CWP No.7163 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7163 of 2011 Date of decision:06.09.2011 Maharishi Markandeshwar Institute of Medical Science and Research Mullana and another ..... Petitioners Versus Union of India, Ministry of Health and Family Welfare and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.D.S.Patwalia, Advocate for the petitioners. Mr.Deepak Sibal, Advocate for respondents No.1 and 2. Ms.Shruti Jain, AAG, Haryana for respondent No.3. ***** RAJIVE BHALLA, J. (ORAL) This order shall dispose of CWP Nos.7163 and 7164 of 2011 as they involve adjudication of common questions of facts and law. For the sake of convenience, facts are being taken from CWP No.7163 of 2011. The petitioner No.1 is a deemed University and amongst others, runs a Medical College that offers postgraduate courses with seats in M.D.Obst. and Gynaecology, General Surgery, M.D.(D.V.L), M.D.Ophthomology and Orthopedics. The petitioners applied to the Medical Council of India, established under the Indian Medical Council Act, 1956 (hereinafter referred to as the 'Act') for increase of seats in postgraduate courses. CWP No.7163 of 2011 -2- The council despatched a team to inspect the facilities offered by the petitioners. In the meanwhile, the Act came to be amended by incorporating Section 3B. Section 3B provides that powers of the Medical Council of India shall vest in a Board of Governors and the Board of Governors shall exercise these powers, including the power to grant an opportunity of hearing, if it proposes to reject an application but without prior permission of the Central Government. The Board of Governors partly accepted the petitioners' application for additional seats in some courses but rejected the application in its entirety qua other courses. Aggrieved by this rejection, the petitioners have filed these petitions praying for issuance of a writ in the nature of certiorari for quashing the orders of rejection and for issuance of a writ of mandamus to direct the Board of Governors to afford an opportunity to the petitioners to remove the defects and re-consider the matter after affording an opportunity of hearing to the petitioners as provided by Section 10A read with section 3B(b) of the Act. Counsel for the petitioners submits that the order rejecting the request for additional seats is illegal and void as it was passed without affording an opportunity to the petitioners to remove defects and or granting an opportunity of hearing. It is argued that before introduction of Section 3B in the Act, Section 10A of the Act, required the Medical Council, to communicate defects, grant an opportunity to CWP No.7163 of 2011 -3- remove defects and only thereafter refer the matter to the Central Government, for rejection or acceptance. The Central Government was thereupon required to grant an opportunity of hearing before taking a decision. By virtue of Section 3B, the Board of Governors has replaced the Medical Council and the requirement of seeking prior approval of the Central Government has been deleted. However, Section 3B of the Act, has not modified the obligation of the Medical Council/the Board of Governors to grant an opportunity to remove defects and in fact requires the Board of Governors to afford an opportunity of hearing, before rejecting an application. The role of the Central Government and the Medical Council has in essence been amalgamated into one body viz. the Board of Governors. It is submitted that as the Board of Governors has violated the procedure prescribed by Section 10A read with Section 3B of the Act, the writ petition should be allowed, the impugned orders may be set aside and the respondents should be directed to consider the matter afresh and in accordance with the procedure prescribed by Section 10A read with Section 3B of the Act. Counsel for the respondents submits that defects pointed out by the Board of Governors are pleaded in the written statement. In case the petitioners were serious, they could have removed these defects and filed a fresh application. It is further submitted that with the amendment of the Act, the Medical Council has ceased to exist and has been replaced by the Board of Governors. With the introduction of CWP No.7163 of 2011 -4- Section 3B of the Act, the provision of seeking prior approval from the Central Government no longer exists. As a consequence, the Board of Governors, has rightly rejected the petitioners' application for additional seats in the exercise of its statutory powers under Section 10A read with Section 3B of the Act. I have heard counsel for the parties, perused the impugned orders and Sections 10A and 3B of the Act. It is true that by virtue of Section 3B of the Act, the Board of Governors has replaced the Medical Council of India, and henceforth has the right to exercise powers of the Medical Council as set out in Section 10A of the Act and grant permission to establish a new medical college, a new or higher course of study, increase in capacity in any course of study or training, without prior permission of the Central Government, as set out in the newly added Section 3B. However, the obligation of the Medical Council to call upon a college to remove defects as conferred by Section 10A of the Act, subsists and must, therefore, be discharged by the Board of Governors. Section 3B of the Act reads as follows: - “3B. During the period when the Council stands superseded: - (a) the provisions of this Act shall be construed as if for the word “Council”, the words “Board of Governors” were substituted; (b) the Board of Governors shall- (i)exercise the powers and discharge the function of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall CWP No.7163 of 2011 -5- be construed as references to the Board of Governors; (ii)grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under Section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and (iii)dispose of the matters pending with the Central Government under Section 10A upon receipt of the same from it.” The Board of Governors is, in essence, a substitute for the Medical Council and has to, therefore, exercise all the powers of the Medical Council, including the power to call upon an institution to remove defects. The Board of Governors is to thereafter proceed to exercise powers of the Central Government namely to grant “a reasonable opportunity of being heard”, if it proposes to reject an application. A reasonable opportunity of being heard was originally reserved for the Central Government, under Section 10A of the Act but by virtue of Section 3B(b)(ii) it has to be exercised by the Board of Governors. It is, therefore, beyond debate that the Board of Governors shall exercise the power of the Medical Council to call upon an institution to remove defects and if the institution claims that it has removed defects, afford an opportunity of hearing, to the institution, if CWP No.7163 of 2011 -6- it proposes to reject the application for setting up a new medical college, for obtaining a new or higher course of study, or for increase in capacity in any course of study or training and decide the matter without making further reference to the Central Government. As admittedly, the petitioners have not been called upon to remove defects in terms of Section 10A of the Act, and no opportunity of hearing has been afforded to the petitioners, in terms of Section 3B (b)(ii) of the Act, before rejecting their application, the impugned orders are violative of the mandatory procedure laid down by Section 10A read with Section 3B of the Act. The writ petitions are accordingly allowed, the impugned orders are set aside but with the following directions: - (a) As the petitioners are aware of the defects pointed out by the respondents, they are granted a week's time, from the receipt of a copy of this order to approach the Board of Governors, in support of their plea that they have removed defects. (b) Upon the petitioners approaching the respondent- Board of Governors, by way of a written communication, in terms referred to above, the Board of Governors shall consider the matter within a week. (c) If the Board of Governors proposes to reject the application for increase of seats, it shall grant an opportunity of hearing to the petitioners within a week CWP No.7163 of 2011 -7- and take a final decision within a week thereafter. The interim order dated 25.05.2011 shall continue to operate for a period of three weeks, from the receipt of a copy of this order and in case the petitioners' application for additional seats is rejected, the interim order shall come to an end without further reference to this court thereby cancelling the admissions made pursuant to the interim order. A copy of this order be handed over to counsel for the parties under signatures of the Court Secretary of this Bench. 06.09.2011 [RAJIVE BHALLA] shamsher JUDGE