty and bed occupancy are

fundamental and crucial and cannot be ignored and are such which would

certainly affect the quality of education and if inspite thereof permission is

granted would result in the college producing half-baked and poor quality

doctors.

28. The only other ground of challenge to the Regulation i.e. of the same

being violative of the principles of natural justice, in our view is fully

covered by the dicta of the Supreme Court in Manohar Lal Sharma supra.

29. We may in this regard notice that the petitioners no where in the

petition or in the arguments have made allegations of bias or vindictiveness

against the team of experts who inspected the Medical College of the

petitioners and found the deficiencies therein to be beyond the limit

mentioned in proviso (b) to Regulation 8(3)(1) which disentitled the medical

college from consideration even of its application for renewal permission. It

is also not the case of the petitioners that the said team of experts imputed

the deficiency, owing to ulterior motives. In this light of the matter, we see

no reason to hold that an opportunity of hearing or rectification is required

to be given with respect to the report of the inspection. In a given case,

where a case of bias or vindictiveness or inspection report being guided by

extraneous factors is made out, it may be considered whether, an

opportunity of hearing is to be given. But the scope of such hearing would

be confined to whether any case for rejecting the inspection report which

has found such deficiencies is made out. Mere making of unsubstantial

allegations would not entitle consideration of application for renewal

permission. Even if a case for rejecting the inspection report is established,

it would call for another inspection.

30. No other argument on the aspect of vires of the Regulation has been

raised.

31. The challenge to the vires of proviso (b) to Regulation 8(3)(1)

therefore fails.

32. Once the challenge to the vires of the Regulation fails and it is held

that the respondent No.2 MCI was within its power to, on the basis of the

report of the inspection of the petitioners‟ Medical College on 14th and 15th

November, 2014, not consider the application of the petitioners for renewal

permission further, in our view, it would matter not whether the Central

Government, after considering the objections of the petitioners to the

recommendation of the MCI of refusal of permission, had directed the MCI

to review its recommendation. As aforesaid, once the vires of the

Regulation is upheld, then the direction contained in the letter dated 17th

April, 2015 of the Central Government to the MCI to review its

recommendation, being contrary to the Regulation, would be of no avail.

The Central Government is as much bound by the Regulation, made with

previous sanction of Central Government, as the MCI. The scope of hearing

under Section 10A(4) in cases where MCI has found proviso (b) to

Regulation 8(3)(1) to be applicable would be confined to considering

whether MCI has misread the inspection report as reporting deficiencies in

teaching faculty and bed occupancy or that the report of the inspection is

biased or vindictive or influenced by extraneous considerations. Only upon

being satisfied of the existence of the said ground, could Central

Government have directed the MCI to review its recommendation. That is

not the case here.

33. We may notice that the letter dated 17th April, 2015 supra of the

Central Government is qua not only the petitioners‟ medical College but all

the medical colleges under consideration. While against the petitioners‟

medical college the observation is "recommended for review by MCI",

against some other medical colleges the observations are (a) "MCI has not

specified what documents are not furnished by the college. Such arbitrary

approach is not acceptable. Ministry may instruct MCI to conduct

assessment of college"; (b) "recommended for compliance verification by

MCI"; (c) "strongly recommended for compliance verification by MCI"; (d)

"the college is now under newly established Health University. It may be

offered one last opportunity to furnish the required documents"; (e) "the

Government College is located in LWE affected area. The authorities are

facing genuine difficulties in acquiring and retaining faculty.

Recommended for review by MCI". It is thus evident that the Central

Government also has not found any error on the part of MCI in reading the

report of inspection as reporting deficiencies in term of proviso (b) to

Regulation 8(3)(1) and there being no challenge thereto.

34. The direction of the Central Government to the MCI to review, when

under the Regulation the application of the petitioners for renewal

permission is not to be considered further, would not vest any right in the

petitioners to seek mandamus against the MCI to review. This Court, in

exercise of writ jurisdiction, would not issue a direction contrary to the

statutory Regulation challenge to vires whereof has failed.

35. It matters not that the Central Government / MCI, inspite of

Regulation 8(3)(1) having come into force on 16th April, 2010 may not have

in the past applied the same. The same can neither affect the unambiguous

language of the Regulation nor vest any right in any one for same treatment.

36. It cannot also be lost sight of that the petitioners could admit third

batch of students, notwithstanding being not eligible therefor according to

the MCI, under the general order of the Supreme Court and according to the

MCI by furnishing a false undertaking.

37. Save for the aforesaid, no other argument on merits has been raised.

38. We therefore do not find any merit in the petition, which is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE MAY 28, 2015 „bs‟