331 0 CivilWrit Petition No 16235of 2011 1 and CM No 14288of 2011 Inthe HIGH COURT OF PUJAB AND HARYANA AT CHANDIGARH CivilWrit Petition No16235 of 2011 and CM No 14288of 2011 Dateof Decision 2011 DashmeshEducational Charitable Trust etitioner Versus m r Union oflndia and others espondents CORAM14ONBLE MR JUSTICE RAJIVE BHALLA I 0 Present Mr Ashok AggarwalSenior Advocate I withMr JSidhu Advocate for the petitioner Z MrSidhu Advocate for nleUOl 1 M DeepakSibal Advocate with for No Ms ShrutiJain Assistant Advocate General Haryanafor no Z Qo RAJIVE BHALLA J W3 Z The prays for issuance of writ for setting Qm aside decision dated 30201 1 whereby no2 has refused to grantpermissionfor increase of MBBS seats from 100 to 150 and for issuance of a writ in the nature of mandamusdirecting the respondentsto consider and granta Ietterof permissionunder Section 10A of the Indian Medical Council Act 1956 lereinafter referredto as the Actl for increase of seats from 100 to 150 for the academic year 201112 The petitioner an educational Trust appliedon 31 2007 Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 332 0 Civil Writ Petition No16235 of 2011 2 and Cv No14288 of 2011 underSection 10A of the Act to the Ministryof Health and Family VVelfareGovernment of India for to establish a new Medical Collegewith an annual intakecapacityof 150 seats in the MBBS course The petitioners was considered and a Ietterof intent followed bya Ietterof was issued allowing admissionof 100 studentsin the MBBS course The petitionerthereafter filed dated 62010 prayingthat as it fulfills all existingcriteria the appiicantbe allowed to admit 150 students In the meanwhile an ordinance namelythe I IndianMedical CounciI Act 2010 was by 0 the President of India followed by the AmendingAct whereby I powersof the Indian Medical Council under the Act were to be Z henceforth exercised by a Board of Governorshe l submitted an applicationdated 151 1201 0 for increase of the W number of seats from 100 to 150 for academic year 201112 Z before no2 The petitioner received an email dated m 291 2011 informing the that inspectionfor renewal of 7 for 100 MBBS seats for the 2 batch and as regards Z Ietterof for increase in number of seats from 100 to 150 r1 seats would be carried out on 31 1201 l and l 2011 The inspectionwas carried out and repottswere forwarded to the The petitioner was directed to submit its in relation to deficiencies pointedout by the inspectionteam The petitionersubmitted its response vide Ietter dated 52Ol l The petitionerthereafter received a Ietter dated 255201 l that an inspection of the collegewould be carried out for Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 333 0 CivilWrit Petition No16235 of 2011 3 and C No 14288of 2011 verificationlassessmentfor grantof renewal of and for increase In numberof MBBS seats from 100 to 150 under section 1OI of the Act An inspection team constituted by no2 inspectedthe college The was informed vide Ietter dated 30201 1 that while renewal of has been grantedfor 100 seats the for increase of seats from 100 to 150 has been declined as the Board of 1 Governers has taken a policydecision not to allow enhancement of seats if a collegeis not recognised Counsel for the submits that the C5 have not pointedout any deficiencyin the infrastructure or the I facultyThe rejectionof the for increase of seats by Z referring to a policydecision is arbitrary and contraryto the statute 2 It is further arguedthat as no has carried out 9 inspectionto assess its capabilityfor increase of seats the Z are from that the QO cannot be allowed to increase itsseats mm the medical collegeis not recognised It is funher submittedthat Z Section 1 A of the Act which provides increase of seats does not enact any that of a medical collegeis a pree condition to enhancement of seats The Act in fact does not contain any provisionthat providesfor of a medical college The Act of a medical and not of a collegeThe ground set out by the respondentsin the Ietter rejecting the prayer of for increase of seats is therefore untenable The attempt Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 334 0 CivilWrit Petition No 16235of 2011 4 and CMIlo14288 of 2011 bythe to importthe expression as used In Section 11 21of the Act into the provisions of section 10A of the Act subvertsthe purpose of section 10A of the Act and imports into Section10A a prohibitionthat has not been enacted byParliament The expression appears in Section 1121 of the Act and relates to of a If the placedbythe upon the word is accepted m it WOUIdIIn essence prohibita medical collegefrom seeking enhancement of seats till such time as its Ist batch passes out aner I five years It is further submittedthat this has placed t an embargo on the enhancement of seats for a periodof five years It is further submitted that no2 cannot importfactors Z other than those referredto in section 104 of the Act It is further submittedthat the prayer with respectto enhancement of seats has 9 to be considered in accordance with the provisions of the Act It IS Z further arguedthat the difference between section 104 and sub m section 11 21of the Act is apparent as section 10A of the Act w relatesto for settingup of a medical college Z renewals and enhancement of seats whereas sub section 11 21of the Act deals with of medical It IS further submittedthat as the fulfiils the criteria for enhancement of the seats as set out in the Act the impugned order should be set aside and the respondentsshould be directed to reconsider the matter afresh and issue a Ietterof permissionfor 50 additionalseats Counsel for the Medicai Councii submits that the Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 335 d CivilWrit Petition No16235 of 2011 5 and C No 14288of2011 for increase of admission capacityfrom 100 to 150 has been by the Board of Governors as the collegedoes not meetthe qualifying criteria set out in Regulation31 1for increase in nutnber of seats A perusalof regulation3 ll clearly establishes that of a medical collegetakes placeafter five yearsThe petitioner has completed the first year out of Ove yearsMBBS course and is therefore not recognised as a medical i C collegeIt is furthersubmittedthat Section 104 of the Act mandates 0 that no person shall establish a medical coilegeopen a new and a 0 higher course of studyor trainingor increase seats without the I C5 of the Board of Governors and the Central Government I 2411of the Establishmentof Medical CollegeRegulations Z 5 2000 defines a medical collegeto mean an institution in which a 2 0 personmay undergoa course of studyor trainingwhich will qualify 4 I him for award of any recognizedmedical The C0 Z to establish a medical collegedoes not infer 1 m of the degree The word contained in Section 1121of 7 the Act necessarilyincludes of a collegeand not merely Z of a degreet is futther arguedthat a new collegeIS Il to admit students for a periodof one year or more at a time A new medical collegebecomes eiigiblefor of its degreein terms of section 11 of the Act aRer its first batch passes out after five year Till such time as the degreeis not recognised a collegecannot be allowed to increase its seats over and above the seats originallygranted It IS further submitted that grant of to establish a collegeand of a degreeand as Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 336 0 CivilINritPetition No16235 of 2011 6 and C No14288 of 2011 a the collegeare prescribedbydifferentprovisions of the Act Section 104 of the Act read with the framed under Section 33 of the Act clearlyestablishes the correctness of the respondentsstand The is at the stage of admission of the second batch of studentsle degreeoffered by the collegewould be considered for after the first batch its course The petitionertherefore cannot as a matter 1 of right claim that number of seats should be enhanced from 100to 150 It is further submitted that of an course can onlytake placeafter of 5th year and as a I C5 any enhancement of seats must await of the medical collegeasreferred to in section 11 Z ofthe Act it is further submittedthat as Regulation3111 of Pan 11 L of The Openingof a New or HigherCourse of Studyor Trainingof X the 2000 provides that the coliegeor institutionmust Z be recognisedbythe Medical Council of India for running a MBBS 00 course as a precondition to enhancement of seats The decision 7 by no2 to rejectall wherein the medical Z is not so far recognisedhas been taken keeping inview the interest of medical education and to prevent of subestandardcollegesofferingseats without requisiteinfrastructure and without recognition of the medical have heard counsel for the partiesperusedthe relevant statutory provisions and the impugned order Aner argumentswere heard and judgment was reserved counsel for the petitionerfiled Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 337 91 t3 Civil VVritPetition No16235 of 2011 7 and C No14288 of2011 Civil Misc ApplicationNo14288 of 2011 appendingtherewith of an Honble SingleBench and an Honble Division Bench of the Delhi HighCourt decidingthe present controversyVotice of the applicationwas issued to counsel for the Counsel for the petitionersubmits that the question whether a Medical Collegecan be denied enhancement of seats on 0 the groundthat it is not recognised as it has not completed 05 years has been considered and decided by the Delhi HighCourt on 28201 1 in Teerthanker Mahaveer lnstituteof Manaqementversus I t5 Union of India WCl No 5763120118 CM No I Medical Council of India versus Teerthanker Mahaveer Instt of Z Manaqementand another LPA No 819120111 by holdingthat a 2 lr medical collegecan be allowed enhancement of seats even if it has not completed five years The judgment was challenged in a Letter 1 Z Patent AppealNo1912011Iide order dated 1312011 the LPA Bench has affirmed the judgmentand held that the Act does not OO wm prohibitthe enhancement of seats in a collegewhiCh has not Z completedfive years It is prayedthat as the in the presentpetition IS squarelycovered by the above referred judgmentsthe writ petitionmay be allowed and disposedof Counsel for the submits that thoughthe questionof Iawthat arises for in the presentpetitionhas been decided in favour of medical collegesbut the petitionersprayer for issuance of a direction to issue a Ietterof permissionand allow Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 338 3 ri CivilWrit Petition No16235 of 2011 8 and C No14288 of 2011 the petitioner to make admissions cannot be allowed as the entire matter is pending beforethe Honble Supreme Coun and the cut off date of 30 September2011 set down by the Honble 1 Supreme Court has since expired have once again heard counsel for the partiesand perusedthe judgments referredto hereinabove The questionthat anses for is whetherthe 1 C Boardof Governors is rightin rejectingthe of Trust for increase of seats on the groundthat a medical collegehas not completed 05 years and is therefore not recognised I C9 A similar questioncameup for consideration before the I Delhi HighCoutt in Teerthanker Mahaveer Instituteof Z versus Union of India 1supral Vide judgmentdated 28201 1 a 2 IearnedSingleBench of the Delhi HighCourt answered this question r byholdingthat a medical collegecannot be denied enhancement of 0 Z seats on the groundthat it has not completed five years or is not m recognised smo The Medical Council of Indiafiled a Letters Patent Appeal Z titled as Medical Council of Indiaversus Teerthanker Mahaveer Instt of and anotheIPA No19120111The LPA Bench dismissed the appealand affirmed the judgmentof the Iearned SingleBench A relevant extract from the judgmentof the Letters Patent Bench reads as follows 128e The mattercan be Iookedat a IittlediHeret The Regulationin questiondoes not say that the medical must be recognizedby the Medical Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 339 0 CivilWrit Petition No16235 of 2011 9 and C No 14288 of 2011 Councilof India for awardinga Bachelor of Medicine or a Bachelor of SurgeryCourse It uses the expression runningBachelor of Medicine and Bachelor of Surgery Course 29 it IS plain evident that once a IS grantedunder Section 10A it authorizes the granteethe permissionto run a course tm This IS further by the Iatter in Regulation 31 1after the word however The 0 clause in question can be splitinto two parts I C5 al The medical must be recognized I by the Medical Councii of India for runningBachelor of Z Medicineand Bachelor of Graduate Course however 5e I bl The medical which is not yet Z bythe Medical Council of Indiafor the award of m MBBS degreemay applyfor increase of intake in Post 7 GradudateCourses in and subjects Z of Physiology Ll Pathology Forensic Medicine S Medicine at the time of 4 renewal i alongwith the admissionof 5 Batch for the MBBS Course 300 The first partof the Regulation is not circumscribed byany Iirnitationsas is the second partand relevantwould it be to note that it is the second panwhich circumscribes the time within which it would be to seek increase Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 340 1 5 Civil Writ Petition No 16235of 2011 10 and CVl No 14288of 2011 in the admission capacitybut only penainingto postm graduate courses The first pait of the regulation has no such Iimitation 310 ThUS we concur with the reasoning of the iearned SingleJudgethat the does not that a collegemust be recognized to award degreese It does not a under Section 11 of the 0 Indian Medical Council Act 1956 and that it is permissible for a collegeto seek increase Irl the admission capacity 0 even at the stageit has the under I C0 Section 10A It is settled Iaw that if two one I which expands a rightto applyand the other which restricts Z the rightto applyare possibleIaw Ieans in favour of the former and not the Iatter 0 I 32 ThUS we answer the first questionagainstthe C Z appellantand in favour of the Il QO A considered appraisal of the facts of the present m case the statutoryprovisions of the Act the relevant and Z the judgmentsreferred to hereinabove clearlyestablish that the controversyin the presentcase has been and answered in these judgmentsbyholdingthat the Board of Governors has no statutory power to rejectan for enhancement of the seats on the groundthat a medical collegehas not completed 05 years or IS not find no reason whether in fact or in Iawto diHer with the ennuciation of Iaw in the above judgments and therefore have no hesitation in holdingthat the respondentshave erred in Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document 341 11 CivilINrit Petition N16235 of 2011 and CNo14288 of 2011 11 the petitioners for enhancement Of SeatS The that remains is whether a direction shall issue to the to grant a Ietter of for increase of seats and the shouid be allowed to admit studentsfor the current academic session The statutoryrightto issue a Ietter of rests with the Board of Governors in 1 accordance with thepower conferred bythe statute The writ petition IS therefore ailowed the order dated 30201 1 is set aside no2 is direcled to pass a fresh order in terms of the I C5 enunciation of Iaw set out in Medical Council of India versus I TeerthankerMahaveer Instt of Manaqementand another lLPA Z N0819120111decided on 28201 1 The questionwhether a Ietter 2 C of permissioncan be issued for the current or for the next session would dependupon any order that may be passedby the Honble C3 Z SupremeCOUltl as it is stated by counsel for the partiesthat the validity of the Delhi High Court judgmentis pendingconsideration 0 beforethe Honble SupremeCourt The petitioner may therefore if m Z So advised also approachthe Honble SupremeCoun as directed tl by the Honble Delhi High Coutt vide order dated 209201 1 passedin LPA No19 of 2001 The writ petitionis allowed in the aforementioned terms but with no order as to costs CNo14288 of 2011 is disposedof accordingiy Q 9lA4 9 140v November 2011 RAJIVE BHALLAI VK JUDGE 0v 1A 0 Rashmi 2014.07.28 10: 52 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:27 I attest to the accuracy and integrity of this document