Delhi High Court
Malla Reddy Institute Of Medical ... vs Union Of India And Anr on 29 September, 2015
Author: G. Rohini
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: September 29, 2015
+ W.P.(C) 7106/2015 & CM No.13029/2015
MALLA REDDY INSTITUTE OF
MEDICAL SCIENCES AND ANR ..... Petitioners
Versus
UNION OF INDIA AND ANR ..... Respondents
+ W.P.(C) 8541/2015 & CM No.18391/2015
LORD BUDDHA SIKSHA
PRATISTHAN AND ANR ..... Petitioners
Versus
UNION OF INDIA AND ANR ..... Respondents
Present:- Mr.Nidhesh Gupta, Sr.Adv. with Mr.Amit Kumar,
Mr.Ramesh Allanki, Mr. Ankit Rajgarhia, Mr.Avijit
Mani Tripathi, Advs. for the petitioner in W.P.(C)
No.7106/2015.
Mr. Ashish Kumar with Mr. Avijit Mani Tripathi, Advs.
for the petitioner in W.P.(C) No.8541/2015
Mr.Rakesh Kumar, CGSC for UOI in CWP
No.7106/2015.
Mr.Vikas Singh, Sr.Adv. with Mr.T.Singhdev,
Ms.Biakthansangi, Ms.Puja Sarkar, Advs. for R-2/MCI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
MS. G. ROHINI, CHIEF JUSTICE:
1. Whether an opportunity to rectify the defects/deficiencies specified by
the Medical Council of India need be provided to the applicant under
Section 10-A(3) and/or 10-A(4) of the Indian Medical Council Act, 1956
(for short „the Medical Council Act‟) in cases which fall within the ambit of
the provisos (a) to (d) to Regulation 8(3)(1) of the Establishment of Medical
College Regulations, 1999 (for short „the Regulations‟) is the issue that falls
for consideration by us.
Reference to the Full Bench:
2. W.P.(C) No.5041/2015 titled Shree Chhatrapati Shivaji Education
Society & Anr. v. Union of India & Anr. was filed by a Medical College
whose request for grant of permission for third renewal for the Academic
Year 2015-16 was rejected by the Central Government on the basis of the
recommendation of the Medical Council of India by letter dated 11.05.2015
recommending not to renew the permission for the said College. The
admitted facts were that the Medical College was inspected on 14th and 15th
November, 2014 and on consideration of the deficiencies noted, MCI having
decided to apply the proviso (b) to Regulation 8(3)(1) of the Establishment
of the Medical College Regulations recommended to the Central
Government by letter dated 22.12.2014 not to renew the permission for the
Academic Year 2015-16. The Central Government while communicating
the said decision of the MCI to the petitioner Medical College granted an
opportunity of hearing in terms of the proviso to Section 10-A of the
Medical Council Act. In the hearing, the petitioner reported compliance of
the deficiencies pointed out by MCI and therefore the Central Government
by letter dated 17.04.2015 asked the MCI to review the compliance reported
by the petitioner College and furnish its recommendation. However, by
letter dated 11.05.2015, the MCI reiterated its earlier recommendation not to
renew the permission stating that in view of the proviso (b) to Regulation
8(3)(1) of the Regulations, there is no provision to grant any opportunity for
rectification of substantial deficiencies found in the earlier inspection.
Aggrieved by the same, the Medical College approached this Court by
challenging the proviso (b) to Regulation 8(3)(1). The petitioner therein
also prayed to set aside the recommendation of MCI dated 11.05.2015. The
said writ petition was dismissed by a Division Bench to which one of us
(Chief Justice) is a member by order dated 28.05.2015 holding:
"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, in spite 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 in spite 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 fulfil 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 in spite thereof permission is
granted would result in the college producing half-baked and
poor quality doctors." (emphasis supplied)
3. Identical orders of rejection of renewal of permission passed by the
Central Government on the basis of the proceedings of MCI reiterating its
earlier recommendation for rejection of renewal and declining to undertake
compliance verification inspection on application of the provisos to
Regulation 8(3)(1) of the Regulations came to be challenged before this
Court by several other medical colleges which included
W.P.(C)No.6699/2015 titled Career Institute of Medical Sciences And
Hospitals & Anr. Vs. Union of India & Anr.; W.P.(C) No.7106/2015 titled
Malla Reddy Institute of Medical Sciences & Anr. Vs. Union of India & Anr.
and W.P.(C) No.8541/2015 titled Lord Buddha Siksha Pratisthan & Anr. Vs.
Union of India & Anr.
4. In Career Institute of Medical Sciences and Hospitals (supra),
despite being asked by the Central Government to conduct a fresh inspection
for compliance verification, MCI declined to conduct fresh inspection and
reiterated its earlier decision to recommend not to renew the permission for
the Academic Year 2015-16 and 2016-17 on application of the proviso (b) to
Regulation 8(3)(1). The Central Government by proceedings dated
15.06.2015 accepted the recommendation of the MCI and aggrieved by the
same, the college approached this Court. It was contended on behalf of the
petitioner therein that since the ratio laid down by the Supreme Court in
Swamy Devi Dayal Hospital and Dental College Vs. Union of India (2014)
13 SCC 506 was not considered by the Division Bench while deciding Shri
Chhatrapati Shivaji Education Society vs. Union of India (Supra), the
judgment therein is per incuriam and therefore is not binding. It was also
contended that in the light of the ratio laid down in Swamy Devi Dayal
(supra), an opportunity to rectify the deficiency is mandatory at two stages,
namely, at the level of MCI after the scheme is submitted to MCI under
Section 10-A(2) and again at the level of Central Government at the time
when it has to take final decision after the receipt of the recommendation
sent by MCI and, therefore, it is not open to MCI to contend that it is not
necessary to give an opportunity for rectification of the substantial
deficiencies specified by MCI in cases where the provisos to Regulation
8(3)(1) are applied.
5. Taking note of the fact that the decision of the Supreme Court in
Swamy Devi Dayal (supra) was not cited before the Division Bench while
deciding Chhatrapati Shivaji (supra), the Division Bench (Comprising
Chief Justice and Jayant Nath, J.) passed an interim order dated 05.08.2015,
observing as under:
"20. Admittedly, the decision of the Supreme Court in
Swamy Devi Dayal Hospital and Dental College (supra)
was not cited before the Division Bench and the above
conclusion in Chhatrapati Shivaji (supra) was arrived at
without taking note of the ratio laid down therein with
regard to the adherence to the principles of natural justice
under Section 10A(4) of the Act in the event the Central
Government proposes to disapprove the scheme. Though
there was no reference to a provision similar to
Regulation 8(3)(1) of the Regulations, having regard to
the settled legal position that statutory Regulations
cannot be in conflict with the provisions of the parent
Act, it appears to us that the ratio laid down in Swamy
Devi Dayal Hospital and Dental College (Supra) applies
to all cases of rejection including rejection on application
of proviso (a) to (d) of Regulation 8(3)(1).
21. Therefore, it appears to us that the matter requires
reconsideration in the light of the ratio laid down in
Swamy Devi Dayal Hospital and Dental College
(Supra)."
6. Subsequently, when W.P.(C) No.7106/2015 titled Malla Reddy
Institute of Medical Sciences & Anr. Vs. Union of India & Anr. and
W.P.(C) No.8541/2015 titled Lord Buddha Siksha Pratisthan & Anr. Vs.
Union of India & Anr. came up for consideration, Shri Nidhesh Gupta, the
learned Senior Counsel appearing for the petitioners relied upon the
judgment dated 20.08.2015 of a three-Judge Bench of the Supreme Court in
Royal Medical Trust (Regd.) and Another. vs. Union of India and Another
(Writ Petition (C) No. 705/2014) wherein while reiterating the ratio laid
down in Swamy Devi Dayal Hospital (supra) it was held:
"23. While considering the Scheme under Section 10A
of the Act, the MCI and the Central Government are
required to have due regard to the factors referred to in
sub-section (7) thereof. If the initial Scheme itself is
found to be defective or is to be disapproved, sub-section
(3)(a) and proviso to sub-section (4) of Section 10A
oblige the MCI and the Central Government respectively
to grant to the applicant reasonable opportunity to rectify
the defects and of being heard. The Statue thus
recognizes that before any adverse decision is taken as
regards the Scheme, the applicant must be afforded
reasonable opportunity. This facet has been considered
by this Court while dealing with issues under Section
10A of the Dentists Act in Swamy Devi Dayal. It was
laid down that the requirement of following the
principles of natural justice is available at two stages,
first where the Dental Council of India finds deficiencies
during its inspection and secondly at the level of the
Central Government before it passes any adverse orders
after receipt of the recommendations by the Dental
Council of India. The observations in Swamy Devi
Dayal while considering provisions of Section 10A of the
Dentists Act which are pari materia with Section 10A of
the Act, must apply with equal force in relation to cases
under the Act............ .. "
7. In the light of the law laid down in Swamy Devi Dayal (supra) and
Royal Medical Trust (supra), the Division Bench having opined that the
decision in Shree Chhatrapati Shivaji (supra) requires reconsideration, by
order dated 11.09.2015 referred the matter to a Larger Bench.
8. As mentioned above, the core issue that falls for consideration by the
Full Bench is as to whether in cases where the provisos (a) to (d) to
Regulation 8(3)(1) are invoked, no opportunity of personal hearing and/or
opportunity to rectify the deficiencies need be provided to the applicant
under Section 10-A(3) and/or Section 10-A(4) of the Medical Council Act.
9. Before proceeding further, it is necessary to notice the legal position
relating to grant of permission for establishment/renewal of Medical
Colleges.
Indian Medical Council Act, 1956 and the Regulations made
thereunder:
10. The Medical Council Act was enacted to provide for the
reconstitution of the Medical Council of India and maintenance of a Medical
Register for India and the matters connected therewith. Section 3 of the
Medical Council Act provides that the Central Government shall constitute a
Council consisting of the members specified therein and as per Section 6,
the Council so constituted shall be a body corporate by the name of the
Medical Council of India (MCI). It is not in dispute that MCI is an expert
body constituted under the Medical Council Act to prescribe and to control
the minimum standards of medical education and to regulate their
observance. Section 33 of the Medical Council Act empowers MCI to make
regulations, with the previous sanction of the Central Government, to carry
out the purpose of the Act and also to provide inter alia for the courses and
period of study and of practical training to be undertaken, the subjects of
examination and standards of proficiency therein to be obtained in
Universities or medical institutions for grant of recognized medical
qualifications; the standards of staff, equipment, accommodation, training
and other facilities for medical education and the conduct of professional
examinations, qualifications of examiners and the conditions of admission to
such examinations.
11. The major amendments made to the Medical Council Act included the
amendment by Act 31 of 1993 w.e.f. 27.08.1992 by incorporating Sections
10-A to 10-C specifically providing for prior permission of the Central
Government for establishing any new Medical College and for starting any
new or higher courses of study or increasing admission capacity in any
course of study or training including post-graduate course of study in any
existing Medical College.
12. Section 10-A with which we are concerned in the present case reads
as under:
"10A. PERMISSION FOR ESTABLISHMENT OF
NEW MEDICAL COLLEGE, NEW COURSE OF
STUDY ETC. (1) Notwithstanding anything contained in
this Act or any other law for the time being in force,-
(a) no person shall establish a medical college; 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.
Explanation 1 - For the purposes of this section, "person"
includes any University or a trust but does not include the
Central Government.
Explanation 2 - For the purposes of this section, "admission
capacity" in relation to any course of study or training
(including 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 to such course or training.
(2) (a) Every person or medical college shall, for the purpose
of obtaining permission under sub-section (1), submit to the
Central Government a scheme in accordance with the
provisions of clause (b) and the central Government shall
refer the scheme to the Council for its recommendations.
(b) The Scheme referred to in clause (a) shall be in such
form and contain such particulars and be preferred in such
manner and be accompanied with such fee as may be
prescribed.
(3) On receipt of a scheme by the Council under
sub-section (2) the Council may obtain such other
particulars as may be considered necessary by it from
the person or the medical college concerned, and
thereafter, it may -
(a) if the scheme is defective and does not contain any
necessary particulars, give a reasonable opportunity to
the person or college concerned for making a written
representation and it shall be open to such person or
medical college to rectify the defects, if any, specified by
the Council;
(b) consider the scheme, having regard to the factors
referred to in sub-section (7), and submit the scheme
together with its recommendations thereon to the
Central Government.
(4) The Central 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 called for by the
Council, or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations
under clause (b) of sub-section (3) and the Central
Government, while passing an order, either approving or
disapproving the scheme under sub-section (4), shall
have due regard to the following factors, namely:-
(a) whether the proposed medical college or the existing
medical college seeking to open a new or higher course of
study or training, would be in a position to offer the
minimum standards of medical education as prescribed
by the Council under section 19A or, as the case may be,
under section 20 in the case of postgraduate medical
education;
(b) whether the person seeking to establish a medical
college or the existing medical college seeking to open a
new or higher course of study or training or to increase
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 supplied)
13. Section 33 of the Medical Council Act has also been amended by Act
31 of 1993 w.e.f. 27.08.1992 thereby inserting Clauses (fa) to (fc) and thus,
empowering MCI to make Regulations providing for the form of the scheme
under Section 10-A(2), the particulars to be given in such scheme and etc. In
exercise of the power so conferred under Section 33 and Section 10-A of the
Medical Council Act, MCI made Regulations called the Establishment of
Medical College Regulations, 1999. Regulation 3 gives details of the
scheme for obtaining permission of the Central Government to establish a
medical college and provides that all applications under the scheme shall be
made in Form-I prescribed therein which under Part II requires to furnish
details of the medical college including "Manpower Programme", i.e.
requirements of teaching staff, technical staff, administrative staff, salary
structure and etc. Similarly, Part III requires to furnish details of existing
hospitals including bed strength, bed distribution, built-up area, clinical and
para-clinical disciplines and etc. Regulation 7 stipulates that after
examining the application and after conducting necessary physical
inspection, the MCI should send a factual report to the Central Government
and that its recommendation shall be in Form-IV. Regulation 8 which
relates to grant of permission provides inter alia that the permission granted
under Section 10-A(4) may include a time bound programme for the
establishment of a medical college and expansion of the hospital facilities.
Regulation 8(3) further makes it clear that the permission to establish a
medical college and admit students would be granted initially for a period of
one year and it would be renewed on early basis 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 and
that the application for renewal has to be made by the institution six months
prior to the expiry of the initial permission. It is also provided 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.
14. The said Regulations were amended by the Establishment of Medical
College Regulations (Amendment), 2010 (Part-II) which came into force
w.e.f. 16.04.2010. By virtue of the said Amendment, Regulation 8(3) was
amended by insertion of provisos (a) to (d) to Regulation 8(3)(1).
Regulation 8 as amended by the Amendment dated 16.04.2010 reads as
under:
"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) (1) 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.
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.
(c) Colleges which are already recognized for award
of M.B;B.S. degree and/or running Postgraduate
Courses:
If it is observed during any regular inspection of the
institute that the deficiency of teaching faculty and/or
Residents is more than 10% and/or bed occupancy is
<80 %, such an institute will not be considered for
processing applications for postgraduate courses in
that Academic Year and will be issued show cause
notices as to why the recommendation for withdrawal
of recognition of the courses run by that institute
should not be made for Undergraduate and
Postgraduate courses which are recognized u/s 11(2)
of the IMC Act, 1956 along with direction of stoppage
of admissions in permitted Postgraduate courses.
(d) Colleges which are found to have employed
teachers with faked / forged documents:
If it is observed that any institute is found to have
employed a teacher with faked / forged documents
and have submitted the Declaration Form of such a
teacher, such an institute will not be considered for
renewal of permission / recognition for award of
M.B.B.S. degree / processing the applications for
postgraduate courses for two Academic Years - i.e.
that Academic Year and the next Academic Year also.
However, the office of the Council shall ensure that such
inspections are not carried out at least 3 days before upto
3 days after important religious and festival holidays
declared by the Central/State Govt.
(2) The recognition so granted to an Undergraduate
Course for award of MBBS degree shall be for a
maximum period of 5 years, upon which it shall have to
be renewed.
(3) The procedure for "Renewal" of recognition shall be
same as applicable for the award of recognition.
(4) Failure to seek timely renewal of recognition as
required in sub-clause (a) supra shall invariably result in
stoppage of admissions to the concerned Undergraduate
Course of MBBS at the said institute."
(4) The council may obtain any other information from the
proposed medical college as it deems fit and necessary."
(emphasis supplied)
15. In terms of the provisos (a) to (d) to Regulation 8(3)(1) inserted by
Amendment dated16.04.2010, if the medical college is found to have the
deficiencies specified in the said provisos, it will not be considered for
renewal of permission for that academic year or two academic years. As per
proviso (a) to Regulation 8(3)(1), if a medical college, during any regular
inspection, is found to have deficiency of teaching faculty and/or Residents,
being more than 30% and/or the bed occupancy is found to be less than
60%, such an institute will not be considered for renewal of permission for
that Academic Year. Similarly, by virtue of proviso (b) to Regulation
8(3)(1) which is applicable to any institution which is at the stage of third
renewal of permission, if a medical college is found to have deficiency of
teaching faculty and/or Residents being more than 20% and/or the bed
occupancy is found to be less than 70% such an institute will not be
considered for renewal of permission for that academic year. Coming to the
proviso (c) to Regulation 8(3)(1), the same is applicable to medical colleges
which are already recognized for award of MBBS degree and/or is running
post-graduate courses. As per the said proviso during any regular
inspection, if such a medical college is found to have deficiency of teaching
faculty and/or Residents being more than 10% and/or the deficiency of bed
occupancy is found to be less than 80%, such an institute will not be
considered for processing its application for starting post-graduate courses
for that academic year and will be issued a show cause notice as to why the
action specified therein shall not be taken. So far as proviso (d) to
Regulation 8(3)(1) is concerned, the same deals with a situation where a
medical college, during an inspection, is found to have employed teaching
faculty with fake/forged documents and in such an event, the college will
not be considered for permission for the next two academic sessions.
Contentions:
16.1 It is submitted by Shri Nidhesh Gupta, the learned Senior Counsel
appearing for the petitioners that the judgment of the Division Bench of this
Court in Shree Chhatrapati Shivaji (supra) in holding that Section 10-A(3)
of the Medical Council Act vests a discretion in the MCI to give an
opportunity to the applicant to give further particulars or to make a
representation or to rectify the defects is contrary to the ratio laid down by
the Supreme Court in Swamy Devi Dayal (supra).
16.2 In support of the said submission, the learned senior counsel has also
placed reliance upon the recent decision in Royal Medical Trust (supra)
rendered by a three-Judge Bench of the Supreme Court reiterating the ratio
laid down in Swamy Devi Dayal (supra).
16.3 Placing much reliance on the said two decisions, it is contended by
the learned Senior Counsel that providing an opportunity to rectify the
deficiencies specified by MCI is mandatory both under sub-section (3) and
sub-section (4) of Section 10-A of the Medical Council Act.
16.4 It is further contended that the provisos (a) to (d) to Regulation
8(3)(1) travel beyond the scheme of Section 10-A of the Medical Council
Act inasmuch as the said provisos vested the power with the MCI to
conclude that the concerned institute will not be considered for renewal for
that Academic Year or for two academic years. The learned Senior Counsel
contends that the provisos (a) to (d) thus virtually interdicted the exercise of
power by the Central Government under Section 10-A(1) read with Section
10-A(4) to grant permission for establishment/renewal of medical colleges.
16.5 The learned Senior Counsel would also contend that the opportunity
provided under Section 10-A(3) and (4) of the Medical Council Act to
rectify the deficiencies cannot be taken away by the provisos to Regulation
8(3)(1) since the law is well-settled that statutory Regulations cannot be in
conflict with the provisions of the parent Act.
16.6 It is also pointed out by the learned Senior Counsel that the second
limb of Regulation 7 which expressly provides for „Reconsideration‟
obligates MCI to conduct an inspection for compliance verification if so
directed by the Central Government.
17.1 Per contra, it is contended by Shri Vikas Singh, the learned Senior
Counsel appearing for the MCI that the opportunity provided under sub-
section (3) of Section 10-A to the applicant/institution to rectify the defects,
if any, specified by the MCI relates to rectification of paper-deficiencies
found during the scrutiny of the scheme submitted. In other words, the
opportunity contemplated therein is prior to the physical inspection only.
17.2 It is further contended that the opportunity provided under sub-section
(4) of Section 10-A is only an opportunity of hearing by the Central
Government and that the same does not include an opportunity to the
applicant/institution to rectify the deficiencies found by the MCI during the
inspection.
17.3 It is sought to be explained by the learned Senior Counsel that the
opportunity to rectify deficiencies provided under Regulation 8(3)(1), as a
part of hearing process by the Central Government, which was initially
unrestricted has been rightly limited by virtue of the amendment to the
Regulations dated 16.04.2010 to ensure that the institutions throughout the
year provide complete infrastructure, teaching faculty, residents, clinical
materials and other physical facilities in the medical colleges so as to
provide the best of teaching and training to the students.
17.4 The said amendment brought out to the Regulations with the previous
sanction of the Central Government as provided under Section 33 of the
Medical Council Act cannot be held to have curtailed the powers conferred
on the Central Government under the parent Act in any manner whatsoever.
17.5 The conclusion of the Division Bench in Shree Chhatrapati Shivaji
(Supra) that the provisos to Regulation 8(3)(1) had merely limited the
discretion vested with the Central Government to grant an opportunity of
hearing and time to rectify deficiencies but in no way excluded the said right
is in accordance with the settled principles of law and warrants no
reconsideration.
17.6 While submitting that the provisions of sub-section (4) of Section
10-A of the Medical Council Act does not provide for giving an opportunity
to rectify the deficiencies specified by MCI but the same has been provided
only under the Regulations, it is contended by the learned Senior Counsel
that the power so conferred on the Central Government under Regulation
8(3)(1) has been restricted by way of the provisos (a) to (d) and the same
cannot be held to be illegal since the law is well settled that where a statute
confers a discretion in a statutory body or the Central Government, it also
empowers them to limit such discretion.
17.7 The judgment of Swamy Devi Dayal (supra) has no bearing on the
interpretation of Regulation 8(3)(1) as amended on 16.04.2010, since in the
said case the Supreme Court was dealing with the provisions of the Dentist‟s
Act, 1948 under which no Regulations are made relatable to the
Establishment of Medical Colleges Regulations, 1999.
17.8 Similarly, in Royal Medical Trust (supra) also, the Supreme Court
was not dealing with a case wherein the provisos to Regulation 8(3)(1) of
the Regulations had been invoked. All the cases which were considered in
the said decision were the cases where MCI did not conduct inspections for
compliance verification de hors the provisos to Regulation 8(3)(1) on
account of time constraints for that academic year.
17.9 Thus, the learned Senior Counsel seeks to distinguish both Swamy
Devi Dayal (supra) and Royal Medical Trust (supra).
18. Rebutting the contentions of MCI, it is submitted by the learned
Senior counsel appearing for the petitioners that the opportunity provided
under Section 10-A(3) as interpreted by the Supreme Court in Royal
Medical Trust (supra) is not limited to an opportunity to rectify the paper
deficiencies found in the scheme but it includes an opportunity to rectify the
deficiencies even after physical inspection. To substantiate the said
submission, the learned Senior Counsel while drawing the attention of this
Court to sub-section (7) of Section 10-A which provides for the factors that
are required to be taken into consideration by MCI while making its
recommendations under sub-section (3) of Section 10-A, contended that
several factors specified therein cannot be made out in the absence of
physical inspection. The learned Senior Counsel has also relied upon Form-
IV prescribed under the Regulations in which the MCI has to submit its
recommendations after physical inspection.
Consideration:
19. The principal ground upon which the vires of the proviso (b) to
Regulation 8(3)(1) was impugned in Shree Chhatrapati Shivaji (supra) was
that the said provision is in contravention of the scheme of Section 10-A of
the Medical Council Act inasmuch as it prohibits consideration of the
application for renewal upon finding the deficiencies specified in the proviso
without giving an opportunity to the applicant in terms of Section 10-A.
20. In view of the expression "may" employed in Section 10-A(3) and for
other reasons assigned therein, the Division Bench opined that the
opportunity provided under sub-section (3) of Section 10-A, i.e. at the stage
of consideration of the scheme by MCI, is only discretionary and there is no
mandate that the MCI shall specify the defects in the scheme and give an
opportunity to rectify the same. So far as the consideration by the Central
Government under sub-section (4) of Section 10-A is concerned, i.e. on
receipt of the recommendations of MCI, the Division Bench though held
that Section 10-A(4) vests a right of reasonable hearing in the applicant
before the scheme is disapproved, opined that there is an element of
discretion in the Central Government as to the extent of such hearing.
21. Having proceeded on the said premise, the Division Bench held that
the provisos (a) to (d) of Regulation 8(3)(1), instead of taking away any
right vested by Section 10-A(3) and (4) in the applicant, limit the discretion
vested in the MCI and Central Government to give an opportunity for
rectification of the deficiencies. It was thus concluded that the provisos (a)
to (d) to Regulation 8(3)(1) laying down the deficiencies for rectification of
which no opportunity need be given either by the MCI or by the Central
Government cannot be held to be ultra vires Section 10-A(3) and (4).
22. The above-said conclusions of the Division Bench in Shree
Chhatrapati Shivaji (supra), according to the petitioners, are not in
conformity with the law laid down by the Supreme Court in Swamy Devi
Dayal (supra) and Royal Medical Trust (supra). It is pointed out by the
learned Senior Counsel appearing for the petitioners that the decision in
Swamy Devi Dayal (supra) wherein it was held that grant of opportunity of
being heard is mandatory at the stage of consideration by MCI under sub-
section (3) of Section 10-A and again at the stage of consideration by the
Central Government under sub-section (4) of Section 10-A, was not brought
to the notice of the Division Bench in Shree Chhatrapati Shivaji (supra),
thus resulting in a decision contrary to the law laid down by the Supreme
Court.
23. The decision in Swamy Devi Dayal (supra) is sought to be
distinguished by the learned Senior Counsel appearing for the MCI on two
grounds, namely, (i) that the Supreme Court in Swamy Devi Dayal (supra)
was dealing with the provisions of a different enactment, i.e. Dentists Act,
1948; and (ii) that neither the provisions of Regulation 8(3)(1) of
Establishment of Medical College Regulations, 1999 nor any other provision
relatable to the said Regulations were the subject matter of the issue under
consideration in Swamy Devi Dayal (supra).
24. On merits, it is contended that neither sub-section (3) nor sub-section
(4) of Section 10-A of the Medical Council Act provides for an opportunity
to the applicant to rectify the deficiencies specified by MCI on physical
inspection and, therefore, the contention of the petitioners that denial of an
opportunity to rectify the deficiencies on application of provisos (a) to (d) to
Regulation 8(3)(1) is contrary to the scheme of Section 10-A of the Act, is
misconceived and untenable.
25. Elaborating the said contention, Shri Vikas Singh, the learned senior
counsel appearing for MCI submitted that the opportunity provided under
Section 10-A(3) is only with reference to the defects found during the
scrutiny of the scheme submitted and, therefore, the question of providing an
opportunity to rectify the deficiencies specified after physical inspection
does not arise at that stage. According to him, no such opportunity to rectify
the deficiencies need be provided even under Section 10-A(4) since the
proviso to Section 10-A(4) contemplates only a "reasonable opportunity of
being heard" but not an opportunity to rectify the defects.
26. We may at the outset mention that though the Supreme Court in
Swamy Devi Dayal (supra) was dealing with the permission for starting a
Post-Graduation course in a Dental College and thus was considering the
provisions of Dentist‟s Act, 1948, the provisions of the said Act are pari
materia to the provisions of the Medical Council Act, particularly, Section
10-A providing for permission for establishment of new College, new course
of study, etc. Therefore, the law laid down therein is equally applicable to
the interpretation of Section 10-A of the Medical Council Act. Considering
the very same issue in Royal Medical Trust (supra), it was made clear by
the Supreme Court that the observations in Swamy Devi Dayal (supra)
while considering provisions of Section 10-A of the Dentist‟s Act which are
pari materia with Section 10-A of the Medical Council Act must apply with
equal force in relation to cases under the Medical Council Act.
27. It is no doubt true that in Swamy Devi Dayal (supra) and Royal
Medical Trust (supra), the Supreme Court was not concerned with any
provision relatable to Regulation 8(3)(1) of the Regulations. However, the
law is well settled that the Rules or Regulations made on matters permitted
by the statute cannot override either the provisions of the statute or the
object and scheme of the same. Therefore, the requirement of adherence to
the principles of natural justice under Section 10-A(3) and 10-A(4) of the
Medical Council Act cannot limited or excluded on any ground whatsoever
and no exception can be carved out even with regard to the institutions in
respect of which the provisos (a) to (d) of Regulation 8(3)(1) are invoked.
Hence, the distinction sought to be drawn by Sh.Vikas Singh on the ground
that in Swamy Devi Dayal (supra), the Supreme Court was not concerned
with Regulation 8(3)(1) cannot be accepted.
28. We also do not find any substance in the contention advanced by
Sh.Vikas Singh, the learned Senior Counsel appearing for MCI that the
opportunity provided under Section 10-A(3) of the Medical Council Act
does not include rectification of deficiencies specified by MCI after physical
inspection.
29. Consideration of scheme by MCI under Section 10-A(3) of the
Medical Council Act as well as consideration of the scheme and the
recommendations of the MCI by the Central Government under sub-Section
(4) of Section 10-A for Medical Council Act, shall be having regard to the
factors referred to in sub-Section (7) of Section 10-A. The factors
enumerated in sub-Section (7) of Section 10-A, apart from adequate
financial resources and capacity to offer minimum standards of medical
education, included the following:
"(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;" (emphasis supplied)
30. That apart, Regulation 1 of the Establishment of Medical College
Regulations, 1999 provides that the scheme for permission under Section
10-A of the Act shall be submitted in Form-I annexed to the Regulations. A
perusal of Form-I shows that it is in 3 parts and Part-3 thereof specifically
provides for furnishing the details of upgradation and expansion programme
of the hospital including the details of the additional land for expansion of
the existing hospital, year-wise details of the additional clinical and para-
clinical disciplines, year-wise additional built-up area to be provided for
hospital, staff housing, staff and students hostels and other ancillary
buildings, upgraded manpower programme and phasing and scheduling of
the expansion of scheme. It is also relevant to note that Regulation 6
specifically provides that MCI while evaluating the application/scheme shall
carry out physical inspection to verify information supplied by the applicant.
Regulation 7 which deals with report of MCI further provides that MCI shall
send a factual report to the Central Government after examining the
application and after conducting necessary physical inspections. As per
Clause (8) of Regulation 7(a), it is also necessary for MCI to point out in its
factual report the deficiencies, if any in the infrastructure or faculty and
indicate whether the same are remediable or not. Regulation 7(d) provides
that the recommendation of MCI shall be in Form-IV annexed to the
Regulations and the contents of Form-IV reflect that the recommendation of
MCI has to be made only after physical inspections. It is also relevant to
note that under Regulation 8(1) to 8(3) the formal permission for
establishment of a new medical college may be granted initially for a period
of 1 year and the same may be renewed on yearly basis subject to
verification of the achievements of annual targets fixed by MCI to be
achieved during the following years.
31. On a combined reading of the above noticed provisions of the
Medical Council Act and the Regulations, the only conclusion that can be
arrived at is that the opportunity provided under Section 10-A(3)(a) to
rectify the defects specified by the MCI relates to the defects that are pointed
out by MCI after physical inspection but not mere paper-deficiencies found
in the scheme. This view of ours is fortified by the following observations
made by the Supreme Court in Royal Medical Trust (supra).
"24. The Scheme under Section 10A, with due regard to
the factors referred to in sub-section (7), may
contemplate putting in place necessary facilities at a later
point of time. Paragraphs 7(b) and 8(3) of the
Regulations also speak of defining and achieving annual
targets respectively. Naturally, it needs to be assessed
and verified whether such annual targets are achieved or
not. The timely assessment is integral to the Scheme
itself and the MCI and the Central Government are
therefore obliged and required to conduct renewal
inspections every year so as to ensure that the
establishment of the Medical College and expansion of
hospital facilities are completed in time and in
accordance with the Scheme.................."
32. Therefore, we are unable to agree with the contention that MCI is not
obligated before making its recommendation under Section 10-A(3) to give
an opportunity to the applicant to rectify the defects that are pointed out in
the physical inspection.
33. The further contention that the reasonable opportunity of being heard
provided under Section 10-A(4) of the Medical Council Act is limited only
to personal hearing and does not include the opportunity to rectify the
deficiencies specified by MCI, is equally untenable.
34. The proviso to sub-Section (4) of Section 10-A of the Medical
Council Act expressly provides for giving a reasonable opportunity of being
heard to the applicant in the event of disapproval of scheme by the Central
Government. The said opportunity has been held to be mandatory in Swamy
Devi Dayal (supra) as well as Royal Medical Trust (supra). What is
„reasonable opportunity of being heard‟ has been explained in Swamy Devi
Dayal (supra) as under:-
"22.3. The expression "opportunity of being heard"
occurring in this proviso would mean that the material
that goes against the applicant and is to be taken into
consideration, is to be supplied to the applicant within an
opportunity to make representation. For this purpose
either the report of DCI itself can be supplied or at least
the deficiencies pointed out in the report have to be
communicated by the Central Government to the
applicant with an opportunity to furnish its comments
thereupon. At that stage while giving its reply, if the
applicant claims personal hearing, such a personal
hearing should also be accorded."
35. According to the learned Senior Counsel for MCI, none of the
provisions of the Medical Council Act provides for giving an opportunity to
rectify the deficiencies much less inspection by MCI for compliance
verification.
36. Clause (a) of Sub-Section (3) of Section 10-A expressly provides for
giving 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 MCI. We have
already held that the opportunity to rectify the defects provided therein is not
confined to rectification of paper-deficiencies found in the scheme submitted
under Section 10-A(2) but it also includes the deficiencies that are pointed
out by MCI after physical inspection.
37. So far as Section 10-A(4) is concerned, it is true that the proviso
merely provides for „a reasonable opportunity of being heard‟. However,
Regulation 8(3)(1) of the Regulations made by MCI in exercise of the power
conferred under Section 33 read with Section 10-A of the Medical Council
Act expressly provides for giving an opportunity and time to the applicant to
rectify the deficiencies. This itself makes clear the legislative intent to
provide opportunity and time to the applicant to rectify the deficiencies at
the stage of consideration of scheme by the Central Government under
Section 10-A(4). It is not in dispute that the said Regulations made by MCI
with the previous sanction of the Central Government have statutory force
and are equally applicable to the scheme contemplated under the Medical
Council Act. Therefore, we are of the view that giving an opportunity to
rectify the deficiencies is an integral part of the opportunity of being heard
provided under sub-Section (4) of Section 10-A of the Medical Council Act.
In fact, it is a part of hearing process provided under Section 10-A(4).
38. Coming to the question whether an opportunity to rectify the
defects/deficiencies specified by MCI need be provided to the applicant in
cases which fall within the ambit of the provisos (a) to (d) to Regulation
8(3)(1), the contention of MCI is that provisos (a) to (d), which create an
absolute bar on renewal of permission, carve out an exception to the
requirement of opportunity provided under Section 10-A(3) & (4) and
therefore in cases where the provisos (a) to (d) are invoked, MCI is not
obliged to undertake a compliance verification inspection.
39. Under the scheme of Section 10-A of the Medical Council Act, the
Central Government is the authority which is vested with the power to grant
permission for establishment of new medical college as well as grant of
renewal whereas MCI works as a recommendatory body and plays an
important role in deciding whether sanction as required under Section 10-
A(1) be granted.
40. There can be no dispute with regard to the authority of MCI to take
various measures to ensure maintenance of proper standards in medical
institutions. While referring to the power conferred on MCI under Section
33 of the Medical Council Act to make regulations to carry out the purposes
of the Act, particularly, to make Regulations providing for clauses (j) to (n)
of Section 33, the Supreme Court in State of M.P. vs. Nivedita Jain (1981)
4 SCC 296 observed:
"18. An analysis of the various sections of the Act indicate that
the main purpose of the Act is to establish Medical Council of
India, to provide for its constitution, composition and its
functions; and the main function of the Council is to maintain
the medical register of India and to maintain a proper standard
of medical education and medical ethics and professional
conduct for medical practitioners. The scheme of the Act
appears to be that the Medical Council of India is to be set up in
the manner provided in the Act and the Medical Council will
maintain a proper medical register, will prescribe minimum
standards of medical education required for granting recognised
medical qualifications, will also prescribe standards of
postgraduate medical education and will further regulate the
standards of professional conduct and etiquette and code of
ethics for medical practitioners. The Act further envisages that
if it appears to the Council that the courses of study and
examination to be undergone in, or the proficiency required
from candidates at any examination held by any university or
medical institution do not conform to the standard prescribed by
the Council or that the staff, equipment, accommodation,
training and other facilities for instructions and training
provided in such university or medical institution or in any
college or other institution affiliated to that university do not
conform to the standards prescribed by the Council, the Council
will make a representation to that effect to the Central
Government and on consideration of the representation made by
the Council, the Central Government may take action in terms
of the provisions contained in Section 19 of the Act. The Act
also empowers the Council to take various measures to enable
the Council to judge whether proper medical standard is being
maintained in any particular institution or not."
41. The same has been reiterated in Medical Council of India v. State of
Karnataka, (1998) 6 SCC 131 and Manohar Lal Sharma v. Medical
Council of India, (2013) 10 SCC 60.
42. Being an expert body to control the minimum standards of medical
education and to regulate their observance, MCI is well within the power
conferred under Section 33 of the Medical Council Act in inserting the
provisos (a) to (d) to Regulation 8(3)(1) to the effect that the institutes which
are found to have the deficiencies specified therein will not be considered
for renewal of permission for that academic year/two academic years.
However, the question is whether the decision to invoke the provisos (a) to
(d) can be taken without giving an opportunity of being heard to the institute
concerned.
43. As held in Swamy Devi Dayal (supra), non-renewal of permission to
an institution involves civil consequences of grave nature barring the
applicant to enrol fresh students in that academic year. Therefore, before
imposing such a bar, the principles of natural justice require providing a
reasonable opportunity of being heard to the institute concerned against the
proposed action. This is also essential to check arbitrary exercise of power
by MCI. The law is well settled that unless a statutory provision either
specifically or by necessary implication excludes the application of
principles of natural justice, it is essential to give a reasonable opportunity of
being heard to the party affected when the order has adverse civil
consequences. Since the principles of natural justice have been expressly
included in the provisions of Section 10-A as well as Regulation 8(3)(1),
such an opportunity cannot be taken away by way of subordinate legislation.
The power to make subordinate legislation is derived from the enabling Act
and it is fundamental principle of law which is self-evident that the delegate
on whom such power is conferred has to act within the limitations of the
authority conferred by the Act. It is equally well settled that rules made on
matters permitted by the Act in order to supplement the Act and not to
supplant the Act, cannot be held to be in violation of the Act. A delegate
cannot override the Act either by exceeding the authority or by making
provisions inconsistent with the Act. (Vide: J.K.Industries Ltd. v. Union of
India (2007) 13 SCC 673). It is also explained in St. John's Teachers
Training Institute v. Regional Direction, NCTE (2003) 3 SCC 321:-
"10. A regulation is a rule or order prescribed by a
superior for the management of some business and
implies a rule for general course of action. Rules and
regulations are all comprised in delegated legislations.
The power to make subordinate legislation is derived
from the enabling Act and it is fundamental that the
delegate on whom such a power is conferred has to act
within the limits of authority conferred by the Act. Rules
cannot be made to supplant the provisions of the enabling
Act but to supplement it........."
44. As already mentioned above, in Swamy Devi Dayal (Supra) while
analysing the purport of Section 10-A of the Dentist‟s Act, the Supreme
Court highlighted the need for adherence to the principles of natural justice
included therein as under:-
"12. ............. We are, therefore, of the opinion that the cases of
renewal cannot be excluded from the provisions of Section 10-
A of the Act. It was not disputed before us that when the
petitioner College applied for renewal of the permission, the
application was processed in accordance with the procedure laid
down in Section 10-A. As per this procedure, when a request is
received in the form of a requisite scheme, as required in sub-
section (2) of Section 10-A of the Act, the same is to be
processed in the manner provided under sub-section (3) thereof.
Once it is found by DCI that all the parameters for granting
permission are met, it recommends the grant of approval of the
scheme to the Central Government. In case a scheme is found
to be deficient, sub-section (3)(a) of Section 10-A of the Act
casts an obligation on the part of DCI to give a reasonable
opportunity for making a written representation and also to
rectify the deficiencies, any, specified by DCI. After the
recommendation is sent by DCI to the Central Government,
Central Government is required to process the same in
accordance with the procedure contained in sub-section (4) of
Section 10-A. It can either approve or disapprove the scheme.
However, in case the Central Government is proposing to
disapprove the scheme, a final decision in this behalf can be
taken only after giving the person, authority or institution
concerned, a reasonable opportunity of being heard. This is the
mandate of the proviso to Section 10-A(4) of the Act.
Thus, the procedure prescribed in Section 10-A contains the
requirement of following this principle of natural justice at two
stages. In the first place, by DCI when it finds deficiencies
while examining the school in the second stage at the level of
the Central Government before it passes away adverse orders,
as it is the final administrative authority vested with powers to
pass such an order. The law, thus specifically requires that at
the stage of a decision by the Central Government, again an
opportunity of being heard is to be provided. This proviso,
thus, acknowledges the need of and confers a very valuable
right in favour of the petitioner."
45. In para-22.2, the legal position has again been summed up as under:-
"22.2. It contemplates grant of opportunity of being
heard at two stages. First stage would be at the level of
DCI after the scheme is submitted to DCI under sub-
section (2) of Section 10-A of the Act. Once it is found
by DCI that all the parameters for granting permission
are met, it recommends the grant of approval of the
scheme to the Central Government. In case a Scheme is
found to be deficient, sub-section (3)(a) of Section 10-A
of the Act casts an obligation on the part of DCI to give a
reasonable opportunity for making a written
representation and also to rectify the deficiencies, if any,
specified by DCI. Second stage of adherence to the
principles of natural justice is provided at the level of
Central Government at the time when it has to take final
decision, after the receipt of the recommendation sent by
DCI. This requirement of hearing is stipulated in proviso
to sub-section (4) of Section 10-A, in the event the
Central Government is proposing to disapprove the
scheme."
46. Admittedly, this legal position was not brought to the notice of the
Division Bench in Shree Chhatrapati Shivaji (supra). The Division Bench
therefore proceeded on the premise that the opportunity provided under
Section 10-A(3) & (4) is discretionary.
47. We have already held that the opportunity provided under sub-
Sections (3) & (4) of Section 10-A of the Medical Council Act includes an
opportunity to rectify the deficiencies specified by MCI after physical
inspection. Consequently, undertaking an inspection for compliance
verification forms part of the scheme under Section 10-A and MCI is
required to undertake such an inspection within the statutory time schedule.
While explaining the need for discharging the functions well within the
statutory confines as well as in conformity with the Schedule to the
Regulations, the three judge Bench of the Supreme Court in Royal Medical
Trust (Supra) enumerated the aspects that are required to be taken care of in
the Schedule as under:-
"27. ........ The MCI and the Central Government must
therefore show due diligence right from the day when the
applications are received. The Schedule giving various stages
and time limits must accommodate every possible eventuality
and at the same time must comply with the requirements of
observance of natural justice at various levels. In our view the
Schedule must ideally take care of:
(A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as
essentiality certificate, consent for affiliation and physical
features like land and hospital requirement. If an applicant fails
to fulfill these requirements, the application on the face of it,
would be incomplete and be rejected. Those who fulfill the
basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of
the MCI. By very nature such inspection must have an element
of surprise. Therefore sufficient time of about three to four
months ought to be given to the MCI to cause inspection at any
time and such inspection should normally be undertaken latest
by January. Surprise Inspection would ensure that the required
facilities and infrastructure are always in place and not
borrowed or put in temporarily.
(C) Intimation of the result or outcome of the inspection would
then be communicated. If the infrastructure and facilities are in
order, the concerned Medical College should be given requisite
permission/renewal. However if there are any deficiencies or
shortcomings, the MCI must, after pointing out the deficiencies,
grant to the college concerned sufficient time to report
compliance.
(D) If compliance is reported and the applicant states that the
deficiencies stand removed, the MCI must cause compliance
verification. It is possible that such compliance could be
accepted even without actual physical verification but that
assessment be left entirely to the discretion of the MCI and the
Central Government. In cases where actual physical verification
is required, the MCI and the Central Government must cause
such verification before the deadline.
(E) The result of such verification if positive in favour of the
Medical College concerned, the applicant ought to be given
requisite permission/renewal. But if the deficiencies still
persist or had not been removed, the applicant will stand
disentitled so far as the academic year is concerned."
48. In the light of the above discussion, we are of the view that it is
mandatory to provide to the applicant/institute concerned an opportunity to
rectify the defects/deficiencies specified by MCI even in cases which fall
within the ambit of the provisos (a) to (d) to Regulations 8(3)(1) of the
Regulations.
49. It may be added that in fact, the contention of the MCI that the
provisos (a) to (d) carves out an exception to the power of the Central
Government to provide an opportunity and time to the applicant to rectify
the deficiencies and thus in cases where the said provisos are invoked, no
opportunity need be given to the applicant is based on an erroneous
interpretation of Regulation 8(3)(1) of the Regulations.
50. On a careful reading of Regulation 8(3)(1), it appears to us that what
is provided thereunder is grant of permission to establish a medical college
initially for a period of one year and the renewal of the same on yearly basis
subject to verification of the achievements of annual targets prescribed by
MCI under Regulation 8(2). It is no doubt true that Regulation 8(3)(1) also
states 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 contention of MCI that by virtue of
the provisos (a) to (d), an exception has been carved out to the power
conferred on the Central Government to provide an opportunity and time to
the applicant to rectify the deficiencies, is fallacious. We are afraid that this
is not the import of Regulation 8(3)(1). According to us, the provisos (a) to
(d) which imposed a bar on grant of renewal in the circumstances specified
therein would only work as an exception to the main part of Regulation
8(3)(1) specifying the process of renewal of permission on yearly basis but
not to the requirement of providing opportunity to rectify the deficiencies.
51. Therefore, we are of the view that it is not open to MCI and/or Central
Government to deny an opportunity to the applicant/institute concerned to
rectify the deficiencies specified by MCI even in cases which fall within the
ambit of the provisos (a) to (d) of Regulation 8(3)(1) of the Regulations.
However, it is essential for both MCI and Central Government to observe
the time schedule as held in Royal Medical Trust (supra).
52. For the aforesaid reasons, we hold that the provisos (a) to (d) to
Regulation 8(3)(1) of the Regulations shall not in any way circumvent the
opportunity of being heard/opportunity to rectify the deficiencies provided
under sub-Sections (3) and (4) of Section 10-A of the Medical Council Act.
However, the same shall be in strict adherence to the time Schedule fixed in
the Regulations and in conformity with the Schedule as laid down in Royal
Medical Trust (supra).
53. The reference is answered accordingly.
CHIEF JUSTICE
JAYANT NATH, J
V. KAMESWAR RAO, J
SEPTEMBER 29, 2015
kks/anb/pmc
