Delhi High Court
Chettinad Hospital And Research ... vs Union Of India & Anr on 18 April, 2018
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.04.2018
+ W.P.(C) 2252/2018
CHETTINAD HOSPITAL AND RESEARCH
INSTITUTE ..... Petitioner
Through Mr.Arun Bhardwaj, Sr. Adv. with
Mr.J.S. Bhasin, Adv. & Mr.Nishant
Shokeen, Adv.
versus
UNION OF INDIA & ANR ..... Respondents
Through Ms.Maninder Acharya, ASG with
Ms.Monika Arora, CGSC, Mr.Kushal
Kumar, Adv., Mr.Harshul Choudhary,
Adv., Mr.Sahil Sood, Adv. &
Mr.Viplav Acharya, Adv. for R-
1/UOI.
Mr.Vikas Singh, Sr. Adv. with
Mr.T.Singhdev, Adv., Mr.Tarun
Verma, Adv., Ms.Biakthan Singh
Das, Adv. & Ms.Puja Sarkar, Adv. for
R-2/MCI.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. Vide the present petition, the Petitioner/Institute has inter alia
impugned the decision dated 06.02.2018 taken by the Executive Committee
of the Respondent No. 2/Medical Council of India (hereinafter referred to as
"MCI"), recommending disapproval of the Petitioner's application/scheme
for increase in the number of MBBS seats from 150 to 250 seats, for the
academic year 2018-19. The Petitioner also prays for a direction to the
Respondent No. 2 to accept the Petitioner's application/scheme for increase
in the number of MBBS seats, in consonance with the directions issued by
the Respondent No. 1/Union of India vide its order dated 31.01.2018, and to
carry out all the necessary consequential steps, including inspection of the
Petitioner. The Petitioner further prays for a direction to the Respondent No.
2 to issue a letter of permission to the Petitioner, after giving it an adequate
opportunity to comply with the deficiencies, if any, found upon inspection.
2. The case set up by the Petitioner is that it is a medical college
established in 2006 and it became a constituent college of Chettinad
Academy of Research and Education (deemed to be a University under
Section 3 of the University Grants Commission Act, 1956) in 2008. The
Petitioner claims that it is situated in an area of 33.45 acres at
Kelambakkam, District Kanchipuram, Tamil Nadu and caters to the medical
needs of the surrounding villages, both in diagnostics and preventive and
curative services. Pursuant to a notification dated 11.12.2013 issued by the
Respondent No. 1 under Section 11(2) of the Indian Medical Council Act,
1956 (hereinafter referred to as the "Act"), the Petitioner was granted
permission to run a MBBS course with an annual intake of 150 students.
With the passage of time, the college and hospital run by the Petitioner
gained popularity and, with the increase in facilities, the Petitioner wanted to
increase its intake in the MBBS course from 150 to 250 students per year.
The Petitioner initially approached the Government of Tamil Nadu, for
obtaining the requisite Essentiality Certificate for permitting the aforesaid
increase, which was granted to it on 04.07.2016. After receiving the
Essentiality Certificate, the Petitioner was also issued a consent of affiliation
(hereinafter referred to as "COA") from the Chettinad Academy of Research
and Education on 05.07.2016, wherein it was stated that the said Academy
had, on the basis of the report of the Local Inquiry Committee (hereinafter
referred to as "LIC"), in principle agreed to increase the number of seats in
the MBBS course from the existing 150 seats to 250 seats, for the academic
session 2017-18. The COA dated 05.07.2016 (hereinafter referred to as the
"First COA") also clearly stated that it would be applicable for five years
from the date of its issuance.
3. Armed with the aforesaid Essentiality Certificate and the First COA,
the Petitioner submitted an application/scheme dated 27.06.2017 to the
Respondent No. 1 along with all the requisite documents, in accordance with
Section 10(A) of the Act, for seeking enhancement of the number of MBBS
seats from 150 to 250 seats. A perusal of the said scheme dated 27.06.2017
shows that following documents were submitted along with the application:-
(a) Application Form;
(b) Time bound programme;
(c) Demand Draft in favour of The Secretary, MCI for Rs.4,00,000
(Rupees Four Lakhs Only);
(d) Attested Copy of COA dated 05.07.2016 from the Affiliating
University, i.e., Chettinad Academy of Research and Education;
(e) Attested copy of Bank Authorization Letter;
(f) Attested copy of Letter of Recognition; and
(g) Attested copy of Essentiality Certificate issued by the government
of Tamil Nadu.
4. It is the Petitioner's case that its aforesaid scheme was forwarded by
the Respondent No. 1 to Respondent No. 2 on 14.07.2017, whereafter the
Petitioner did not hear anything further from either of the Respondents for
the next two months. On 07.09.2017, the Petitioner submitted another COA
for the academic session 2018-19, which was essentially in the same terms
as the First COA. The COA dated 07.09.2017 (hereinafter referred to as the
"Second COA") was sent to Respondent No. 2 directly and was received in
the office of Respondent No. 2 on 11.09.2017. Vide letter dated 19.09.2017,
the Respondent No. 2 communicated its disapproval of the Petitioner's
scheme to Respondent No. 1, on the ground that the First COA submitted by
the Petitioner was invalid since it was for the academic year 2017-18 and not
for 2018-19. Thereafter, vide letter dated 27.09.2017, the Respondent No. 1
communicated the Respondent No. 2's disapproval to the Petitioner, and the
Petitioner was intimated that it should be present for a personal hearing on
06.10.2017.
5. Accordingly, on 06.10.2017, the Respondent No. 1 gave a personal
hearing to the Petitioner and, upon considering the matter in its entirety,
found both the COAs to be valid. Thereafter, the Respondent No. 1 issued a
letter dated 16.10.2017 to the Respondent No. 2, wherein it clearly stated
that both the COAs submitted by the Petitioner were valid. In view of its
categorical finding, that a valid COA had been submitted by the Petitioner
along with its scheme, the Respondent No. 1 referred the matter back to
Respondent No. 2 for review, with a specific direction to process the same
for assessment.
6. Instead of taking action in accordance with the categorical directions
of the Respondent No. 1, the Respondent No. 2, in its Executive Committee
meeting held on 22.11.2017, reiterated its earlier decision to return the
Petitioner's scheme on the very same ground that the First COA was invalid.
Aggrieved by the Respondent No. 2's conclusion, that the First COA was
invalid, the Petitioner approached this Court by way of filing W.P. (C) No.
328/2018. Mr. Arun Bhardwaj, Learned Senior Counsel for the Petitioner,
draws my attention to the order dated 12.01.2018 passed in W.P. (C) No.
328/2018, wherein the Respondent No. 2 had taken a specific stand that its
impugned disapproval was merely a recommendation and the final decision
on the said recommendation rested with the Respondent No. 1. Upon
considering the matter, this Court had granted liberty to the Petitioner to
raise its grievances before the Respondent No. 1 by way of a detailed
representation, and had further directed Respondent No. 1 to pass a reasoned
order on the said representation within a period of ten days.
7. Pursuant to the order dated 12.01.2018 passed by this Court, the
Petitioner had submitted a fresh representation to the Respondent No. 1 on
17.01.2018, whereafter the Respondent No. 1 again considered the matter
and opined that the First COA submitted by the Petitioner along with its
application was valid, since it was applicable for five years from the date of
issue. It is interesting to note that the Respondent No. 1 once again
categorically directed the Respondent No. 2 to accept the Petitioner's
scheme and process the same as per the provisions of the Act and the
regulations made thereunder. However, despite the specific directions given
by Respondent No. 1, the Respondent No. 2 has yet again in its meeting held
on 06.02.2018, reiterated its earlier decision dated 22.11.2017 and
recommended disapproval of the Petitioner's scheme, on the same ground
that the First COA submitted along with the said scheme invalid. In these
circumstances, the present writ petition has been filed on 12.03.2018.
8. When the present writ petition was listed for preliminary hearing, this
Court had requested the learned Additional Solicitor General's assistance, in
view of the fact that, despite the Respondent No. 1's categorical finding that
the Petitioner's scheme was complete and the First COA dated 05.07.2016
was valid, the Respondent No. 2 had chosen to ignore the said findings and
defy the specific directions given to it by the Respondent No. 1, to accept
the Petitioner's application and to process it as per the provisions of the Act
and regulations framed thereunder. Today, Ms. Maninder Acharya, Ld.
ASG, has appeared and addressed arguments on behalf of the Respondent
No. 1.
9. Having set out the facts leading to the filing of the present petition, I
may now deal with the rival contentions of the parties. Mr. Arun Bhardwaj,
Ld. Senior Advocate for the Petitioner, submits that the Petitioner's Scheme
dated 27.06.2017 has been erroneously rejected by the Respondent No. 2,
not only by ignoring the fact that the scheme as submitted was complete in
all forms, but also by blatantly refusing to abide by the directions given by
Respondent No. 1, which was the final authority to approve the scheme
submitted by any person proposing to establish a medical college or by any
medical college proposing to introduce a new or higher course of study or
increase its admission capacity.
10. Mr. Bhardwaj further submits that not only has the Respondent No. 2
wrongly rejected the Petitioner's application on the basis of an erroneous
presumption, that the COA dated 05.07.2016 submitted along with its
scheme was invalid, but has also failed to follow the principles of natural
justice and has, despite a specific provision in Section 10A(3) of the Act,
failed to give any opportunity to the Petitioner to rectify the defect, if any,
found in its scheme. He contends that the callous manner in which the
Respondent No. 2 has rejected the Petitioner's scheme, on a hypertechnical
ground after more than 2 months of having received the same from the
Respondent No. 1 and without giving any opportunity to the Petitioner to
explain its position in respect of the First COA, clearly shows that, though
the Respondent No. 2 is opposing the petition on the ground that the time
schedule prescribed for processing such schemes is sacrosanct and has to be
strictly adhered to, it has taken an inordinate amount of time to examine the
Petitioner's scheme. He submits that, as per the Act, the only role assigned to
the Respondent No. 2/MCI is to carry out a factual verification of the
infrastructure available to the college, in order to check whether the
concerned college meets the standards prescribed by the MCI, which stage
has not arrived since the Respondent No. 2 has defied the repeated directions
of the Respondent No. 1/Union of India to process the Petitioner's
application on its own merits. He submits that this defiance on part of the
Respondent No. 2 is contrary to law, since it is in violation of the Act, as per
which it is the Central Government that is the final decision-making
authority.
11. Mr. Bhardwaj has relied on the decision of the Hon'ble Supreme
Court in the case of Royal Medical Trust (Registered) and Anr. v. Union of
India and Anr. [(2015) 10 SCC 19] in support of his plea that it was
incumbent upon the Respondent No. 2 to show due diligence right from the
day the scheme was received, and the schedule prescribing timelines for
various stages must accommodate every possible eventuality and
simultaneously comply with the requirements of natural justice at all levels.
12. Ms. Maninder Acharya, the Ld. ASG appearing for the Respondent
No. 1, while supporting the Petitioner's claim, has defended the orders dated
16.10.2017 and 31.01.2018 passed by Respondent No. 1, whereby after
coming to a categorical conclusion that the Petitioner's scheme dated
27.06.2017 was complete in all respects, the Respondent No. 1 had directed
the Respondent No. 2 to process the same in accordance with law.
13. Ms. Acharya has taken me through the entire scheme of the Act,
especially Section 10A thereof, and submits that, once a scheme/application
is received by the Respondent No. 1/Union of India, the same is sent to the
Respondent No. 2/MCI for its recommendations. At this stage, the
Respondent No. 2 can not only obtain better particulars from the concerned
medical college/person, but if any defects are noticed, the Respondent No. 2
is expected to give a reasonable opportunity to the concerned
person/medical college to make a written representation and remove the said
defects. She, thus, relies on section 10A to contend that, while dealing with
an application, the Act envisages that the Respondent No. 2 should follow
the principles of natural justice and provide an opportunity to the concerned
medical college/person to rectify the defects, if any, and it is only then that a
recommendation has to be made by the Respondent No. 2 to the Respondent
No. 1 for the latter's further action under Section 10A(4).
14. Ms. Acharya contends that the Act itself makes the Respondent No. 1
the final authority to take a decision on the submitted schemes, the reason
for the same being that, even though the Respondent No. 2 is an expert body
constituted to prescribe and control the minimum standards of medical
education and to regulate their observance, it is for the Respondent No. 1 to
ensure that principles of natural justice are followed by the Respondent No.
2 in consonance with the Act and that genuine schemes are not rejected on
hypertechnical grounds. She, thus, submits that, being the final decision-
making authority, the Respondent No. 1 was fully justified in directing the
Respondent No. 2 to process the Petitioner's scheme in accordance with law.
She submits that, while giving such directions, the Respondent No. 1 has not
at all interfered with the autonomy given to the Respondent No. 2 to carry
out the purpose of the Act, which is to prescribe and control the minimum
standards of medical education in India, including providing for courses,
period of study, subjects of examination, standards of proficiency, staff,
equipment and other similar conditions.
15. Ms. Acharya also submits that none of the decisions relied upon by
the Respondent No. 2 in its counter-affidavit are applicable to the present
case, since they all deal with the rejection of incomplete schemes at the
threshold.
16. On the other hand, Mr. Vikas Singh, Ld. Senior Advocate for the
Respondent No. 2, while vehemently opposing the stand of Respondent No.
1, has prayed for a dismissal of the present petition. Mr. Singh has basically
raised two submissions, the first being that the Respondent No. 1 has no
authority or jurisdiction to give directions to the Respondent No. 2 to
recommend approval/disapproval of a particular scheme, since it is only the
Respondent No. 2 which is the expert body especially constituted to control
medical education in India. The second submission made by Mr. Singh is
that, once the Respondent No. 2 had come to a categorical conclusion that
the original COA submitted by the Petitioner along with its scheme was
invalid, it was fully justified in rejecting the Petitioner's scheme at the
threshold. He contends that the Respondent No. 2's action was in
consonance with the decisions of the Supreme Court and, placing reliance
on the decision of the Supreme Court in Royal (supra), he submits that the
repeated directions given by Respondent No. 1 to process the Petitioner's
scheme were, even otherwise, erroneous and rightly not followed by the
Respondent No. 2.
17. Mr. Singh further submits that the admitted facts show that the First
COA, which was received after the inquiry by the LIC, was for the academic
session 2017-18 and the Petitioner, being well-aware that the said COA was
not in conformity with the prescribed requirements, had subsequently
submitted a fresh COA dated 07.09.2017. He contends that though the
Second COA dated 07.09.2017 was valid, as it related to the academic year
in question (i.e., 2018-19), it was rightly ignored by the Respondent No. 2
since it was admittedly submitted much after the cut-off date. He submits
that the Petitioner's failure to submit a valid COA along with its scheme
could not be condoned, as a valid COA was a sine-qua-non for even
examining the Petitioner's scheme. He further submits that the Respondent
No. 1 has erroneously held that the first COA was valid.
18. Mr. Singh has also referred to the Establishment of Medical College
Regulations, 1999, to contend that the opportunity to remove deficiencies
can be given only by the Central Government, and there is no scope for the
Respondent No. 2 to give any such opportunity to the concerned person or
college while dealing with his/her/its scheme under Section 10A(3) of the
Act. He further submits that any such opportunity to cure any
defects/deficiencies only comes at the time of inspection.
19. Mr. Singh has also referred to the various decisions relied upon by
Respondent No. 2 in its counter-affidavit, and has vehemently contended
that, even otherwise, in view of the very little time left to enable the
Respondent No. 2 to carry out the inspections of the Petitioner, it would be
inappropriate for this court to grant any relief to the Petitioner at this stage.
20. Having heard the learned counsels for the parties at great length and
having considered their rival contentions, I find that following three issues
arise in the present case:
I. Is the Respondent No. 2 required to follow the principles of
natural justice while examining a scheme submitted under Section
10A of the Act, or can the same be outrightly rejected without giving
any opportunity to the medical college/person submitting the scheme
to explain its position and rectify the defects, if any, found by the
Respondent No. 2?
II. Does the Respondent No. 1 have any jurisdiction to issue any
directions to the Respondent No. 2, as long as they do not relate to
the standards of medical education?
III. Could the Respondent No. 2 refuse to process the Petitioner's
scheme, on the ground that the COA submitted along with it was
invalid, when the same had been categorically held as valid by the
Respondent No. 1?
21. Before dealing with issues as framed hereinabove, it would be
appropriate to refer to Section 10A of the Act, which 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
postgraduate 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 postgraduate 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 postgraduate
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 Govt. 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 subsection (1).
(5) Where, within a period of one year from the date of submission of the
scheme to the Central Government under sub-section (1), 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 it 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 or 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."
22. What emerges from a bare perusal of Section 10A is that, the first step
envisaged under the Act to obtain permission under sub-section (1), is the
submission of an application/scheme by the concerned person/college to the
Central Government. As per section 10A(2)(b), the aforementioned scheme
is to be submitted in the prescribed form and has to contain such particulars
and documents as are prescribed.
As per section 10A(2)(a), after receiving an application under Section
10A(1), the Central Government has to refer the same to the MCI for its
recommendations. Thereafter, as per Section 10A(3), the MCI may request
the concerned college/person for any other particulars it considers necessary,
and then adopt one of two courses. Firstly, if the scheme submitted is
already complete in all respects, then the MCI must consider the same and
then pass an order either approving or disapproving the said scheme.
However, if the MCI finds that the scheme in question suffers from any
deficiency/defect in terms of particulars, it must first give the concerned
college/person a reasonable opportunity to make a written representation and
cure the defects/deficiencies found, and only then can it pass an order
recommending approval/disapproval of the said scheme.
23. In view of the aforementioned provisions, I may now analyse whether
the Respondent No. 2 was legally obligated to provide an opportunity to the
Petitioner to cure the defects, if any, found in its scheme. In my considered
opinion, the provisions of the Act are unambiguous and specifically
incorporate the principles of natural justice in Section 10A(3), the
requirements of which are binding on the Respondent No. 2. I find that even
if the First COA was found to be invalid, it was incumbent upon the
Respondent No. 2 to comply with the requirements of Sections 10A(3)(a)
and give the Petitioner a reasonable opportunity to make written
submissions and cure the defects found in its scheme. The Respondent No. 2
could not have bypassed the binding provisions of the Act and made any
recommendation without following the procedure stipulated in Section
10A(3) of the Act. In view of my aforesaid conclusion, I find that Mr.
Singh's contention, that there is no obligation on the Respondent No. 2 to
afford an opportunity to the Petitioner to rectify the defects/deficiencies in
its application/scheme, is wholly misconceived and cannot be sustained.
24. I am fortified in my aforesaid conclusion by the decision of the
Hon'ble Supreme Court in the case of Royal (supra), the relevant portion of
which reads as under:-
"31. MCI and the Central Government have been vested with
monitoring powers under Section 10-A and the Regulations. It is
expected of these authorities to discharge their functions well within the
statutory confines as well as in conformity with the Schedule to the
Regulations. If there is inaction on their part or non-observance of the
time schedule, it is bound to have adverse effect on all concerned. The
affidavit filed on behalf of the Union of India shows that though the
number of seats had risen, obviously because of permissions granted
for establishment of new colleges, because of disapproval of renewal
cases the resultant effect was net loss in terms of number of seats
available for the academic year. It thus not only caused loss of
opportunity to the students community but at the same time caused loss
to the society in terms of less number of doctors being available. 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 fulfil these
requirements, the application on the face of it, would be incomplete
and be rejected. Those who fulfil the basic requirements would be
considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of
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 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 medical college concerned should be given requisite
permission/renewal. However, if there are any deficiencies or
shortcomings, 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, 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 MCI and the Central Government. In cases where actual
physical verification is required, 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 that academic
year is concerned."
25. At this stage, it is also relevant to note the Respondent No. 2's conduct
in considering and processing the Petitioner's scheme for increase in the
number of seats for the MBBS Course. In view of my aforesaid conclusion,
that the principles of natural justice are inherent in the provisions of Section
10A of the Act, I find that the Respondent No. 2 has grossly violated the
same by not only depriving the Petitioner of a reasonable opportunity of
being heard, but by also taking an inordinate amount of time to
communicate its disapproval of the Petitioner's scheme. The callous manner
in which the Respondent No. 2 has processed the Petitioner's application is
an instance of the kind of red-tapism that has been condemned by the
Hon'ble Supreme Court on many an occasion. This Court appreciates the
assistance given by the Ld. ASG and the fair stand taken by her in
emphasizing and condemning the Respondent No. 2's red-tapism.
26. I may now consider Mr. Singh's contention that the Respondent No. 1
has no authority to issue any directions to the Respondent No. 2, to consider
and process an application/scheme submitted under the Act, which the
Respondent No. 2 has already disapproved. Section 10A(4) stipulates that,
after the MCI makes it recommendations, the scheme in question has to be
referred back to the Central Government, whereafter the Central
Government is statutorily obligated to either approve or disapprove the
scheme in question. The proviso to Section 10A(4) clearly stipulates that the
Central Government cannot disapprove any scheme without giving the
concerned person/medical college a reasonable opportunity of being heard.
Therefore, on a bare perusal of the provision, it is apparent that the
principles of natural justice are also inherent in Section 10A(4) of the Act,
and are statutorily binding on the Central Government. More importantly,
however, the approval granted by the Central Government under this
provision is specifically termed as "permission". In comparison to the word
"approval", which in the context of the Act connotes non-binding
recommendations, the word "permission" seems to suggest the leave of an
authority to do a certain thing. Viewed at from this angle, the word
"permission" occurring in Section 10A(4) lends itself to the conclusion that,
while the MCI's approval/disapproval is integral to the passing of a decision
under Section 10A, they are merely recommendations for the Central
Government to consider before passing its final decision under Section
10A(4) of the Act. Therefore, I find that Central Government is the final
decision-making authority under the Act, and it has jurisdiction to issue
binding directions to the Respondent No. 2.
27. In this regard, it is also imperative to note the Respondent No. 2's
stand before this Court in W.P. (C) No. 328/2018 as also in the present writ
petition. In W.P. (C) No. 328/2018, the Respondent No. 2 had taken the
categorical stand that the final decision with respect to any scheme
submitted under the Act rested with the Respondent No. 1, and that the
Respondent No. 2's approval/disapproval was merely a recommendation.
The relevant paragraph of the order dated 12.01.2018 in W.P. (C) No.
328/2018 reads as under:
"Learned counsel appearing for respondent no.2/MCI who appears
on advance notice submits that the impugned order is only a
recommendation made by respondent no.2 and the final decision is
yet to be taken on the said recommendation by the respondent no.1.
He submits that the present petition is therefore pre-mature as a
final decision is yet to be taken by respondent no.1/Union of India."
In the present writ petition, even though the Respondent No. 2 has
maintained that it is only a recommending authority, it contends that the
Respondent No. 1 has no authority to direct it to recommend
approval/disapproval of a certain scheme.
28. Having carefully considered the provisions of Section 10A(3) and (4)
of the Act, and in light of the Respondent No. 2's unequivocal stand before
this Court, I find that the Central Government, being the final decision-
making authority, has the authority to issue directions to the Respondent No.
2 to process a particular scheme. In my considered opinion, the Respondent
No. 2 is bound by these directions of the Respondent No. 1, and any
defiance thereof on part of the Respondent No. 2 is contrary to law,
especially the provisions of the Act. In view of this conclusion, I find that
the Respondent No. 1's finding, that the First COA submitted by the
Petitioner was valid, is binding on the Respondent No. 2. Therefore, the
Respondent No. 2 has no authority to disobey the Respondent No. 1's
directions and refuse to process the Petitioner's scheme, on the ground that
the First COA submitted along with it was invalid, when the same had been
categorically held as valid by the Respondent No. 1. I am of the opinion that,
in refusing to process the Petitioner's scheme, the Respondent No. 2 has not
only gone far beyond the scope of its recommendatory functions, but has
essentially usurped the Respondent No. 1's authority to make the final
decision with regard to a scheme under Section 10A(4) of the Act.
29. At this stage, I find it appropriate to deal with the decisions relied
upon by Mr. Singh, in support of his contention that the Respondent No. 2
was justified in outrightly rejecting the Petitioner's scheme, since it had
found the First COA submitted along with the same to be invalid. In my
considered opinion, none but one of the said decisions apply to the facts of
the present case, since all of them deal with situations wherein an
incomplete scheme was submitted by the concerned person/medical college.
None of those cases deal with a situation where the Respondent No. 1,
which is the final decision-making authority as per Section 10A of the Act,
had specifically found that the scheme in question was complete and did not
suffer from any defects/deficiencies. In fact, in my view, the decision of the
Hon'ble Supreme Court in Royal (supra), which has been relied upon by Mr.
Singh, does not support the case of the Respondent No. 2 but that of the
Petitioner. As noted above, the Hon'ble Supreme Court's decision in Royal
(supra) emphasizes the need to follow the principles of natural justice at
every stage, when any scheme/application is being considered or processed
by the MCI and the Central Government. However, since Mr. Singh has
heavily relied upon the said decisions, I deem it appropriate to deal with
each of them as follows.
30. In Medical Council of India v. V.N. Public Health & Educational
Trust & Ors. [(2016) 11 SCC 216], while allowing the appeal of the MCI,
the Supreme Court observed that the scheme for grant of approval was filed
with a conditional, and therefore, defective Essentiality Certificate.
Therefore, the Court upheld the MCI's and Central Government's rejection
of the scheme in question. The Supreme Court also set aside the High
Court's order directing a fresh assessment of the concerned college's scheme,
since the time stipulated for the same had elapsed. Similarly, in Dental
Council of India v. SRM Institute of Science and Technology [(2004) 9
SCC 676], while dealing with a situation wherein the concerned college did
not submit the requisite Essentiality Certificate with its scheme, the Supreme
Court held that an incomplete application cannot be processed either by the
Central Government or the Dental Council. Likewise, in MCI v. Amma
Chandravati Education and Charitable Trust & Ors. [LPA No. 224/2015],
the Essentiality Certificate issued by the State Government and the COA
issued by the university were not filed alongwith the concerned college's
scheme.
31. In Padmashree Dr. D.Y. Patil Medical College v. MCI & Anr.
[(2015) 10 SCC 51], the scheme submitted by the concerned college for
increase in the number of seats for the MBBS Course was deficient,
since the Essentiality Certificate was not filed along with the Scheme
within the time stipulated for the same. In that case, the Supreme Court
upheld the High Court's order setting aside the Ld. Single Judge's order
condoning the concerned college's delay. In Medical Council of India v.
Akash Education & Development Trust & Ors. [(2015) 10 SCC 78], the
Supreme Court set aside the High Court's order directing a fresh inspection
of the concerned college's inspection, on the ground that direction was
ordered at a belated stage after the time for the same had elapsed. Similarly,
in Mridul Dhar & Anr. v. Union of India & Ors. [(2005) 2 SCC 65], the
Supreme Court dealt with the cardinal importance of adhering to the time
schedule for granting admissions to students in the MBBS/BDS Courses.
32. With regard to Mr. Singh's reliance on the decisions of the Supreme
Court in Public Health & Educational Trust (supra), Dental Council of
India (supra), Amma Chandravati (supra), Padmashree (supra), Akash
Education and Mridul Dhar (supra), I find that there can be no doubt about
the well-settled legal position, that the prescribed time schedule has to be
strictly adhered to and that any incomplete scheme has to be rejected at the
threshold. However, in the facts of the present case, the Respondent No. 1
has come to a categorical conclusion that the Petitioner's scheme was
complete in all respects and the First COA submitted along with the said
scheme was valid. Therefore, none of the aforesaid decisions apply to the
facts of the present case. In my considered opinion, the only ground taken by
the Respondent No. 2 in recommending disapproval of the Petitioner's
scheme was that it was incomplete, since the First COA submitted along
with the same was invalid. However, in view of the Respondent No. 1's
categorical finding that the Petitioner's scheme was complete and the First
COA submitted along with the same was valid, the Respondent No. 2's
disapproval of the Petitioner's scheme on this ground was completely wrong
and cannot be sustained.
33. In Educare Charitable Trust v. Union of India & Anr. [(2013) 16
SCC 474], the concerned dental college did not meet the qualifying criteria
for an increase in its admission capacity, since its existing admission
capacity was not recognized under the relevant regulations. However, in the
present case, the Petitioner's existing capacity has not only been permitted
by the Respondent No. 1, but the stage for determining whether the
Petitioner meets the criteria for increasing its capacity has not arrived, since
the Respondent No. 2 has refused to process its complete application and
conduct the requisite inspection. Therefore, the aforesaid decision is also
inapplicable to the determination of the present petition.
34. In Poonaiyah Ramajayam Institute of Science And Technology
Trust v. MCI [(2015) 10 SCC 83], the Essentiality Certificate and COA
were not submitted along with the scheme and were only submitted 10 days
after the cut-off date. The Supreme Court directed the MCI to conduct the
inspection under the Act, whereafter several deficiencies were reported by
the MCI. The MCI then decided to invoke clause 8(3)(1)(d) of the
Establishment of Medical College Regulations (Amendment), 2000 and
return the concerned college's application recommending disapproval. In the
facts of the case, the Supreme Court refrained from issuing any directions to
the MCI. As noted above, in the present case, the stage for inspection has
not arrived due to the Respondent No. 2's repeated defiance of the
Respondent No. 1's directions. Therefore, this case also does not apply to the
facts of the present case.
35. In Priya Gupta v. State of Chhattisgarh [(2012) 7 SCC 433], Priya
Gupta had appeared in the pre-medical test conducted by the State of
Chhattisgarh for the year 2006 and had secured a General Rank of 1614. A
three member enquiry committee was constituted to find out as to whether
the admissions of Priya Gupta and another were valid or not. This was not a
case pertaining to the submission of a scheme under Section 10A of the Act,
for the enhancement of seats in a medical course offered by the concerned
college. Therefore, this case is evidently inapplicable to the present petition.
36. During the final hearing of the present petition, Mr. Singh had
contended that even the initial permission granted to the Petitioner to start an
MBBS Course with an intake of 150 students, had been discovered to be
flawed during the course of the present petition. However, in my considered
opinion, the deficiencies/defects in such initial permission are not germane
to the present proceedings. Secondly, they were urged before this Court for
the first time only during the final hearing of the matter. Therefore, I have
neither ventured to discuss these contentions at length nor rendered my
considered opinion on the same. Needless to say, the Respondents are free to
take action in respect of the deficiencies/defects in this initial permission, if
permitted under law.
37. It has been contended that, in view of the paucity of time to process
the Petitioner's scheme according to the provisions of the Act, it would be
inappropriate the allow the writ petition at this stage. However, in my
considered opinion, this delay has occurred only on account of the
Respondent No. 2's red-tapism, as has been contended by the learned ASG,
and the consequences of the same cannot be allowed to fall on the Petitioner.
I find merit in Mr. Bhardwaj's submission that it was incumbent upon the
Respondent No. 2 to show due diligence right from the day the Petitioner's
scheme was received, especially in light of the settled legal position that the
time lines prescribed for the various stages of processing the applications
under Section 10A have to be strictly adhered to. Therefore, in my
considered opinion, the paucity of time in this case does not create an
embargo on granting the reliefs prayed for in the present petition.
38. In view of my aforementioned conclusions, the Respondent No. 2 is
directed to treat the Petitioner's scheme/application dated 27.06.2017 as
complete and the First COA dated 05.07.2016 submitted along with it as
valid. The Respondent No. 2 is further directed to process the Petitioner's
scheme/application dated 27.06.2017 as per law by conducting the requisite
inspection. Needless to say, if the Petitioner, during inspection, is found to
not meet the requisite standards and criteria stipulated under the Act or is
discovered to be deficient in some respect, the Respondent No. 2 will be free
to recommend disapproval of the Petitioner's scheme., whereafter the
Respondent No. 1 would be entitled to take an appropriate decision in
accordance with law.
39. The writ petition is allowed in the aforementioned terms with no
orders as to costs.
(REKHA PALLI)
JUDGE
APRIL 18, 2018/aa.ff
