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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION [C] NO.15043 OF 2015

Padmashree Dr. D.Y. Patil Medical College ... Petitioner

Vs.

Medical Council of India & Anr. ... Respondents

J U D G M E N T

ARUN MISHRA, J.

1. The petitioner has filed the present special leave petition aggrieved by the

judgment and order dated 5.5.2015 passed by a Division Bench of the High

Court of Delhi in L.P.A. No.235/2015 thereby reversing the judgment and order

passed by the Single Bench in the matter of increase of seats for MBBS course

from 150 to 250 from the academic session 2015-16. The petitioner preferred

writ  petition  before  the  Single  Bench  of  the  High Court  of  Delhi  on  being

aggrieved by the rejection of its application by the Central Government on the

ground that essentiality certificate was not filed along with the application form.

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The petitioner claimed that it had filed the application for increase in the intake

capacity on 30.8.2014. The essentiality certificate could not be submitted by the

petitioner as it had not been issued to it by the Government of Maharashtra. It

was  issued  on  3.9.2014  and  was  submitted  to  the  Central  Government  on

5.9.2014. On 16.10.2014 the Central Government returned the application on

the ground that the essentiality certificate and the consent of affiliation were not

submitted by the petitioner along with the proposal dated 1.9.2014. The  last

date of submitting the duly completed application was over on 31.8.2014. The

petitioner  was  advised  to  submit  a  fresh  application  for  the  academic  year

2016-17. On 24.10.2014, the petitioner requested for condonation of delay in

submitting  the  essentiality  certificate.  Thereafter,  the  petitioner  filed  a  writ

application which was allowed vide order dated 8.4.2015 by the Single Bench

of the High Court. On 17.4.2015, the Medical Council of India (for short “the

MCI”) filed a Letters Patent Appeal No.235/2015 as against the judgment and

order passed by the Single Bench which was allowed vide judgment and order

dated 5.5.2015. Hence, the petitioner has assailed the same in the present special

leave petition.

2. A Division Bench of the High Court has, inter alia, relied upon a decision

of this Court in Educare Charitable Trust v. Union of India & Anr.  [AIR 2014

SC 902] and held that for the present academic session 2015-16, no direction

can be issued due to time schedule.

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It  was  submitted on behalf  of  the  petitioner  that  once  the  essentiality

certificate  was  submitted  by  it,  the  application  could  not  have  been

returned/rejected in a mechanical manner due to the aforesaid deficiency and

the delay ought to have been condoned.  In the circumstances,  as  delay was

occasioned by the Government of Maharashtra, it was beyond the control of the

petitioner. Illegality has been committed in rejecting the petitioner’s prayer to

condone the delay on the ground that essentiality certificate was not submitted

within the prescribed time limit. Reliance has been placed on the decisions of

this Court in S.L.P. [C] No.14838/2015 –  Ponnaiyah Ramajayam Institute of

Science  &  Technology  Trust  v.  MCI  &  Anr.  decided  on  15.7.2015,  C.A.

No.8054/2013 – Royal Medical Trust (Regd.) v. Union of India & Anr. decided

on 10.9.2013; and W.P. [C] No.414/2015 –  Pondicherry Institute of Medical

Sciences & Anr. v. Union of India & Anr. ordered on 7.8.2015.

3. Per contra, it was contended on behalf of the respondents that the MCI is

a  statutory  body and  is  governed by the  Act  and  the  rules  and also  by the

directions issued by this Court for strict adherence to the time schedule and it

has  an  obligation  towards  maintenance  of  highest  standards  of  medical

education.  Time schedule and regulations are binding and mandatory. Under

section 10A of the Indian Medical Council Act, 1956 (hereinafter referred to as

“the Act of 1956”) prior permission of the Central Government for establishing

any medical college or starting any higher course of study has to be obtained.

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Increase in the intake capacity is governed by “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 Postgraduate Course of Study or Training) Regulations,

2000 (hereinafter referred to as “the Regulations of 2000”). The Regulations

require the essentiality certificate to be necessarily appended to the application

form.

4. It  is  also  submitted  by  the  MCI  that  the  criteria  set  out  in  the

Establishment  of  Medical  College  Regulations,  1999  is  also  required  to  be

fulfilled. The schedule thereof prescribes the time schedule. The rejection of the

application  is  appropriate  as  incomplete  applications  cannot  be  entertained.

Time schedule  is  required to  be observed as held by this  Court  in umpteen

number of decisions and now if any inspection is ordered, it can be only for the

academic  year  2016-17  and  not  for  the  academic  session  2015-16.  The

decision-making process not only involves inspection but the decision by other

competent bodies of the MCI and, thereafter, by the Central Government. The

decision of the respondents is just and proper, no case for interference is made

out in breach of time-schedule to make the inspection for the academic session

2015-16.

5. Section 10A of the Act of 1956 mandates prior permission to be obtained

from  the  Medical  Council  of  India/Government  of  India  to  establish  new

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medical  colleges/opening of  a new or higher course of  study/increase in the

admission  capacity.  Various  factors  have  been  specified  in  Section  10A(7)

which  are  to  be  taken  into  consideration  by  the  MCI  while  making  its

recommendations to the Central  Government. The Regulations of 2000 have

been framed in exercise of power under section 10A read with section 23 of the

Act of 1956. Regulation 1 requires an application to be filed before the Central

Government with permission of the State Government. Regulation 3 deals with

the  qualification  criteria.  Regulation  3(2)  requires  the  permission  letter

regarding  desirability  and  feasibility  of  having  an  increase  in  the  existing

medical college/institution, which has to be obtained by the applicant from the

respective State Government/Union Territory Administration. Regulations 1, 3,

4 and 6 are  extracted hereunder :

“SCHEME  FOR  PERMISSION  OF  THE  CENTRAL GOVERNMENT  TO  INCREASE  THE  ADMISSION CAPACITY IN ANY COUSE OF STUDY OR TRAINING (INCLUDING POST GRADUATE COURSE OF STUDY OR TRAINING)  IN  THE  EXISTING  MEDICAL COLLEGES/INSTITUTIONS.

1.  INSTRUCTIONS  TO  THE  MEDICAL  COLLEGE/ INSTITUTION:-  

For  increasing  the  number  of  seats  in  the  MBBS, Post-graduate Diploma Degree/Higher Specialty courses, the medical college/institution should conform to the regulations prescribed by the Council.  They should apply to the Central Government for this permission along with the permission of State  Government,  affiliation  granted  by  an  University recognized under University Grants Commission Act or State

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Act or Central Act and in conformity with the Medical Council of  India  Regulations,  along  with  documentary  evidence  to show  the  additional  financial  allocation,  provision  for additional  space  and  equipment  and  other  infrastructural facilities and provision for recruitment of additional staff as per the Council norms.  

x x x x x

3. QUALIFICATION CRITERIA:-  

The  medical  college/institution  shall  qualify  to  apply  for increasing  the  number  of  admission  in  MBBS/PG Diploma/Degree/Higher  Specialty  Course  in  the  existing medical  college/institution  if  the  following  conditions  are fulfilled :-  

1.  (1)  The  Medical  College/Institution  is  recognized  by  the Medical Council of India for running MBBS/PG Diploma/PG Degree/Higher Speciality Courses ;  

The above Clause has been substituted with the following in terms of Notification published. on 29.12.2009 in the Gazette of India and the same is also annexed at ANNEXURE-III : -

"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 medical  college/institute  which is  not  yet  recognized 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".  

Or  

(2)  Medical  College/Institution  has  received  the  formal permission of the Central Government under section 10A of

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the Indian Medical Council Act, 1956 (102 of 1956) and has started  the  post-graduate  course  in  which  the  increase  in admission capacity is sought.

2. The permission letter regarding desirability and feasibility of  having  an  increase  of  seats  in  the  existing  medical College/institution for aforesaid Courses has been obtained by the  applicant  from  the  respective  State  Government  or  the Union Territory Administration.  

3.  Letter  of  University's  permission  for  increasing  the admission  capacity  in  any  course  of  study  or  training (including a postgraduate course of study or training) in seats in the existing medical college/institution has been obtained by the medical college/institution from the university to which it is affiliated.  

The  Clauses  "3.2  and  3.3"  have  been  substituted  with  the following in terms of Notification published on 29.12.2009 in the  Gazette  of  India  and  the  same  is·  also  annexed  at ANNEXURE-III :-  

"3.2 That the. Essentiality Certificate in the prescribed format regarding  no  objection  of  the  State  Government/Union Territory Administration for opening of 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) in. the medical college/institution and availability of the adequate clinical material as per the Council  Regulations'  have  been  obtained  by  the  applicant from  the  concerned  State  Government/Union  Territory Administration, as the case may be.  

3.3 That Consent of Affiliation in the prescribed format with respect  to  opening  of  New  or  Higher  Course  of  Study  or Training  (Including  Post  Graduate  Course  of  Study  or Training) and Increase of Admission Capacity in any Course

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of Study or Training (Including a Post  Graduate Course of Study  or  Training)  has  been  obtained  by  the  Medical College/institution  from  the  University  to  which  it  is affiliated.”

4 . That the medical college/institution has a feasible and time bound  programme  to  provide  additional  equipment  and infrastructural facilities like the number of staff, space, funds, equipment and teaching beds etc.,  for increased numbers as laid down in the Medical Council of India Regulations.  

5.  The ratio  of  teaching staff  and students  shall  be as  laid down  in  the  Medical  Council  of  India  Regulations  on Minimum Standard Requirements for the Medical College for 50/100/150 Admissions in a medical college for Bachelor of Medicine  and  Bachelor  of  Surgery  (MBBS)  and  the Post-graduate  Medical  Education  Regulations  for post-graduate admissions .  

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

4. REGISTRATION OF APPLICATION:-  

Incomplete  application  will  be  returned  to  the  medica1 college/institution  by  the  Ministry  of  Health  and  Family Welfare along with the enclosures and application fee.  

Application found complete in all respects will be registered by the Ministry of Health and Family Welfare and forwarded to Council within 30 days from the date of receiving it all for evaluation  and  recommendations.  Acceptance  of  the application will only signify the acceptance of application for evaluation.  It  will,  however, under  no  circumstances  mean approval of the application for grant of permission.  

5. x x x x x  

6. EVALUATION BY MEDICAL COUNCIL OF INDIA :-

The  Council  shall  evaluate  the  application  to  accept  the desirability  and  prima  facie  feasibility  for  increasing  the admission capacity at the existing medical college/institution

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and the capability of the medical college/institution to provide the necessary resources and infrastructure for the scheme.  

While evaluating the application, the Council may seek further information,  clarification  or  additional  documents  from  the applicant  as  considered  necessary  and  shall  carry  out  a physical inspection to verify the information, clarification or additional  documents  supplied  by  the  medical  college.  The dates  of  receipt  of  application  for  increase  in  admission capacity  in  postgraduate  courses  and  processing  dates  are given in the schedule. The dates of receipt of application and processing of  applications in respect  of increase of seats  in MBBS course  shall  be  as  per  the  schedule  included  in  the Establishment of Medical College Regulations, 1999”.

6. Appendix II  to  format  of  application is  also  relevant  and the  same is

extracted below :

“APPENDIX -II

FORMAT OF APPLICATION FOR PERMISSION OF THE CENTRAL GOVERNMENT TO INCREASE THE ADMISSION

CAPACITY IN MEDICAL COLLEGES/INSTITUTIONS.  

APPLICATION FOR INCREASE IN ADMISSIONCAPACITY MBBS/ M.D. / M.S./ DIPLOMA/D.M./M.Ch./

            COURSE........................................................................  (Specify the name of the Course)

PARTICULARS OF THE APPLICANT  

1. NAME OF THE APPLICANT (IN BLOCK LETTERS)

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2. ADDRESS (IN BLOCK LETTERS)  

3. REGISTERED OFFICE (NO., STREET, CITY, PIN CODES, TELEPHONE, TELEX, TELEFAX)  

4.  CONSTITUTION  (STATE  GOVERNMENT/UNION TERRITORY  ADMINISTRATION/  UNIVERSITY/ AUTONOMOUS BODY, SOCIETY/TRUST)  

5.  REGISTRATION/INCORPORATION  (NUMBER  AND DATE)  

6. NAME OF AFFILIATING UNIVERSITY  

7.  NO.  OF  SEATS  APPROVED  AND  DATE  OF RECOGNITION BY MEDICAL COUNCIL OF INDIA.  

SIGNATURE  OF  APPLICANT NAME AND DESIGNATION OF MEDICAL COLLEGE.  

LIST OF ENCLOSURES  

1. Attested copy of the Essentiality Certificate issued by the respective  State  Government/Union  Territory  Administration on the prescribed proforma.  

2.   Attested  Copy of  the  Consent  of  Affiliation  issued  by  a recognised University.

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3.  Authorization  letter  addressed  to  the  Bankers  of  the Applicant  authorizing  the  Central  Government/Medical Council of India to make independent enquiries regarding the financial track record of the applicant.  

4. Attested copy of the letter from Medical Council of India approving recognition of the college/institution, if any.  

Note:  All  the  copies  shall  be  attested  by  any  gazetted officer. ............. "  

Appendix to format of application for permission makes it clear that an

attested  copy  of  essentiality  certificate  is  required  to  be  enclosed   with  the

application form so as to make it complete. It is also apparent from Regulation 6

that the time schedule included in the Establishment of New Medical College

Regulations, 1999 (for short “the 1999 Regulations”) is applicable for increase

in the intake capacity also.  

7. The 1999 Regulations, as amended in 2012, prescribe different dates in

its time schedule which are extracted below :

“1. (i) These  Regulations  may  be  called  the “Establishment of Medical College Regulations (Amendment), 2012.

(ii) They  shall  come  into  force  from the  date  of  their publication in the Official Gazette” .......

6. In  the  “ESTABLISHMENT  OF  MEDICAL COLLEGE  REGULATIONS,  1999”,  in  “SCHEDULE  FOR RECEIPT OF APPLICATION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGES AND PROCESSING OF THE APPLICATIONS BY THE CENTRAL GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA”, the following shall be substituted as under :-

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SCHEDULE  FOR  RECEIPT  OF  APPLICATIONS  FOR ESTABLISHMENT  OF  NEW  MEDICAL  COLLEGES  AND PROCESSING OF THE APPLICATIONS BY THE MEDICAL COUNCIL OF INDIA.

S.  No.

Stage of processing Last Date

1. Receipt  of  applications  by  the Council

From  1st August to  31st August (both  days inclusive) of any year

2. Issue  of  Letter  of  Intent  by the Council

30th April

3. Receipt  of  reply  from  the applicant  by  the  Council  for consideration for issue of Letter of  Permission

31st May

4. Issue of Letter of Permission by the Council  

15th June

Note :   The time schedule indicate above may be modified by the  Central  Government,   for  reasons  to  be  recorded  in writing, in respect of any class or category of applications.    

Note.---(1) The information given by the applicant in Part I of the  application  for  setting  up  a  medical   college  that  is information  regarding  organisation,  basic  infrastructural facilities,  managerial  and  financial  capabilities  of  the applicant shall be scrutinised by the Medical Council of India through  an  inspection  and  thereafter  the  Council  may recommend  issue  of  letter  of  intent  by  the  Central Government.

(2)    Renewal of permission shall not be granted to a medical college if the above schedule for opening a medical college is

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not adhered to and admissions shall not be made without prior approval of the Central Government.”  

It  is  apparent  that  the  application  is  required  to  be  submitted  to  the

Central  Government  from 1st to  31st August  and  thereafter  the  applications,

which are in order, are to be forwarded by the Central Government to the MCI

and the MCI, in turn, is required to send its recommendations and the Central

Government  has  to  issue  a  Letter  of  Intent  by  30th of  April  next  year.  The

applicant has to send reply to the Central Government by 31st May. For issue of

letter of permission by the Council last date was 15.6.2015.  

8. Reliance  has  been  placed  by the  MCI  on  Dental  Council  of  India  v.

S.R.M. Institute of Science & Technology & Anr. [(2004) 9 SCC 676] in which

this Court has laid down that an incomplete application cannot be entertained.

This Court held thus :

“10. In this case,  the High Court made an interim order to complete  the  processing  of  the  application  including inspection even in the absence of the permission or essentiality certificate  from  the  State  Government  in  terms  of  the Regulations  framed  by  the  Dental  Council  of  India.  The process  of  the  courts  or  the  process  of  law  should  not  be allowed to subvert the law. In cases of recognition of dental colleges  or  starting  of  higher  courses,  this  Court  has  in several cases including Islamic Academy of Education v. State of  Karnataka [2003 (6)  SCC 697],  State of  Maharashtra v. Indian Medical Assn. [2002 (1) SCC 589] etc. held that they are of mandatory character and have got to be complied with. When that is the position in law, the High Court ought not to

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have made an interim order to process the application even in the  absence  of  the  permission  or  essentiality  certificate because  the  application  will  not  be  complete  without  being accompanied by permission or essentiality certificate by the State  Government  along  with  certain  other  documents.  An incomplete  application  cannot  be  processed  either  by  the Central  Government  or  the  Dental  Council.  The  argument advanced on behalf of the respondents will set at naught the law  that  in  certain  cases  the  courts  need  not  insist  on production of permission or essentiality certificate of the State Government, particularly, when the regulations insist upon the same.  To decide  such  a  matter  even  in  the  absence  of  the Dental Council and the State Government as if they have no role  to  play  in  the  matter  is  only  to  bypass  the  law, when statutory  duties  have  been assigned  and each  one  of  those authorities has got a separate role to play. It may be that the Government of India takes the ultimate decision in the matter but to state that these authorities only aid the Government of India and hence it is not necessary to make them a party to the proceedings  is  not  at  all  appropriate  or  acceptable  to  us. However, that  would  not  be  the  end  of  the  matter. In  the present case, pursuant to the interim direction issued by the High Court, inspection has taken place and a report has been submitted  by  an  inspection  team  appointed  by  the  Dental Council of India which is kept in a sealed cover by the Dental Council of India. It would be more appropriate to process the application on the first respondent furnishing the permission or  essentiality  certificate  and  other  relevant  documents  as provided  under  the  relevant  Regulations  and  the  scheme framed for the purpose of filing an application for starting a new  or  higher  course  in  the  college.  On  furnishing  such permission or essentiality certificate, the Dental Council and the  Government  of  India  shall  take  appropriate  steps  as provided under the relevant Act and Rules or Regulations. Shri P.P. Rao submits that a time of eight weeks may be granted to furnish  the  permission  or  essentiality  certificate  to  the Government  of  India.  We,  therefore,  direct  that  if  such permission  or  essentiality  certificate  issued  by  the  State Government is furnished within a period of eight weeks, the proposal  of  the  first  respondent  for  starting  new/higher courses shall be processed by the Dental Council of India and the Government of India and appropriate orders made thereon within eight weeks thereafter”.

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This Court has laid down that incomplete applications cannot even be

processed by the Central Government or the Dental Council. The application

will  not  be  complete  without  being  accompanied  by  permission  letter  or

essentiality certificate issued by the State Government.

9. To  contend  that  compliance  with  regulations  is  necessary  to  ensure

standard medical education, reliance has also been placed on behalf of the MCI

on a decision of this Court in  K.S. Bhoir etc. v. State of Maharashtra & Ors.

[(2001) 10 SCC 264] which is as follows :

“8. Coming  to  the  first  question,  since  long  time  past, establishing  of  a  medical  college  and  medical  education therein are governed by the Indian Medical Council Act, 1956 (hereinafter  referred  to  as  “the Act”)  and the Dentists  Act, 1948. Despite there being such provisions, it was experienced that  a  large  number of  persons  and institutions  established medical  colleges  without  providing  therein  the  minimum necessary and proportionate infrastructure i.e.  teaching and other facilities required for them. As a result it was found that there was sharp decline in the maintenance of higher standard of medical education. In order to put a check on unregulated mushroom  growth  of  medical  colleges  and  maintain  high standard of medical education, it was thought to bring more stringent provisions in the Act. With the aforesaid view of the matter, in the year 1993, Sections 10-A, 10-B and 10-C were inserted in the Medical Council  Act by amending Act 31 of 1993.  Similarly,  the  provisions  of  Sections  10-A,  10-B  and 10-C  were  also  incorporated  in  the  Dentists  Act,  1948. Sub-section (1)  of  Section 10-A of  the Act  provides  that  no person shall establish a medical college or no medical college shall  open a  new or  higher  course  of  study  or  training or increase  its  admission  capacity  in  any  course  of  study  or training except  with the previous  permission  of  the  Central

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Government obtained in accordance with the provisions of the Act.  Sub-section  (2)  thereof  provides  that  every  person  or medical  college  desirous  of  opening  a  medical  college  or increase  its  admission  capacity  in  any  course  of  study  or training, including a postgraduate course of study or training shall submit to the Central Government a scheme prepared in accordance  with  the  provisions  of  the  Act  and  the  Central Government  shall  refer  the  said  scheme  to  the  Medical Council  for  its  recommendation.  Sub-section  (3)  of  Section 10-A further provides that on receipt of such a scheme by the Council,  it  may  obtain  such  other  particulars,  as  may  be considered  necessary  and  consider  the  said  scheme  having regard to the factor referred to in sub-section (7) of Section 10-A of the Act and send its recommendations to the Central Government.  Under  sub-section  (4)  of  Section  10-A,  the Central Government, on receipt of the recommendation of the Medical  Council  is  empowered  to  either  approve  or disapprove the scheme. It may grant or refuse permission to open a medical college or increase its admission capacity. If it is  found  that  the  scheme  is  not  in  conformity  with  the provisions  of  the  Act  and Regulations  framed thereunder, it may  refuse  to  accord permission  to  increase  the  admission capacity in any course of study or training. Section 33 of the Act empowers  the Medical  Council  to  make regulations  for carrying out the purposes of the Act. The Medical Council, in exercise of power conferred by Section 33 read with Section 10-A  of  the  Act,  has  framed  regulations  known  as  “the Establishment of New Medical Colleges,  Opening of Higher Courses  of  Study  and  Increase  of  Admission  Capacity  in Medical Colleges Regulations, 1993” (hereafter referred to as “the  Regulations”).  The  said  Regulations  provide  for eligibility  criteria  to  be  complied  with  even  for  making  an application  and  part  of  the  said  Regulations  deal  with  the requirements to be complied with when any medical college applies for increase in admission capacity in the college. A perusal  of  the  provisions  of  Section  10-A  read  with  the Regulations  shows  that  it  is  mandatory  on  the  part  of  the institution or management desirous of increasing its admission capacity in any course of study to submit a scheme complying with the provisions of sub-section (7) of Section 10-A and the requirements  envisaged under the Regulations. If  any of the infrastructure facilities,  as required either under sub-section (7)  or  under  the  Regulations  are  absent,  it  is  open  to  the

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Central Government to refuse permission for increase in the admission  capacity  in  any  course  of  study  in  a  medical college.  The  object  of  compliance  with  requirements mentioned  in  sub-section  (7)  of  Section  10-A  and  the Regulations is to ensure the maintenance of highest standard of  education.  In  Medical  Council  of  India v.  State  of Karnataka [1998 (6) SCC 131] and Preeti Srivastava (Dr) v. State  of  M.P.  [1999  (7)  SCC  120], it  was  held  that  the Regulations framed by the Medical Council under Section 33 of the Act are mandatory. In Medical Council of India v. State of  Karnataka  [1998  (6)  SCC  131], while  dealing  with  the admission  made  in  excess  of  intake  capacity  fixed  by  the Council, this Court observed thus: (SCC p. 157, para 29)

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

The compliance with the requirements under the Act and the Regulations  being  mandatory,  in  the  absence  of  their compliance,  no  permission  can  be  granted  by  the  Central Government for increase in admission capacity in any course in  any  medical  college.  In  the  present  case,  the  State Government sought one-time increase in admission capacity in various medical colleges on the premise that medical colleges possessed all the facilities. This was not sufficient. What was required,  was  that  medical  colleges  desirous  of  one-time increase  in  admission  capacity  should  have  submitted  a scheme  prepared  in  accordance  with  the  Act  and  the Regulations to the Central Government. No such scheme was submitted to the Central Government and the Medical Council has no occasion to verify the sufficiency of the facilities and

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other  requirements.  There  being  no  compliance  with requirements  under  the  Act,  the  Central  Government  was justified in refusing the permission for one-time increase in the admission  capacity  in  the  medical  colleges.  We  do  not, therefore,  find  any  infirmity  in  the  order  of  the  Central Government when it refused to grant permission to the State Government to have one-time increase in admission capacity in Medicine and Dentistry in various medical colleges located in the State of Maharashtra.

10. The decision in  Govt. of A.P. & Anr. v. Medwin Educational Society &

Ors. [(2004) 1 SCC 86] regarding essentiality certificate has also been pressed

into  service  by  learned  counsel  for  the  respondent-MCI  which  is  to  the

following effect :

“23. It is not in dispute that one of the qualifying criteria to render an association eligible for permission to set up a new medical and dental college is to the following effect:

“Essentiality  certificate  regarding  the  desirability and  feasibility  of  having  the  proposed  medical college/dental college at the proposed location has to be obtained by the applicant from the respective State  Governments  or  the  Union  Territory Administration  and  that  the  adequate  clinical material is available as per the Medical Council of India’s requirements.”

24. The statutory requirements as laid down in the Act and the Regulations are, therefore, required to be complied with before application filed by the person or association for setting up a medical college is taken up for consideration.”

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11. The time  schedule  which  has  statutory  force,  has  been  ordered  to  be

strictly adhered to by this Court in a plethora of decisions. This Court in Mridul

Dhar (Minor) & Anr. v. Union of India & Ors. [(2005) 2 SCC 65] has laid down

that  for  establishment  of  new  medical  colleges/increase  in  intake  capacity,

application  should  be  filed  within  the  prescribed  period  and  only  such

applications which are complete in all respects, deserve/have to be treated as

applications under section 10A. The complete applications are required to be

forwarded to the MCI within the time frame that is by 30th September. In Mridul

Dhar (supra), it was held as under :

“27. In exercise of the powers conferred by Section 10-A read with Section 33 of the Act, MCI made the establishment of new medical  colleges,  opening  of  higher  courses  of  study  and increase of admission capacity in the Medical Council of India Establishment  of  Medical  College  Regulations,  1999.  The Regulations, inter alia, provided as a qualifying criterion that the  eligible  organisation  shall  abide  by  the  Indian Medical Council  Act,  1956  as  modified  from  time  to  time  and  the Regulations framed thereunder and shall qualify to apply for permission  to  establish  new  medical  colleges  only  if  the conditions therein are fulfilled. One of the conditions is that essentiality certificate regarding the desirability and feasibility of  having  the  proposed  medical  college  at  the  proposed location  has  been  obtained  and  that  the  adequate  clinical material  available  as  per  Medical  Council  of  India requirements  has  been  obtained  by  the  applicant  from  the respective  State  Government  or  the  Union  Territory Administration.  It  also provides  that  the applicant  own and manage a hospital of not less than 300 beds with necessary infrastructural facilities and capable of being developed into a teaching institution as prescribed by the Medical Council of India, in the vicinity of the proposed medical college. MCI has also  made  the  establishment  of  the  Medical  College

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Regulations, 1999 in exercise of powers conferred by Section 10-A and Section 33 of the Act, inter alia, prescribing the form of  essentiality  certificate  as  a  qualifying  criterion  to  make application  for  permission  to  establish  a  medical  college. These  Regulations  stipulate  that  essentiality  certificate  in Form 2 regarding no-objection of the State Government/Union Territory Administration for the establishment of the proposed medical  college  at  the  proposed  site  and  availability  of adequate  clinical  material  as  per  the  Council  Regulations, have  been  obtained  by  the  person  from  the  State Government/Union  Territory  Administration  concerned.  The form of essentiality certificate requires a certificate from the competent authority to the following effect:

“It is certified that: (a) The  applicant  owns  and  manages  a

300-bedded hospital which was established in….

(b) It  is  desirable  to  establish  a  medical college in the public interest.

 (c)     Establishment of a medical college at … by (the name of society/trust) is feasible.

(d) Adequate  clinical  material  as  per  the Medical Council of India norms is available.

   It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central  Government,  the State Government shall  take  over  the  responsibility  of  the  students already admitted in the college with the permission of the Central Government.”

x x x x x

30. It  cannot  be  doubted  that  proper  facilities  and infrastructure  including  a  teaching  faculty  and  doctors  is absolutely  necessary  and  so  also  the  adherence  to  time schedule for imparting teaching of highest standards thereby

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making  available  to  the  community  best  possible  medical practitioners.  It  cannot  be  said  that  such  facilities  are  not insisted  upon for  Section 10-A seats.  No instance  has been brought  to  our  notice  where  a  Section  10-A  seat  in  a government college has not been recognised under Section 11. The all-India quota seats are applicable only to government colleges. In many colleges, full-fledged seats for all intent and purposes insofar as medical education is concerned, whether in  a  new medical  college  or  in  the  increased  intake  in  an existing college, are continuing as Section 10-A seats. Prima facie, we see no reason why such seats shall not be taken into consideration  for  calculating 15% share of  all-India  quota. The 15% quota seats get substantially reduced by not taking into  account  Section  10-A  seats.  We  direct  the  Central Government, DGHS and MCI to examine this aspect in detail and  submit  a  report,  on  consideration  whereof  we  would finally decide the matter regarding inclusion of Section 10-A seats for working out 15% all-India quota.

x x x x x

32. Having regard to the professional courses, it deserves to be  emphasised  that  all  concerned  including  Governments, State  and  Central  both,  MCI/DCI,  colleges  — new or  old, students, Boards, universities, examining authorities, etc. are required  to  strictly  adhere  to  the  time  schedule  wherever provided  for;  there  should  not  be  midstream  admissions; admissions  should  not  be  in  excess  of  sanctioned  intake capacity  or in  excess  of  quota of  anyone,  whether  State  or management.  The carrying forward of  any  unfilled  seats  of one  academic  year  to  next  academic  year  is  also  not permissible.

x x x x x

35. Having regard to  the  aforesaid,  we  issue  the  following directions:

1 to 3.             x x x x x 4.  It  shall  be  the  responsibility  of  all  concerned  including Chief Secretaries of each State/Union Territory and/or Health Secretaries  to  ensure compliance  with the directions  of  this

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Court  and  requisite  time  schedule  as  laid  down  in  the Regulations and non-compliance would make them liable for requisite penal consequences.

x x x x x

14.  Time  schedule  for  establishment  of  new  college  or  to increase intake in existing college, shall be adhered to strictly by all concerned.

15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.”

12. This Court in Medical Council of India v. Manas Ranjan Behera & Ors.

[(2010) 1 SCC 173] has reiterated the directions issued by this Court in Mridul

Dhar’s case (supra) which is in terms following :

“2. It may be noticed in Mridul Dhar v. Union of India [(2005) 2 SCC 65] this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated,

“Time schedule provided in the Regulations shall be strictly  adhered  to  by  all  concerned  failing  which the defaulting party would be liable to be personally proceeded with.”

In view of these directions, the High Court should not have passed the impugned order.”

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13. This Court in Priya Gupta v. State of Chhattisgarh & Ors. [(2012) 7 SCC

433]  has  laid  down  that  every  person,  officer  or  authority  who  disobeys

directions of this Court of adherence to the time schedule, shall be liable to be

prosecuted  under  the  provisions  of  the  Contempt  of  Courts  Act.  Relevant

portions of the directions issued by this Court in the said case are extracted

hereunder :

“40. The schedules prescribed have the force of law, inasmuch as they form part of the judgments of this Court, which are the declared  law  of  the  land  in  terms  of  Article  141  of  the Constitution of India and form part of the Regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that  any  authority  can  have  the  discretion  to  alter  these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, university or the selection bodies constituted at the college level for allotment of seats by way of counselling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court  and the Medical Council of India Regulations.

41. Inter alia, the disadvantages are:

x x x x x

(3)  The  delay  in  adherence  to  the  schedule,  delay  in  the commencement  of  courses,  etc.  encourage  lowering  of  the standards  of  education  in  the  medical/dental  colleges  by shortening  the  duration  of  the  academic  courses  and promoting  the  chances  of  arbitrary  and  less  meritorious admissions.

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42. The  Medical  and  Dental  Councils  of  India,  the Governments  and  the  universities  are  expected  to  act  in tandem with each other and ensure that the recognition for starting  of  the medical  courses  and grant  of  admission are strictly within the time-frame declared by this Court and the Regulations.  It  has  come  to  the  notice  of  this  Court  that despite warnings having been issued by this Court and despite the  observations  made  by  this  Court,  that  default  and non-adherence  to  the  time  schedules  shall  be  viewed  very seriously, matters  have  not  improved.  Persistent  defaults  by different  authorities and colleges and granting of admission arbitrarily  and with favouritism have often invited criticism from this Court.

x x x x x

45. The maxim boni judicis est causas litium dirimere places an obligation upon the  Court  to  ensure that  it  resolves  the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to  meet  a  particular  situation  of  exception,  as  it  may pose impediments to the smooth implementation of laws and defeat the  very  object  of  the  scheme.  These  schedules  have  been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the  convenience  of  some economic  or  other  interest  of  any institution, especially, in a manner that is bound to result in compromise of the abovestated principles.

x x x x x

47. All  these  directions  shall  be  complied  with  by  all concerned, including the Union of India, Medical Council of India,  Dental  Council  of  India,  State  Governments, universities  and  medical  and  dental  colleges  and  the management  of  the  respective  universities  or  dental  and medical  colleges.  Any  default  in  compliance  with  these conditions  or  attempt  to  overreach  these  directions  shall,

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without  fail,  invite  the  following  consequences  and  penal actions:

47.1. Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court  having jurisdiction over such institution/State, etc.

47.2. The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation  of  these  directions  or  overreaching  them  by  any process  shall  tantamount  to  indiscipline,  insubordination, misconduct and being unworthy of becoming a public servant.

47.3. Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.

x x x x x

78.4. With all  the humility at our command, we request  the High Courts to ensure strict adherence to the prescribed time schedule,  process  of  selection  and to  the  rule  of  merit.  We reiterate what has been stated by this Court earlier, that except in  very  exceptional  cases,  the  High  Court  may  consider  it appropriate  to  decline  interim  orders  and  hear  the  main petitions finally, subject to the convenience of the Court. We may refer to the dictum of this Court in  Medical Council of India v. Rajiv Gandhi University of Health Sciences [2004 (6) SCC 76], SCC para 14 in this regard.

78.5. We have  categorically  returned  a  finding  that  all  the relevant  stakeholders  have  failed  to  perform  their duty/obligation  in  accordance  with  law.  Where  the  time schedules have not been complied with, and rule of merit has been  defeated,  there  nepotism  and  manipulation  have prevailed.  The stands of  various authorities  are at  variance with each other and none admits to fault. Thus, it is imperative for  this  Court  to  ensure  proper  implementation  of  the

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judgments of  this  Court  and the regulations  of  the Medical Council of India as well as not to overlook the arbitrary and colourable  exercise  of  power  by  the  authorities/colleges concerned.”

14. The MCI is required to undertake inspections and thereafter is required to

point  out  the  deficiencies  to  institutions,  invite  comments  and  send  its

recommendations to the Central Government. There are various stages which

are time-consuming and the schedule has a purpose of bringing uniformity of

commencement of academic session at the same time.      

15. In the instant case, the application was admittedly incomplete when it was

filed. Though there is a dispute whether it was filed before 31st August, 2014. It

was submitted on behalf of the MCI that it was filed on 02.09.2014. Be that as it

may. Even assuming that it was filed before 31.8.2014, admittedly it was an

incomplete application as the essentiality certificate issued by the Government

of Maharashtra was not enclosed along with the application form due to which

application  came  to  be  rejected  and  delay  has  taken  place  for  which  the

petitioner has to blame itself. A Division Bench of the High Court has relied

upon the decision in Educare Charitable Trust v. Union of India & Anr. (supra)

in which this Court has laid down thus :

"14. As per the aforesaid time-schedule, the applicant-college desirous of increasing the admission capacity is to submit the application from 1st August to 30th September. This was done by the petitioner. However, what was found that the petitioner was not meeting the qualifying criteria as on that date because

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with respect  to existing admission capacity, it  had not been recognized so far. The applications are to be forwarded by the Central Government, once they are found to be in order and meeting the qualifying criteria laid down in Regulation 19, by 31st October in respect of BDS course. This time was extended upto  31st December  in  this  year.  After  an  application  is forwarded to the DCI, DCI is supposed to evaluate the scheme for increasing admission capacity as per the procedure laid down  in  Regulation  21  which  lays  down  that  the  DCI  is required  to  ascertain  the   desirability  and  prima  facie feasibility for increasing the admission capacity at the Dental College. It is also required to satisfy itself about the capability of  the  Dental  College  to  provide  necessary  resources  and infrastructure for the scheme. DCI is even required to conduct physical inspection of the college before forming an opinion as to whether the applicant satisfies the condition of feasibility of increasing the admission capacity. This process, naturally, is time consuming. As per the time-schedule referred to above, time  upto  15th  June  is  given  for  the  DCI  to  make recommendation  to  the  Central  Government.  Such  a  report containing  its  recommendation  is  to  be  given  in  terms  of Regulation 22.  Thereafter, Central Government is required to go  into  the  said  recommendation  and  if  it  is  found  that applicant-college  deserves  the  permission  to  increase  the admission capacity, Letter  of  Permission is  to  be issued by 15th July.  This time frame is to ensure timely admissions of students.  

15. Having regard to the above, it is not possible to accede to the request of the petitioner to change the time-schedule when the last  date for admitting the students,  which was July 15, 2013, expired long ago. If the Central Government forwards the application to the DCI at this juncture, DCI shall hardly have any time to look into the feasibility of the scheme as per the requirements contained in Regulation 21. We have to keep in mind that in the schedule annexed to the Regulations 2006, six to eight months time is given to the DCI for this purpose. We are, thus, of the view that the High Court did not commit

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any  error  in  holding  that  in  the  given  circumstances mandamus could not be issued to the Central Government to exercise  its  discretionary  powers  in  a particular  manner  to modify the time-schedule.   Sanctity to the time-schedule has to be  attached.  It  is  too  late  in  the  day,  insofar  as  present academic  session  is  concerned,  to  give  any  direction.  This Court  has  highlighted  the  importance  of  cut  off  date  for starting  the  professional  courses,  particularly  medical courses,  and  repeatedly  impressed  upon  that  such  deadline should  be  tinkered  with.  (See:  Priya  Gupta  Vs  State  of Chhattisgarh  (2012)  7  SCC  433  and  Maa  Vaishno  Devi Mahila Mahavidyalaya Vs. State of U.P. (2013) 2 SCC  617)."  

This Court has reiterated the law laid down in  Priya Gupta (supra) and

the sanctity to the time schedule has to be attached.

16. In  W.P. [C]  No.705/2014  –  Royal  Medical  Trust  (Regd.)  and  Anr. v.

Union of India & Anr. decided on 20.8.2015, this Court has observed that the

Schedule must take care of following aspects :

“(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 the MCI. By very nature such inspection must have an element of  surprise.  Therefore,  sufficient  time  of  about  three  to  four months ought to be given to the MCI to cause inspection at any time and such inspection should normally be undertaken latest by January.  Surprise  inspection  would  ensure  that  the  required facilities and infrastructure are always in place and not borrowed or put in temporarily.

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(C) Intimation of  the  result  or  outcome of  the  inspection would then be communicated. If the infrastructure and facilities are  in  order,  the  concerned  Medical  College  should  be  given requisite  permission/renewal.  However  if  there  are  any deficiencies or shortcomings,s the MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.

(D) If compliance is reported and the applicant states that the deficiencies stand removed, the MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left  entirely  to  the  discretion  of  the  MCI  and  the  Central Government.  In  cases  where  actual  physical  verification  is required, the MCI and the Central Government must cause such verification before the deadline.

(E) The result of such verification if positive in favour of the Medical College concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.”   

It  is  apparent  from the aforesaid decision  and the regulations  that  the

application  at  the  first  instance  is  required  to  be  complete  and  incomplete

applications are liable to be rejected. Thereafter, there has to be an inspection

and other stages of decision-making process.

17. In S.L.P. [C] No.7846/2014 –  Medical Council of India v. N.K.P. Salve

Institute of Medical Sciences & Anr. filed against the judgment dated 24.2.2014

of the High Court of Judicature at Bombay, Bench at Nagpur, this Court vide

order dated 14.3.2014 has disposed of the special leave petition considering the

time-schedule with a direction to consider the application for starting a medical

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college for the next year provided the respondents submitted it along with the

relevant documents as per the practice in vogue.

18. The  MCI  has  also  referred  to  decision  of  this  Court  in  W.P.  [C]

No.172/2014 – Singhad Technical Education Society v. Union of India decided

on  3.5.2014  in  which  the  application  for  the  academic  year  2014-15  was

directed to be considered for the academic year 2015-16.

19. The MCI has also cited the decision in C.A. No.6564/2014 –  Medical

Council of India v. Shree Balaji Medical College & Hospital & Anr., in which

this Court vide order dated 18.7.2014 directed the application for academic year

2014-15 to be considered for next year i.e 2015-16. In another decision in S.L.P.

[C] No.14759/2014 – Medical Council of India v. Society for Advancement of

Environmental Sciences & Ors. wherein vide order dated 2.7.2014 the pending

application  for  the  academic  year  2014-15  was  ordered  to  be  treated  as  an

application for the academic year 2015-16 and the inspection was ordered to be

completed by 31.10.2014.  

20. On an analysis of the aforesaid decisions, it is crystal clear that the time

schedule is required to be strictly observed. Hence, it would not be appropriate

to  issue  any direction  for  consideration  of  petitioner’s case  for  the  ongoing

academic session 2015-16 in which inspection is yet to be made. It is too late in

the day to direct inspection for the session 2015-16 as all the dates fixed in the

time schedule are over and fixation of time schedule has a purpose behind it and

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from a particular date the session has to commence and part of seats to be filled

by a competitive examination held on all-India basis. Any relaxation in the time

schedule would make holding of examinations on an all India basis a farce and

several complications would arise. Everything cannot be allowed to go haywire.

The entire curriculum would be unsettled in case breach of time schedule is

permitted.  The power given to Central Government to relax can be exercised in

exceptional circumstances and that too without disturbing the academic session.

The decision-making process after inspection has various steps and it cannot be

ordered to be done in haste resulting in sub-standard education and half-baked

doctors.  

21. On behalf of the petitioner, reliance has been placed on a decision of this

Court  in  S.L.P.  [C]  No.14838/2015  –  Ponnaiyah  Ramajayam  Institute  of

Science and Technology Trust v. Medical Council of India & Anr. (decided on

15.7.2015) wherein this Court has directed the inspection to be made and to

submit the recommendation in a sealed cover after four weeks to this Court. No

doubt about it that the application which was filed was for the academic session

2015-16 but this Court has not decided the question whether inspection would

enure for the benefit of the ongoing academic session 2015-16 and in case on

inspection it is decided to recommend the prayer made whether it would be for

academic year 2016-17 or for the ongoing session 2015-16 and also question of

breach of  time schedule.  What  has not  been decided,  cannot be deduced by

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inferential process. What would be the ultimate recommendation on inspection,

can also not be anticipated. The requisite Committee of the MCI and Central

Government have to ultimately consider the report/recommendations. Various

aspects including time schedule are required to be taken into consideration for

issuance of any positive direction as to session.  

22. Reliance has also been placed by petitioner on a decision of this Court in

Royal Medical Trust (Regd.) v. Union of India & Anr. decided on 10.9.2013 in

which a direction was issued by this Court to make inspection and to decide the

fate of the application in accordance with law within one month’s time. The

rejection of application in a mechanical manner was held to be bad in law. A

direction  was  issued  to  pass  appropriate  orders  in  accordance  with  law. No

positive  direction  has  been  issued  by  this  Court  to  start  the  college.  Even

otherwise in view of the decisions in  Priya Gupta (supra)  and  Mridul Dhar

(supra), other decisions and recent order dated 10.8.2015 passed by this Court in

S.L.P. [C]  No.22472/2014  –  Medical  Council  of  India  v.  Subharti  Medical

College, Meerut in which the application for the session 2015-16 was dismissed

and the MCI was directed to ensure that necessary inspection for the academic

year 2016-17 shall be done within six weeks, it would be appropriate to direct

inspection for session 2016-17.  

23. Considering the statutory time schedule and that the same is already over

and in the facts and circumstances of the case, it would not be appropriate to

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direct inspection to be made and thereafter a decision to be taken for the current

academic session 2015-16 as that would be in breach of the law laid down in

various  decisions  of  this  Court  which  is  binding.  Thus,  we  direct  that  the

application which has been submitted by the college for the academic session

2015-16 be considered for the next academic session, subject to fulfilment of

other requisite formalities, as may be necessary, and thereafter the MCI shall

conduct  an inspection well-in-time as  per  the time schedule fixed under  the

Regulations of 1999. The Special Leave Petition is dismissed with the aforesaid

modification.  Ordered accordingly.

No costs.

........................................J. (M.Y. Eqbal)

New Delhi; ......................................J. August   31, 2015. (Arun Mishra)

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