Medical Council of India V. Ragupathy

[MADRAS HIGH COURT]

Medical Council of India, Represented By Its Secretary, New Delhi
v
(1) Karpaga Vinayaga Institute of Medical Sciences and Research Centre, Run By Karpaga Vinayaga Educational Trust, Represented By Its Managing Trustee, Saroja Ragupathy, Chennai; (2) Secretary (Health), Ministry of Health and Family Welfare, Government of India, New Delhi; (3) Secretary, Department of Health and Family Welfare, Government of Tamil Nadu, Chennai

S. J. MUKHOPADHAYA

20 Jun 2008
BENCH
S. J. MUKHOPADHAYA & V. DHANAPALAN

ACTS REFERRED
Indian Medical Council Act, 1956 [s. 10-A]
Societies Registration Act, 1860
Indian Trusts Act, 1882
Muslim Wakfs Act, 1954

RULES REFERRED
Medical College Regulations, 1999
CASE NO
W.A.No.623 of 2008 & M.P.Nos.1 and 2 of 2008

The Judgment was delivered by : HON'BLE JUSTICE S. J. MUKHOPADHAYA

1. The writ petitioner-Karpaga Vinayaga Institute of Medical Sciences and Research Centre (hereinafter referred to as 'the Institute'), with a view to establish a Medical College, applied in 2006 before the competent authorities. As per the Medical Council of India (for short, 'the MCI') Regulations, the third respondent was to grant Essentiality Certificate and the rest of the authorities were to process the application within specified period, but there being delay on the part of one or other authority, the writ petitioner-Institute earlier moved before this Court for certain directions. Finally, the State Government and part of the action which was to be taken by the Central Government, having been taken, as there was delay on the part of the MCI, the writ petitioner-Institute moved before this Court, wherein, by the impugned order dated 11.4.2008 passed in W.P.No.8404 of 2008, the learned single Judge directed the appellant-MCI to cause inspection of the petitioner-Institute and forward the inspection report to the second respondent-Central Government, which in turn, was directed to consider the same on merits, within a specified period. This gave rise to the present Writ Appeal preferred by the appellant-MCI.

2. Though the case was listed at the instance of the first respondent-Institute (writ petitioner) for vacating the interim order of stay granted on 3.6.2008, however, at the request of the learned counsel for the parties and taking into consideration the nature of the case, we have heard the Writ Petition itself on merits for its final disposal.

3. The brief facts of the case are that the petitioner-Institute, with a view to establish a Medical College in the beginning of 2006, applied before the State of Tamil Nadu to grant Essentiality Certificate. Application for affiliation was also filed before the Tamil Nadu Dr.M.G.R.Medical University, as per the requirement of the "Establishment of Medical College Regulations, 1999" (hereinafter referred to as "the Regulations, 1999"). As the medical education session starts during particular month of a year, under the Regulations 1999, a schedule was framed for receipt of application for establishment of a new Medical College and processing of such application by the Central Government and the MCI. As per the said schedule, application was to be filed before the Central Government, in the month of August of any year (between 1st August and 31st August). As the petitioner-Institute wanted to commence its M.B.B.S. degree course for the session 2007-2008, it applied and sent the proposal on 25.8.2006. The application was scrutinised by the Central Government which noted the absence of Essentiality Certificate on 1.9.2006, so no order was passed. At that stage, the petitioner-Institute moved before this Court in W.P.No.11543 of 2007, which was disposed of on 29.3.2007 with a direction to the State Government to decide the representation with reference to the Essentiality Certificate.

4. As the petitioner-Institute could not obtain the Essentiality Certificate, even by July 2007, on 16.8.2007, it filed an application before the Central Government with a request to treat its representation as proposal for the session 2008-2009. It is only after two years since 2006, the State Government granted the Essentiality Certificate to the petitioner on 29.2.2008, whereinafter, as per the schedule, by its letter dated 14.3.2008, the Central Government forwarded the proposal to the MCI for its evaluation and report.

5. As per the schedule to process the application, the Central Government was to send its letter by 15.3.2008 and the MCI is required to make inspection and submit its report by 15.6.2008. But, inspite of receipt of the letter by the MCI on 17.3.2008, as no action was taken by the MCI, and as already it was about two years passed, the petitioner-Institute, having no option, moved before this Court by filing the present Writ Petition in W.P.No.8404 of 2008. In the meantime, on 4.4.2008, the Tamil Nadu Dr.M.G.R.Medical University also granted consent of affiliation in favour of the petitioner-Institute.

6. From the impugned order dated 11.4.2008 passed in W.P.No.8404 of 2008, it would be evident that when the Writ Petition was taken up, the learned counsel appearing for the MCI, informed that if six weeks' time is given to the MCI, it will depute an inspection team, cause inspection of the petitioner-Institute and forward the inspection report to the second respondent-Central Government. In view of the consent given on behalf of the MCI and in view of the Regulations 1999, as the inspection was to be conducted by the MCI and it is supposed to forward its report to the Central Government and as the Central Government has already made a request on 14.3.2008, the learned single Judge disposed of the Writ Petition as per the aforesaid suggestion made on behalf of the MCI. Thus, it would be evident that all the parties agreed for such order, which is in accordance with the Regulations 1999.

7. Learned Senior Counsel appearing for the appellant-MCI challenged the impugned order of the learned single Judge, on the following grounds:

(a) The learned Counsel never agreed for any such direction.

(b) As an application under Section 10-A of the Indian Medical Council Act, 1956 should be complete in all respects, for opening a new Medical College, an incomplete application cannot be accepted, therefore, the High Court cannot direct to make inspection and submit a report on such incomplete inspection.

(c) Statutory time schedule having been framed under the Regulations 1999, the High Court has no jurisdiction to direct the MCI to make inspection and submit a report prior to such scheduled time.

8. On the other hand, according to the learned counsel appearing for the respondents-the State and Central Governments and the Institute, the Central Government, having forwarded the application of the writ petitioner-Institute, the MCI is supposed to make inspection and submit a report with its recommendations in one or other way.

9. We have heard the learned counsel appearing for the parties and noticed the rival contentions, as also the case laws referred to by one or other counsel.

10. The first submission made on behalf of the appellant-MCI that the counsel for the MCI never agreed for inspection, is to be rejected outright, such submission being based on no evidence. No pleading has been made in the affidavit filed in support of such submission that the lawyer never agreed before the learned single Judge for inspection. A vague statement has been made in the Stay Petition filed along with the Writ Appeal, which is also not based on record. The person who has sworn to the affidavit filed in support of the Stay Petition, has not pleaded that he was present in the Court and so, he has some knowledge, therefore, such vague statement cannot be relied upon.

11. So far as the application is concerned, it is true that no incomplete application can be entertained except the application which is complete with all details and enclosures. In this connection, one may refer to the relevant Scheme framed under provisions of the Regulations 1999, which was also relied on by the parties and extracted under:

"SCHEME FOR OBTAINING PERMISSION OF THE CENTRAL GOVERNMENT TO ESTABLISH A MEDICAL COLLEGE.

ALL APPLICATIONS UNDER THIS SCHEME SHALL BE SUBMITTED TO THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HEALTH & FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-110 001 FROM 1ST AUGUST TO 31ST AUGUST (BOTH DAYS INCLUSIVE) OF ANY YEAR.

1.ELIGIBILITY CRITERIA-

The following organisations shall be eligible to apply in Form-1 for permission to set up a medical college, namely:-

(1) A State Government/Union Territory;

(2) A University;

(3) An autonomous body promoted by Central and State Government by or under a Statute for the purpose of medical education;

(4) A society registered under the Societies Registration Act, 1860 (21 of 1860) or corresponding Acts in States; or

(5) A public religious or charitable trust registered under the Indian Trusts Act, 1882, 1882 (2 of 1882) or the Muslim Wakfs Act, 1954(29 of 1954).

2. QUALIFYING CRITERIA-

The eligible persons shall qualify to apply for permission to establish a medical college if the following conditions are fulfilled:-

(1) that medical education is one of the objectives of the applicant in case the applicant is an autonomous body, registered society or charitable trust.

(2) that a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person or is possessed by the applicant by way of 99 years lease for the construction of the college.

(3) 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 concerned State Government/Union Territory Administration.

(4) that Consent of affiliation in Form-3 for the proposed medical college has been obtained by the applicant from a University.

(5) that the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college.

(6) that the person has not admitted students to the proposed medical college.

(7) That the person provides two performance bank guarantees from a Scheduled Commercial Bank valid for a period of five years, in favour of the Medical Council of India, New Delhi, one for a sum of rupees one hundred lakhs (for 50 admissions), rupees one hundred and fifty lakhs (for 100 admissions) and rupees two hundred lakhs (for 150 annual admissions) for the establishment of the medical college and its infrastructural facilities and the second bank guarantee for a sum of rupees 350 lakhs (for 400 beds), rupees 550 lakhs (for 500 beds) and rupees 750 lakhs (for 750 beds) respectively for the establishment of the teaching hospital and its infrastructural facilities:

Provided that the above conditions shall not apply to the persons who are State Governments/Union Territories if they give an undertaking to provide funds in their plan budget regularly till the requisite facilities are fully provided as per the time bound programme.

(8) Opening of a medical college in hired or rented building shall not be permitted. The Medical College shall be set up only on the plot of land earmarked for that purpose as indicated.

3. FORM AND PROCEDURE:-

Subject to the fulfilment of the above eligibility and qualifying criteria, the application to establishment of medical college in Form-1 shall be submitted by the person in the following parts, namely:-

Part-I

Part-I of the application shall contain the following particulars about the person, namely:-

(1) Status of the applicant in terms of the eligibility criteria;

(2) Basic infrastructural facilities, managerial and financial capabilities of the applicant (Balance Sheets for the last three years in case the person is not a State Government or a Union Territory).

(3) Necessary certificates/documents as prescribed in qualifying criteria under paragraph 2.

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

6. EVALUATION BY MEDICAL COUNCIL OF INDIA:-

The Council will evaluate the application in the first instance in terms of the desirability and prima facie feasibility of setting up the medical college at the proposed location. Therefore, it shall assess the capability of the applicant to provide the necessary sources 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 physical inspection to verify the information supplied by the applicant.

7. REPORT OF THE MEDICAL COUNCIL OF INDIA-

(a) After examining the application and after conducting necessary physical inspections, the Medical Council shall send to the Central Government a factual report stating-

(1) that the applicant fulfils the eligibility and qualifying criteria.

(2) that the person has a feasible and time bound programme to set up the proposed medical college alongwith required infrastructural facilities including adequate hostels facilities separate for boys and girls, and as prescribed by the Council, commensurate with the proposed intake of students, so as to complete the medical college within a period of four years from the date of grant of permission;

(3) that the person has a feasible and time bound expansion programme to provide additional beds and infrastructural facilities, as prescribed by the Medical Council of India, by way of upgradation of the existing hospital or by way of establishment of new hospital or both and further that the existing hospital as adequate clinical material for starting 1st year course.

(4) that the person has the necessary managerial and financial capabilities to establish and maintain the proposed medical college and its ancillary facilities including a teaching hospital.

(5) that the applicant has a feasible and time bound programme for recruitment of faculty and staff as per prescribed norms of the Council and that the necessary posts stand created.

(6) that the applicant has appointed staff for the 1st year as per MCI norms.

(7) that the applicant has not admitted any students.

(8) Deficiencies, if any, in the infrastructure or faculty shall be pointed out indicating whether these are remediable or not.

(b) The recommendation of the Council whether Letter of Intent should be issued and if so, the number of seats per academic year should also be recommended. The Council shall recommend a time bound programme for the establishment of the medical college and expansion of the hospital facilities. This recommendation 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 recommendation will also define annual targets to be achieved by the person to commensurate with the intake of students during the following years.

(c) Where the Council recommends for not issuing of Letter of Intent, it shall furnish to the Central Government-

(i) its reason for not granting the Central Government permission; and

(ii) documents/facts on the basis of which the Council recommends the disapproval of the scheme.

(d) The recommendation of the Council shall be in Form-4.

RECONSIDERATION

Wherever the Council in its report has not recommended the issue of Letter of Intent to the person, it may upon being so required by the Central Government reconsider the application and take into account new or additional information as may be forwarded by the Central Government. The Council shall, thereafter, submit its report in the same manner as prescribed for the initial report.

GRANT OF PERMISSION-

(1) The Central Government on the recommendation of the Council may issue a Letter of Intent to set up a new medical college with such conditions or modifications in the original proposal as may be considered necessary. This letter of Intent will also include a clear cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipments, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above conditions and modifications are accepted and the performance bank guarantees for the required sums are furnished by the person and after consulting the Medical Council of India.

(2) The formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the intake of students during the following years.

(3) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.

(4) The council may obtain any other information from the proposed medical college as it deems fit and necessary." *

12. From the Scheme aforesaid, it would be evident that only those organisations which are eligible under Clause 1 of the Scheme framed under the Regulations, 1999 and qualify under Clause 2 of the Scheme, can apply to establish a Medical College only in Form-1 as prescribed under Clause 3 of the Scheme. Therefore, for the purpose of the Scheme, it is only when an application is made in Form-1, the same should be treated to be an application for the purpose of obtaining permission to establish a medical college. As Form-1 should contain certain particulars and certificates/documents as prescribed in the qualifying criteria under Clause 2 of the Scheme, certain prior applications are required to be made to the other authorities, such as State Government/Union Territory and University, for Essentiality Certificate in Form-2, consent of affiliation from a University in Form-3, etc.

13. Once application to establish a Medical College is submitted in Form-1 with an application fee as prescribed under Clause 4 of the Scheme, any such application referred by the Ministry of Health and Family Welfare of the Central Government to the Medical Council of India, is required to be registered under Clause 5 of the Scheme and on that, the Medical Council of India is duty bound under Clause 6 of the Scheme to evaluate the application in the first instance in terms of the desirability and prima-facie feasibility of setting up of such Medical College at the proposed location. Though it is open for the MCI to assess the capability of the applicant to provide necessary sources and infrastructure for the scheme, may also seek further information, clarification etc., if there is any deficiency in the application it may communicate opinion in this regard under Clause 7(8) of the Scheme, but it is not open for the MCI to argue that in spite of reference of such application by the Central Government to it, they will not act upon the same before the specific period in spite of the order passed by a Court of law.

14. So far as the time schedule as shown in the schedule appended to the Regulations, 1999, is concerned, it is mandatory for the purpose of application for a particular session or for taking action for grant of permission to establish for such particular session. # If it is not cleared before that particular session, such application cannot be entertained for granting permission from retrospective date, but in case of delay in disposal of such application, the authorities cannot reject the application for their own laches, though it can be entertained only for subsequent session. For example, for obtaining "Essentiality Certificate" from the State Government in Form-2 or for obtaining "Consent of Affiliation" from a University in Form-3, if delay has taken place, the Central Government cannot refuse to entertain the application submitted under Form-1, if otherwise complete, though it may not entertain such application for past session, but it is bound to accept the same for future session. Similarly, the MCI cannot refuse to submit its report on the ground that there was a delay on the part of one or other authority, nor can linger the matter on the ground that there is enough time to entertain.

15. So far as the present case is concerned, the Central Government was to forward its report to the MCI by 15th March of the year, which it has done and in such a case, it was duty bound on the part of the MCI to forward its report and recommendation by 15th June of the year. Learned Standing Counsel appearing on behalf of the Central Government, while supporting the case of the writ petitioner-Institute, submitted that the Central Government has forwarded the application within the prescribed period, and therefore, it was for the MCI to submit its report and recommendation by 15th June, 2008. In fact, learned Standing Counsel appearing for the Central Government agreed that the Court rightly passed the order on the basis of the submission as was made by the parties.

16. Learned Senior Counsel appearing for the appellant-MCI referred to one or other judgment to suggest that the time-frame given in the Regulations, 1999, is mandatory. As there is no dispute with regard to such submission as was made on behalf of the appellant-MCI, it is not necessary to refer those judgments in the present case.

17. So far as the third submission relating to statutory time is concerned, the argument advanced cannot be accepted, as the learned single Judge has not given any direction to grant permission beyond the prescribed time, but having seen that there is already delay, has granted time and directed the MCI to perform its statutory duty under Clauses 6 and 7 of the Scheme framed under the Regulations, 1999, within the prescribed period of 15th June # . In this background, the question of interference with the impugned order does not arise. Further, an agreed order having been passed on the basis of the suggestion made by the counsel for the MCI, it is not open for the MCI to challenge the same to linger the matter.

18. Learned Senior Counsel appearing for the writ petitioner-Institute (first respondent in the Writ Appeal) submitted that the present appeal has been preferred by the appellant-MCI with a motive to delay the matter, so that it may not forward its recommendation by 15th June, 2008 and because of such delay, the writ petitioner-Institute may not get permission to establish a Medical College for the session 2008-2009. It was informed that the session will start sometime in September 2008 and thereby, still there is time to take up the matter, if every action is taken immediately in accordance with the Regulations, 1999, without any attitude of bias towards the writ petitioner-Institute.

19. In view of the discussion as made above and the findings as recorded by us, while we are not inclined to interfere with the impugned order of the learned single Judge, we direct the appellant-MCI to submit its report immediately and forward it to the Central Government immediately, not later than 5th July, 2008. The Central Government having its time upto 15th July, 2008, shall take steps in accordance with law, in view of the recommendation as would be made by the MCI and should forward its decision to the writ petitioner-Institute by the said date, i.e. 15th July, 2008, as prescribed under the statute.

20. As it would be evident that the impugned order has been passed by the learned single Judge on the basis of the suggestion as was made by the counsel for the MCI, but in spite of the same, the MCI, for the reasons best known to them, preferred the Writ Appeal without any basis, which caused delay in making its recommendation which was to be made by 15th June, 2008, we are of the view that the costs of Rs.25, 000/- (Rupees twenty five thousand only) should be imposed on the appellant-MCI to be paid in favour of the Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai-600 104, within a period of six weeks from today.

21. While we reject the claim of the appellant-MCI on merits, we dispose of the Writ Appeal with the observations and directions aforesaid and costs as imposed above. The Miscellaneous Petitions are closed.

22. Let a copy of this order be handed over to the Member Secretary, The Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai-600 104.