MEDICAL COUNCIL OF INDIA Vs RAMA MEDICAL COLL.HOSPITAL RES.CENT.&ANR
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: C.A. No.-004911-004911 / 2012
Diary number: 33013 / 2011
Advocates: AMIT KUMAR Vs
NEERAJ SHEKHAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4911 OF 2012
(Arising out of SLP(C)No.28996 of 2011)
Medical Council of India … Appellant Vs.
Rama Medical College Hospital & Research Centre, Kanpur & Anr. … Respondents
WITH CIVIL APPEAL NO.4909 OF 2012
(Arising out of SLP(C)No.30332 of 2011) AND
CIVIL APPEAL NO.4910 OF 2012 (Arising out of SLP(C)No.30338 of 2011)
AND CIVIL APPEAL NO.4912 OF 2012
(Arising out of SLP(C)No.3732 of 2012) AND
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WRIT PETITION (CIVIL) NOS.457, 458 AND 489 OF 2011
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. The Indian Medical Council Act, 1956,
hereinafter referred to as the “1956 Act”, was
enacted, inter alia, to provide for the
reconstitution of the Medical Council of India and
the maintenance of a Medical Register for India and
for matters connected therewith. Section 3 of the
Act empowered the Central Government to constitute
a Council, which as per Section 4(1) means the
Medical Council of India, hereinafter referred to
as the “Medical Council”, constituted under the
1956 Act.
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3. In these matters, we are mainly concerned with
the interpretation of Sections 10A and 11 of the
1956 Act. Section 10A of the 1956 Act, which
provides for permission for establishment of new
medical colleges and new courses of study, is
extracted hereinbelow :
“10A. Permission for establishment of new medical college, new course of study.- (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),
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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, -
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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
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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:-
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a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under Section 19A or, as the case may be, under Section 20 in the case of post-graduate medical education;
b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course 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
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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.”
4. It would be seen from the above that after the
promulgation of the 1956 Act, no person would be
entitled to establish a Medical College except in
the manner provided in Section 10A, which, in
addition provides that no medical college shall
open a new or higher course of study or training,
including a post-graduate course of training, which
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would enable a student of such course or training
to qualify himself for the award of recognised
medical qualification, except with the previous
permission of the Central Government. The said
prohibition also extends to the increase in
admission capacity in any course of study or
training, including post-graduate study or
training, except with such previous permission of
the Central Government. Sub-Section (2)
categorically provides that every person or medical
college shall, for the purpose of obtaining
permission under Sub-Section (1), submit to the
Central Government a scheme in accordance with the
provisions of Clause (b) and the Central Government
shall refer the scheme to the Medical Council for
its recommendations. The said Council has been
authorized to scrutinize the scheme and make such
suggestions, as may be necessary, to rectify any
defect and, thereafter, to forward the same,
together with its recommendations, to the Central
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Government. Sub-Section (7) provides that the
Council while making its recommendations shall take
into consideration the factors mentioned therein.
5. In other words, although, the Central
Government is the authority to grant sanction to
the establishment of a medical college, it is the
Medical Council of India which plays a major role
in deciding whether such sanction could be given by
the Central Government.
6. Section 11 of the 1956 Act deals with
recognition of medical qualifications granted by
universities or medical institutions in India. The
same also being relevant to the facts of this case,
is reproduced hereinbelow :
“11. Recognition of medical qualifications granted by Universities or medical institutions in India.- (1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act.
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(2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date.”
7. In addition to the aforesaid provisions,
Section 10-B of the 1956 Act is also of
significance as it deals with non-recognition of
medical qualifications in certain cases. For the
sake of reference, the same is also extracted
hereinbelow :-
“10-B. Non-recognition of medical qualifications in certain cases.– (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provision of Section 10A, no medical qualification granted to any student of such medical
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college shall be a recognised medical qualification for the purposes of this Act.
(2) Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provision of Section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation – For the purposes of this Section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.”
8. It is amply clear from Section 10B that if a
Medical College is established, except with the
previous permission of the Central Government, as
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provided under Section 10A, no medical
qualification granted to any student of such
medical college shall be recognized as a medical
qualification for the purposes of the Act.
9. At this juncture, reference may be made to the
“Establishment of Medical College Regulations,
1999”, framed by the Medical Council of India in
exercise of powers conferred under Section 10A read
with Section 33 of the 1956 Act, and notified on
30th July, 1999. The same came into force on their
publication in the Official Gazette on 28th August,
1999, and is hereinafter referred to as the “1999
Regulations”.
10. Regulation 4 of the 1999 Regulations, inter
alia, provides that applications for permission to
set up Medical Colleges are to be submitted to the
Secretary (Health), Ministry of Health and Family
Welfare, Government of India, along with a non-
refundable application fee of Rs.3.5 lakhs in the
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form of a demand draft/pay order in favour of the
Medical Council of India for Central and State
Government Colleges and Rs.7 lakhs for private
sector medical colleges and institutions.
Regulation 5 provides that applications received by
the Ministry of Health and Family Welfare are to be
referred to the Medical Council for registration
and evaluation and recommendations. Regulations 6
and 7 provide that after evaluation, the Council
shall send a factual report to the Central
Government with its recommendations to issue or not
to issue Letters of Intent. Regulation 8 of the
1999 Regulations is the provision for grant of
permission and since it is of considerable
significance to the issue involved in these
proceedings, the same is reproduced hereinbelow :
“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
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conditions or modifications in the original proposal as may be considered necessary. This letter of Intent will also include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above conditions and modifications are accepted and the performance bank guarantees for the required sums are furnished by the person and after consulting the Medical Council of India.
(2) The formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the intake of students during the following years.
(3) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of
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India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
(4) The council may obtain any other information from the proposed medical college as it deems fit and necessary.”
11. The above Regulation makes it clear that
irrespective of whether the applicant is the
Central Government or a State Government or a
private person, the Central Government may, on the
recommendation of the Medical Council, issue a
Letter of Intent to set up a new medical college
and formal permission may be granted initially for
a period of one year and may be renewed on yearly
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basis subject to verification of the achievements
of annual targets, once the conditions and
modifications indicated in the Letter of Intent are
accepted and after consulting the Medical Council
of India. Sub-regulation (3) is important for our
purpose as it also related to certain other
Regulations published by the Medical Council in
2000. It provides, without any ambiguity that the
provision to establish a medical college and to
admit students may be granted initially for a
period of one year and may be renewed on yearly
basis subject to verification of the achievement of
annual targets. It may be noted that Section 10A
speaks of permission and not recognition on a year
to year basis. Recognition follows once the newly-
established medical colleges/institutions
satisfactorily complete five years with the
graduation of the first batch of students admitted
to the institution when initial permission is
granted. It also provides with complete clarity
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that it shall be the responsibility of the
applicant to apply to the Medical Council for
renewal of permission six months before the expiry
of the initial permission and that the process of
renewal of permission will continue till all the
required formalities are completed and a formal
recognition of the medical college is granted.
12. From the aforesaid provisions it is very clear
that recognition to a degree awarded by a newly-
established medical college can be given only after
all the requirements for the establishment of the
medical college and expansion of the hospital
facilities are completed. It has also been
stipulated that further admissions shall not be
made at any stage unless the requirements of the
Council are fulfilled.
13. Reference may also be made to the Regulations
framed by the Medical Council of India relating to
opening of higher courses of study and increase of
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admission capacity in medical colleges and
published by the Medical Council of India under
notification dated 14th August, 2000. The same are
known as “The Opening of a New or Higher Course of
Study or Training (including Post-Graduate Course
of Study or Training) and Increase of Admission
Capacity in any Course of Study or Training
(including a Post-Graduate Course of Study Or
Training) Regulations, 2000”, hereinafter referred
to as “the 2000 Regulations”, which came into force
on 7th October, 2000. Thereafter, Regulation 3,
which provides for permission for establishment of
a new or higher course of study, etc., reads as
follows :-
“(3) The permission for establishment of a new or higher course of study, etc. -
No medical college, shall –
(a) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the
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award of any recognized medical qualification; or
(b) increase admission capacity in any course of study or training (including a post-graduate course of study or training); except after obtaining the previous permission of the Central Government by submitting Scheme annexed to these regulations.”
14. Regulation 3 of Part I of the said Regulations
sets out the “Qualifying Criteria” which provides
as follows :
“QUALIFYING CRITERIA : The medical college/institution shall
qualify for opening a New or Higher Course of Study or Training (including a Post- graduate Course of Study or Training) in the medical colleges/institutions if the following conditions are fulfilled :
1. (1) The medical college/institution must be recognised by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Post-graduate Course; however, the medical college/Institute which is not yet recognised by the Medical Council of India for the award of MBBS Degree may apply for starting of a Post-Graduate Course in pre- clinical and para-clinical subjects of Anatomy, Physiology, Biochemistry,
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Pharmacology, Pathology, Microbiology, Forensic Medicine and Community Medicine at the time of third renewal – i.e. along with the admission of fourth batch for the MBBS Course”;
[Emphasis Supplied]
15. Regulation 3 of Part II of the Regulations,
dealing with Qualification Criteria initially
provided that a medical college/institution would
qualify to apply for increasing the number of
admissions in MBBS/PG Diploma/Degree/Higher
Speciality Course in the existing medical
college/institution, if it fulfilled certain
conditions, one of which was that the medical
college/Institution had been recognized by the
Medical Council of India as being capable of
running such courses. The aforesaid paragraph was,
subsequently substituted by the following :
“The medical college/institution must be recognized by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Post-Graduate Course; however, the Medial College/Institute which is not yet recognized by the Medical
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Council of India for the award of MBBS Degree may apply for starting of a Post- Graduate Course in pre-clinical and para- clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Community Medicine at the time of fourth renewal – i.e. along with the admission of fifth batch for the MBBS Course.”
[Emphasis Supplied]
16. It is in the aforesaid background that the
Medical Council of India filed Special Leave
Petition (Civil) No.28996 of 2011, and two other
Special Leave Petitions, which are being heard
along with three Writ Petitions filed by private
institutions claiming the right to increase their
admission capacity.
17. Appearing on behalf of the Medical Council of
India, Mr. Nidhesh Gupta, learned Senior Advocate,
referred to the relevant provisions of the 1956
Act, which have been referred to and reproduced
hereinabove. Mr. Gupta relied heavily on the
requirements to be fulfilled by the Applicant
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colleges for obtaining Letter of Intent and Letter
of Permission for establishment of new medical
colleges and yearly renewals under Section 10A of
the Indian Medical Council Act, 1956, published by
the Medical Council of India and approved by the
Central Government in its Ministry of Health &
Family Welfare vide letter dated 13th October, 2009.
Laying stress on the requirements to be fulfilled
for yearly renewals under Section 10A of the 1956
Act, Mr. Gupta also referred to the 2000
Regulations, with particular reference to
Regulation 3 of Part I of the Regulations dealing
with Qualification Criteria as set out hereinabove.
Mr. Gupta submitted that it would be clear from the
substituted Sub-Regulation (1) of Regulation 3 that
it was always the intention of the Central
Government and the Medical Council of India that
for the purpose of increase in the number of
admissions in the different courses, the medical
college/institution had to be recognized by the
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Medical Council of India of being capable of
running Bachelor of Medicine and Bachelor of
Surgery/Post-Graduate Courses. Mr. Gupta urged
that the said clause also provides that even in
cases of medical colleges and institutes, which
were not yet recognized by the Medical Council of
India for the award of MBBS degree, they could also
apply for increase of intake in the Post-Graduate
Courses at the time of fourth renewal i.e. along
with the admission of the fifth batch for the MBBS
Course. Mr. Gupta submitted that the said provision
makes it very clear that degrees awarded by medical
colleges and institutions could not be recognized
prior to the completion of the five year course and
that only at the time of the fourth renewal,
namely, for the final year course, could an
application be made for such purpose along with the
admission of the fifth batch for the MBBS Course,
or in other words, with the admission of the final
year students of the MBBS Course. Mr. Gupta
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submitted that the said provisions unambiguously
indicate that without completion of the five-year
course and the graduation of the first batch of
MBBS students, a medical college or institution
could not be recognized for the purposes of Section
10A or 11 of the 1956 Act.
18. In addition to what has been mentioned
hereinabove, Mr. Gupta laid special stress on
Regulation 8 of the 1999 Regulations relating to
grant of permission for setting up of a new medical
college. He laid special stress on Sub-Regulation
3, extracted hereinbefore, which provides that the
permission to establish a medical college and admit
students may be granted initially for a period of
one year and may be renewed on yearly basis,
subject to verification of the achievements of
annual targets. The said Regulation further
provides that, for the purpose of renewal, an
application would have to be made to the Medical
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Council of India at least six months prior to the
expiry of the initial permission and that the
process of renewal of permission would continue
till such time as the establishment of the medical
college and expansion of the hospital facilities
are not completed and a formal recognition of the
medical college is not granted. Mr. Gupta also
laid stress on the further provision contained in
the said Regulation to the effect that further
admissions would not be made at any stage, unless
the requirements of the Council are fulfilled. The
said submissions were made in the light of
Regulation 3 of Part II dealing with the question
of “qualification criteria”, whereunder it has been
provided that the medical college/institution must
be recognised by the Medical Council of India for
running Bachelor of Medicine and Bachelor of
Surgery/Post-Graduate Courses. The said Regulation
further provides for fourth renewal, along with the
admission of the fifth batch for the MBBS Course.
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Mr. Gupta submitted that the aforesaid provisions
were sufficient to prove his case that recognition
of the degree awarded by the newly-established
medical college could only be given by the Central
Government after the first batch of students of the
MBBS Course had completed the said Course and
recommendations had been made by the Medical
Council to grant such recognition.
19. In support of his submissions, Mr. Gupta
referred to and relied upon several decisions of
this Court. Referring to the three-Judge Bench
decision of this Court in the case of Medical
Council of India Vs. State of Karnataka & Ors.
[(1998) 6 SCC 131], Mr. Gupta submitted that one of
the questions which fell for decision in the said
case was the extent of the powers of the Medical
Council of India to fix the admission capacity in
the medical colleges/institutions and its role in
regard to the increase in number of admissions in
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such institutions. One other question which also
fell for consideration was with regard to the
status of the regulations framed by the Medical
Council under the 1956 Act.
20. On the first issue, one question which was
raised was whether the directions given by the
Medical Council under the Regulations framed by it
were mandatory or directory in character. In this
connection, this Court had occasion to consider its
decision in State of M.P. Vs. Nivedita Jain [(1981)
4 SCC 296], in which it had, inter alia, been held
that all the Regulations framed by the Medical
Council of India under the 1956 Act, were directory
in nature. While considering the matter, this
Court held that the Indian Medical Council Act is
relatable to Entry 66 of List I and prevails over
any State enactment to the extent the State
enactment is repugnant to the provisions of the
said Act, even though the State Act may be
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relatable to Entry 25 or 26 of the Concurrent List.
This Court further held that Regulations framed
under Section 33 of the 1956 Act, with the previous
sanction of the Central Government, are statutory
and had been framed to carry out the purposes of
the Act and for various other purposes mentioned in
Section 33. This Court further held that if a
Regulation falls within the purposes referred to
under Section 33 of the Act, it would have
statutory force. It was ultimately held that the
State Acts, and in the said case, the Karnataka
Universities Act and the Karnataka Capitation Fee
Act, would have to give way to the Indian Medical
Council of India Act, 1956, which was a Central
Act.
21. The next case referred to by Mr. Gupta is a
decision of the Constitution Bench in several writ
petitions in which the lead writ petition, being
No.290 of 1997, was filed by Dr. Preeti Srivastava
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& Anr. against the State of M.P. & Ors. [(1999) 7
SCC 120]. Some of the questions which fell for the
determination of the Constitution Bench were
similar to those which had been taken up and
decided in Nivedita Jain ’s case (supra). While 4
out of 5 Judges were unanimous on the issue that by
virtue of Entry 66 of List I and Entry 25 of List
III, the State’s competence to control or regulate
higher education is subject to the standards so
laid down by the Union of India, the dissenting
view taken by one of the Hon’ble Judges was that
while the Parliament was competent to authorize the
Medical Council of India to prescribe basic
standards of eligibility and qualification for
admission to the Post-Graduate Courses under the
Medical Council Act, the States were fully
competent to control admission to Post-Graduate
Medical Courses in the absence of any central
legislation on these aspects. The majority view
was similar to the view expressed in the decision
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in the Medical Council of India case (supra). It
was further held that in view of Entry 66 of List
I, a State has the right to control education,
including medical education, so long as the field
is not occupied by any Union List entry. Secondly,
the State, cannot, by controlling education in the
State, encroach upon the standards in institutions
for higher education, because the same was
exclusively within the purview of the Union
Government. Distinguishing various earlier
decisions of this Court in the cases of Minor P.
Rajendran Vs. State of Madras [AIR 1968 SC 1012];
Chitra Ghosh Vs. Union of India [(1969) 2 SCC 228];
State of A.P. Vs. Lavu Narendranath [(1971) 1 SCC
607]; and Ambesh Kumar (Dr.) Vs. Principal,
L.L.R.M. Medical College [(1986) Supp. SCC 543],
the Constitution Bench criticized the decision
rendered in Nivedita Jain ’s case (supra). Apart
from the above, the majority view was that the
power vested in the Medical Council under Section
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20 of the 1956 Act, to prescribe the minimum
standards for Post-Graduate education, was not
merely advisory in nature, but that the
universities were bound to abide by the standards
prescribed. It was also the majority view that the
norms had to be laid down by the Medical Council
for determining reservation of seats for
SCs/STs/OBCs and minimum qualifying marks for the
candidates had also to be prescribed.
22. In his dissenting judgment, Justice S.B.
Majmudar held that the provisions of Section 20
read with Section 33 empowers the Medical Council
to lay down basic requirements of quantifications
and eligibility conditions and once the same was
done, it was for the States under Entry 25 of List
III to control admission and to lay down the
criteria for shortlisting the eligible candidates,
since Parliament had not legislated on this aspect.
The Hon’ble Judges representing the majority view
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made it clear that under the 1956 Act, the Medical
Council had been set up as an expert body to
control the minimum standards of medical education,
including Post-Graduate medical education, and to
regulate their observance. Their Lordships also
held that the Council had implicit power to
supervise the qualifications or eligibility
standards for admission into medical institutions
and that the Act provided for an overall vigilance
by the Medical Council to prevent sub-standard
entrance qualifications for medical courses. It
was further held that the scheme of the 1956 Act
did not give an option to the universities to
follow or not to follow the standards laid down by
the Medical Council.
23. Reference was also made to the decision
rendered by a Bench of two Judges in K.S. Bhoir Vs.
State of Maharashtra & Ors. [(2001) 10 SCC 264],
which was heard along with some other Civil
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Appeals, where the issues were common. The first
issue raised and deliberated upon was the proposed
one-time increase in admission capacity in medical
colleges. Striking out the State provision, this
Court held that the non-obstante clause contained
in Section 10A(1) means that an increase in
admission capacity in a medical college is
prohibited, unless previous permission is obtained
from the Central Government in accordance with the
recommendation of the Medical Council of India.
Their Lordships also observed that the entire
scheme of Section 10A of the Act had to be read in
consonance with the other Sub-Sections to further
the object behind the amending Act which was to
achieve the highest standard of medical education.
Their Lordships observed that the objective could
be achieved only by ensuring that a medical college
had the requisite infrastructure to impart medical
education. In the facts of the said case and in
view of Section 10A(1), Their Lordships ultimately
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held that the one-time increase proposed by the
State Government in the admission capacity in the
various medical colleges, should have been
accompanied by a scheme prepared in accordance with
the Act and the Regulations and submitted to the
Central Government. Their Lordships also held that
in the absence of any scheme submitted to the
Central Government in regard to the one-time
increase in the admission capacity in the medical
colleges, the Central Government was justified in
refusing permission for the same.
24. The next decision referred to by Mr. Gupta was
that rendered in the case of Govt. of A.P. & Anr.
Vs. Medwin Educational Society & Ors. [(2004) 1 SCC
86], wherein the same view, as was expressed in the
decision in K.S. Bhoir ’s case, was reiterated. It
was reiterated that the decision of the State
Government in the matter was not final, as the
final decision had to be taken by the Central
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Government on the basis of the recommendations of
the Medical Council under the relevant provisions
of the Indian Medical Council Act, 1956.
25. Mr. Gupta lastly submitted that it is settled
law that an individual State is entitled to
legislate on any of the Entries contained in the
Concurrent List even if there was in existence a
central law on the said subject, but in case of
repugnancy, the law enacted by the State would have
to give way to the central law. Mr. Gupta urged
that the Division Bench of the High Court had erred
in interpreting the use of the expression “formal
recognition” in Sub-Regulation (3) of Regulation 8
of the 1999 Regulations, and had erroneously held
that the same could be preceded by grant of adhoc
recognition, which could subsequently be converted
into a formal recognition, as contemplated by
Section 11 of the 1956 Act. Mr. Gupta also urged
that the decision of the Division Bench of the High
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Page 37
Court concurring with the reasoning of the learned
Single Judge that the Regulation does not
contemplate that a college must be recognised to
award degrees, i.e., it does not contemplate
recognition under Section 11 of the 1956 Act and
that it is permissible in a college to effect
increase in the admission capacity, even at the
stage when it has permission/recognition under
Section 10A of the 1956 Act, was wholly erroneous
and was liable to be struck down.
26. Mr. Gupta pointed out from a number of
decisions of this Court that in an extraordinary
case the Court may itself pass an order to give
directions which the Government or public authority
should have passed or issued. Mr. Gupta submitted
that having held as much, the learned Single Judge
had quite wrongly issued a mandamus to increase the
capacity pertaining to the MBBS course from 100 to
150 seats in each of the three colleges, thus
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Page 38
wandering into the territory of the Medical Council
of India which had the necessary expertise and the
authority under the Regulations to evaluate as to
whether the medical institution was capable of
catering to more students than initially envisaged.
Mr. Gupta submitted that while increasing the
number of students from 100 to 150, the Court not
only acted beyond its jurisdiction in giving such
direction, but it failed to take into consideration
the fact that under the relevant regulations it was
only the Medical Council which could have allowed
such increase, once it was satisfied that the
concerned institution had proper facilities to
support such an increase.
27. Mr. Gupta, therefore, urged that since the
process adopted by the learned Single Judge, which
was affirmed by the Division Bench of the High
Court, being contrary to the Rules and Regulations
in respect of the issues raised in the appeals, the
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Page 39
same could not be sustained and were liable to be
set aside.
28. Mr. T.S. Doabia, learned Senior Advocate, who
appeared for the Union of India, adopted the
submissions made by Mr. Nidhesh Gupta and added
that the scheme for granting permission to
establish new medical colleges/institutions and
also for granting permission to increase the number
of seats in the institution, made it quite clear
that it was only the Central Government, acting on
the recommendation of the Medical Council of India,
which could either grant permission for the
establishment of a new medical institution or grant
recognition to the institution itself, once the
first batch of students admitted had completed
their fifth year and had graduated. Mr. Doabia
submitted that this was a scheme which had been
framed both under the Act and the Rules and
Regulations framed thereunder and the Medical
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Page 40
Council of India and the Union of India had
complete say in the matter. The inclusion of a
third party was not contemplated under the
provisions of Sections 10A or 10B of the 1956 Act.
Accordingly, the mandamus issued by the learned
Single Judge of the High Court, which was affirmed
by the Division Bench, was liable to be set aside.
29. Mr. Dushyant Dave, learned Senior Advocate
appearing for the School of Medical Sciences and
Research, Sharda Education Trust, the Respondent
No.1 in SLP(C)No.30338 of 2011, raised the question
as to whether it could have been the intention of
the legislature to grant year to year recognition
when a medical college was newly-established, till
the first batch of students graduated therefrom
after five years. Questioning the reasonability of
such a view, Mr. Dave submitted that once
permission was granted to a medical
college/institution to commence classes, it would
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Page 41
be quite absurd to accept the reasoning that such
permission would have to be renewed annually, since
after being satisfied that the institution was
capable of running a medical course, permission had
been granted to commence the classes for the first
year.
30. Referring to Sections 10A(1)(b) and (4), Mr.
Dave pointed out that the said provisions
contemplated a one-time recognition and a citizen’s
inherent right to establish medical colleges cannot
be curtailed by the provisions for grant of year to
year recognition. Mr. Dave also urged that under
the garb of exercising its powers under Section 19
of the 1956 Act, the Council could not assert that
it could also regulate the manner in which the
recognition was to be granted.
31. Mr. Dave submitted that the provisions of
Section 19A could not be read into the provisions
of Section 10A for permission to establish a new
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medical college or new course of study, as
otherwise the grant of recognition from year to
year would deter students from taking admissions in
the medical college on account of the uncertainty
of being able to continue the MBBS course in the
event recognition was not granted for the
subsequent year.
32. Mr. Dave, however, confined his submissions
only to the question of increase in the number of
students, in respect whereof he submitted that
there could not be any fetters. Mr. Dave contended
that the curtailment of the right of an institution
to 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, was in
violation of the provisions of Article 19(1)(g) of
the Constitution, as such prohibition was not only
illogical, but was unreasonable also. Mr. Dave
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Page 43
submitted that if permission could be granted to
admit 100 students, there could be no logical
reason as to why, in order to increase the number
of students/seats, an institution would have to
wait for five years before recognition was granted
to the institution by the Central Government on the
recommendation of the Medical Council.
33. Drawing an analogy with the provisions of Order
XXXIX Rules 1, 2 and 3 of the Code of Civil
Procedure, 1908, Mr. Dave submitted that it would
always be prudent to look into the matter at length
before granting ad-interim orders. According to
Mr. Dave, before imposing conditions regarding
grant of recognition from year to year, it would be
more pragmatic to think over the matter with
greater intensity before uniformly contending that
a newly-established medical college/institution
would have to seek fresh permission/recognition
each year, before being finally granted recognition
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Page 44
after the fifth year, when the first batch of
students would graduate from the institution.
34. In support of his submission, Mr. Dave firstly
referred to the decision of this Court in Shiv
Kumar Chadha Vs. Municipal Corporation of Delhi
[(1993) 3 SCC 161], in which a three-Judge Bench of
this Court, while considering the provisions of
Order XXXIX Rule 3 C.P.C. and the proviso thereto
held that the proviso had been introduced in order
to compel the Court to give reasons as to why the
provisions relating to notice was being dispensed
with. Mr. Dave contended that instead of
prohibiting the creation of new seats in the
medical college/institution, the concerned
authorities should sit and ponder over the matter
to come to a conclusion as to whether such a bar
was necessary when the institution was already
running a medical course with a sizable number of
students.
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Page 45
35. Mr. Dave urged that the doctrine of
proportionality has been introduced by the Courts
to ensure that the action taken against any
individual did not transgress the constitutional
provisions relating to the right of an individual
to establish medical colleges/institutions as a
concomitant of the right contained in Article 19(1)
(g) of the Constitution. Mr. Dave concluded his
submissions by urging that the attempt to impose
extra-constitutional obstructions to a person’s
right to establish a medical college/ institution,
could not have been the intention of the framers of
the Constitution, who all were in favour of the
right to practise any profession or trade and
included the same as a fundamental right under Part
III of the Constitution.
36. While endorsing the submissions advanced by Mr.
Dave, Dr. Abhishek Manu Singhvi, learned Senior
Advocate, who appeared for the Respondent No.1,
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Page 46
Rama Medical College, in SLP(C)No.28996 of 2011,
submitted that there was a waste of human resources
by denying admission to deserving students who
wanted to pursue a medical course, although, the
required facilities were available, only on the
ground that such increase had not been sanctioned
by the concerned authorities. Referring to the
provisions of Sections 10A and 11(2) of the 1956
Act, Dr. Singhvi submitted that an interpretation
of Section 10 of the aforesaid Act, as was being
sought to be given, was entirely illogical,
particularly when there was no specific legislation
to the contrary. Dr. Singhvi urged that when
facilities had been found to be sufficient for 100
students, facilities providing for 150 students,
would have to be presumed to be sufficient as well.
37. Dr. Singhvi submitted that it is Section 10A of
the 1956 Act which deals with setting up of new
medical colleges/institutions or enhancement of
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Page 47
numbers. According to learned counsel, Section 11
of the 1956 Act had been wrongly pressed into
service, since it concerns the Centre’s power to
recognize degrees. Expressing himself
idiomatically, Dr. Singhvi urged that trying to
read Section 11 with Section 10A was like trying to
mix chalk and cheese and an attempt to do so would
lead to absurdity. In this connection, Dr. Singhvi
referred to a three-Judge Bench decision in Mridhul
Dhar Vs. Union of India [(2005) 2 SCC 65], in which
among several issues, one issue which fell for
consideration was about not taking into
consideration, for determining All-India quota,
those seats which were created under Section 10A of
the Act. The Hon’ble Judge recorded that according
to the Medical Council of India, only seats
recognised under Section 11 are taken into
consideration and not the seats which are permitted
under Section 10A of the Act. The provisions of
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Page 48
Regulation 8(3) of the 1999 Regulations were also
noted.
38. Having considered the said Regulation and the
effect of Section 10A and Section 11 of the 1956
Act, Their Lordships gave various directions,
including a direction that the States, through the
Chief Secretaries/Health Secretaries, should file a
report in regard to admissions with the Director
General of Health Services, by 31st October, 2004,
with the DGHS giving details about adhering to the
time schedule and the number of admissions granted
as per the prescribed quota. Dr. Singhvi urged that
the non-utilization of available resources was not
intended by the legislature and the same also
amounted to violation of the provisions of Article
21 of the Constitution.
39. Mr. Pradip K. Ghosh, learned Senior Advocate,
who appeared for the Respondent No.1 in
SLP(C)No.30332 of 2011, briefly reiterated the
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Page 49
submissions already made. Referring to the writ
petition filed by the Teerthankar Mahaveer
Institute of Management and Technology, Moradabad,
which was the petitioner in Writ Petition (C) No.
5763 of 2011, Mr. Ghosh urged that the society was
running a large number of educational institutions
in which about 8,500 students were pursuing their
respective courses. Mr. Ghosh submitted that in
2008, the said society was granted the status of a
private university and since it had all the
required facilities, it moved the said writ
petition for a mandamus on the respondents to grant
permission to the writ petitioner college to admit
150 MBBS students, instead of 100, for the academic
year 2011-12.
40. Mr. Kunal Cheema, learned Advocate, who
appeared for the petitioner in Writ Petition (C)
No.489 of 2011, Dashmesh Educational Charitable
Trust, introduced a new dimension in the
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Page 50
submissions by indicating that the expression
“recognition” had not been used by the legislature
in Section 10A of the Act. It talks of permission
to establish a medical college/institution but the
said expression finds place in the Regulations
framed by the Medical Council under Section 10A(7)
(g) read with Sections 33(fa) and 66 of the Act.
According to Mr. Cheema, the permission granted to
establish a medical college must be held to be
sufficient for allowing the medical
college/institution to deal with the problems
relating to increase in the number of students in a
given year for the medical course.
41. Mr. Mukesh Giri, learned Advocate, adopted the
submissions made by the learned counsel before him
and also questioned the stand taken on behalf of
the appellants that the Regulations contemplated a
situation where before the Section 11 stage is
reached, an institution could not apply for
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increase in the number of students, even when the
other conditions relating to infrastructure were
fulfilled.
42. As indicated at the beginning of this judgment,
in these matters we are mainly concerned with the
interpretation of Sections 10A and 11, together
with Sections 10 and 33 of the Indian Medical
Council Act, 1956. The Division Bench of the High
Court, while considering the decision of the
learned Single Judge, has laid undue stress on the
expression “recognition by the Medical Council of
India”, used in the 2000 Regulations, since such
expression has been used in a completely different
sense other than granting recognition to a medical
college/institution for the purposes of Sections
10B and 11 of the 1956 Act. The said expression
has to be read and understood as meaning that the
concerned medical college/institution was
recognised by the Medical Council of India as
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Page 52
having the capacity to run such an institution. It
is amply clear from Section 10A that what is
contemplated thereunder is permission for
establishing a new medical college, which is to be
granted by the Central Government upon the
recommendation of the Council. The use of the
expression “recognition” in the Regulation does not
affect or alter the intention of the legislature
expressed in unambiguous terms in Section 10A as
well as in Sections 10B and 11 of the 1956 Act.
Both the 1956 Act and the Regulations framed by the
Medical Council make it very clear that while the
Central Government has the authority to recognize
the degree awarded by a newly-established medical
college/institution, it does so on the evaluation
made by the Medical Council and its subsequent
recommendation.
43. By pursuing the line of reasoning adopted by
the learned Single Judge, the Division Bench
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allowed itself to be led into the error of coming
to a finding that once permission/recognition was
granted under Section 10A of the 1956 Act, it gave
the grantee permission to run a complete course.
The Division Bench led itself further into the
quagmire created by it by dividing Regulation 3(1)
into two parts in the following manner :
a) The medical college/institution must be recognised by the Medical Council of India for running Bachelor of Medicine and Bachelor of Surgery/Post Graduate Course;
however
b) The medical college/institute which is not yet recognised by the Medical Council of India for the award of MBBS degree may apply for increase of intake in Post Graduate courses in pre-clinical and para-clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine & Community Medicine at the time of 4th renewal i.e. along with the admission of 5th Batch for the MBBS Course.
44. The interpretation sought to be given to
Regulation 3(1) in the manner aforesaid portrays a
totally wrong understanding of the scheme of the
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Act itself and the all-pervading presence of the
Medical Council of India in the process of grant of
recognition for running of medical colleges/
institutions. The said reasoning has also led the
Division Bench to misconstrue the provisions of
Sections 10B and 11 of the 1956 Act as to the right
given to a medical college/institution, which has
been established without the permission of the
Central Government as provided in Section 10A of
the Act, to increase its admission capacity.
Following the reasoning of the Single Judge, the
Division Bench failed to see that Regulation 3(1)
of the 2000 Regulations made it amply clear that
those institutions which were yet to be recognised
could apply for a Post-Graduate Course in subjects
which were not part of the regular Post-Graduate
Courses which were available to those who were in
possession of a recognised MBBS degree. Both the
Single Judge and the Division Bench of the High
Court seem to have ignored the provisions of the
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1999 and 2000 Regulations, framed by the Medical
Council of India under the provisions of Sections
10A and 33, of the 1956 Act. It may be of interest
to note that Section 33, which empowers the Medical
Council to frame Regulations, provides in Sub-
Sections (fa) and (fb), the right to the Medical
Council to frame a scheme in terms of Sub-Section
(2) of Section 10A and also in regard to any other
factors under Clause (g) of Sub-Section (7) of
Section 10A. It is quite clear that the legislature
has given the Medical Council of India wide
authority to take all steps which are necessary to
ensure that a medical institution, either at the
time of establishment, or later at the time of
applying for increase in the number of seats, has
the capacity and the necessary infrastructure, not
only to run the college, but also to sustain the
increase in the number of seats applied for. To
that extent, since the Act is silent, the
Regulations which have statutory force will be
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applicable to the scheme as contemplated under the
Act. We repeat that by allowing itself to get
confused with the use of the expression
“recognition” in Regulation 3(1) of the 2000
Regulations, both the learned Single Judge and the
Division Bench of the High Court came to the
erroneous conclusion that once permission had been
granted under Section 10A to establish a new
medical college/institution, the question of having
to take fresh permission each year for any
subsequent steps to be taken after grant of such
permission till the fifth year of the course was
completed, did not arise.
45. The aforesaid position would be doubly clear
from the provisions of Sub-Section (3) of Section
10B, which, in no uncertain terms, provide that
where any medical college increases its admission
capacity in any course of study or training, except
with the previous permission of the Central
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Government in accordance with the provisions of
Section 10A, no medical qualification granted to
any student of such medical college on the basis of
the increase in its admission capacity, shall be a
recognised medical qualification for the purposes
of the Act. In other words, without the previous
permission of the Central Government within the
scheme, as prescribed under Section 10A, i.e.,
without the recommendation of the Medical Council,
any degree granted would not be recognised as a
medical degree which would entitle such degree
holder to function as a medical practitioner.
46. There is no getting away from the fact that
Section 10A lays down the criteria for grant of
permission for establishment of a new medical
college and that Section 10B supplements the same
by making it clear that even while increasing the
number of seats in a medical college/institution,
the procedure indicated in Section 10A, and in
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particular Section 10A(2), would have to be
followed. At every stage, it is the Council which
plays a very important role in either the grant of
permission to establish a new medical college or to
increase the number of seats. Furthermore, on
account of the Regulations of 1999 and 2000, the
norms relating to eligibility criteria, as set out
in the 1999 Regulations, as also in the 2000
Regulations, have to be complied with, either for
the purpose of grant of permission for establishing
a new medical college or for introducing a new
course of study along with the intention of
increasing the number of students in the medical
institution.
47. In Part II of the 2000 Regulations, which deals
with the scheme for obtaining the permission of the
Central Government to increase the admission
capacity in any course of study or training,
including Post Graduate course of study or
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training, in the existing medical colleges/
institutions, another set of “qualification
criteria” has been set out in Regulation 3(1) which
has created some confusion in the minds of the
learned Judges in the High Court by use of the
expression “recognised by the Medical Council of
India”. As indicated hereinbefore, what it seeks
to indicate is that for the purpose of applying for
increase in the number of seats, the medical
college must be one which, in the opinion of the
Medical Council, was capable of running the
Bachelor of Medicine and Bachelor of Surgery/Post-
graduate Course. It also provides that the medical
college/institute which is not yet recognised by
the Medical Council for the award of MBBS degree,
may also apply for increase of intake in Post
Graduate Course in pre-clinical and para-clinical
subjects such as Anatomy, Physiology, Biochemistry,
Pharmacology, Pathology, Microbiology, Forensic
Medicine and Community Medicine, at the time of
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fourth renewal, i.e, along with the admission of
the fifth batch for the MBBS Course, which are
courses not connected with the regular course of
study. In fact, the controversy which surfaced in
Nivedita Jain ’s case (supra) that the Regulations
framed by the Medical Council of India under
Section 10A read with Section 33 of the 1956 Act,
were directory in nature, was subsequently set at
rest by the Constitution Bench decision in Dr.
Preeti Srivastava ’s case (supra), wherein the view
expressed in Nivedita Jain ’s case was overruled.
48. In view of the decision of the Constitution
Bench, it is not necessary for us to refer to the
other decisions cited both on behalf of the Medical
Council of India and the respondents, since, in our
view, the position is quite clear that in terms of
the scheme of the Act and the Regulations framed by
the Medical Council of India, it is the Central
Government which is empowered to grant recognition
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to a medical college or institution on the
recommendation made by the Medical Council of
India. The role of the Medical Council of India in
the grant of recognition to a medical
college/institution is recommendatory and the
Council has no power to grant recognition to a
medical institution. Such power lies with the
Central government. As pointed out by Mr. Cheema,
no provision is available under the Act relating to
grant of recognition of a medical
college/institution, since Section 10A speaks only
of permission and not recognition. The same has
been supplemented by the provisions of the 1999 and
2000 Regulations for the purpose of Section 10A(7)
(g) of the Act.
49. For the reasons aforesaid, we are unable to
agree with the reasoning of either the learned
Single Judge or the Division Bench of the High
Court in arriving at the finding that once
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permission had been granted under Section 10A of
the Act, it would amount to grant of recognition
and, thereafter, the medical college/institution,
was free to enhance the number of seats without the
permission either of the Council or the Central
Government.
50. We, therefore, have no hesitation in setting
aside the judgments, both of the learned Single
Judge as also that of the Division Bench of the
High Court, and the directions given to increase
the number of seats from 100 to 150 in the MBBS
course run by the writ petitioners. Since the 2000
Regulations provide for a newly-established medical
college/institution to seek permission each year to
continue with the MBBS course till the first batch
of the students graduated, in our view, the
position is quite clear that the recognition
referred to in Sections 10B and 11 of the 1956 Act
would have to relate to the grant of recognition to
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a medical institution under Section 11 for the
purpose of recognition of its qualifications as a
medical degree, which would entitle the holder
thereof to practise medicine.
51. Consequently, upon setting aside the judgments
of the learned Single Judge and the Division Bench
and the directions contained therein, we also make
it clear that this will not prevent the medical
colleges/institutions from applying for increase in
the number of students, provided such application
fulfils the conditions and criteria of Section 10A
and the Regulations framed thereunder by the
Medical Council of India.
52. The appeals arising out of SLP(C)Nos.28996 and
30332 of 2011, preferred by the Medical Council of
India and the appeal arising out of SLP(C)No.30338
of 2011, preferred by the Board of Governors,
against the judgment and order dated 13th October,
2011, passed by the Delhi High Court in Letters
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Page 64
Patent Appeal Nos. 820, 819 and 816 of 2011
respectively, along with the appeal arising out of
SLP(C)No.3732 of 2012, preferred by the Medical
Council of India against the judgment and order
dated 14th November, 2011, passed by the Punjab and
Haryana High Court in Civil Writ Petition No.16235
of 2011, are allowed. The impugned judgments and
orders passed by the Delhi High Court, as also the
Punjab and Haryana High Court, are set aside.
53. Consequently, Writ Petition (C) No.457 of 2011,
filed by the School of Medical Sciences & Research,
Sharda University; Writ Petition (C) No.458 of
2011, filed by Teerthanker Mahaveer Institute of
Management & Technology Society, Moradabad; and
Writ Petition (C) No.489 of 2011, filed by Dashmesh
Educational Charitable Trust, are dismissed, as the
reliefs prayed for therein are in direct conflict
with the provisions of Section 10A of the 1956 Act
and Regulation 8(3) of the 1999 Regulations.
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54. Having regard to the facts involved, all the
parties in each of the matters will bear their own
costs.
………………………………………………………J. (ALTAMAS KABIR)
………………………………………………………J. (J. CHELAMESWAR)
New Delhi Dated : 4.7.2012
6