IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 5948 of 2010 (O&M) Date of Decision: 24.5.2010. Gold Field Siksha Sanstha --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Arjun Partap Atma Ram, Advocate for the petitioner. Mr. R.K.S. Brar, Addl. A.G., Haryana for respondent no.1. Mr. Gurminder Singh, Advocate for respondent no.2. Mr. Ramesh Hooda, Advocate for respondent no.3. Mr. Karamjit Verma, Advocate for respondent no.4. *** PERMOD KOHLI.J (ORAL) The petitioner is a society registered under the Societies' Registration Act. It is running various institutions for imparting education in different fields. With a view to establish a medical college, the petitioner applied to the Govt. of India vide its application dated 28.8.2009 for grant of permission. The petitioner also approached the State Govt. vide application dated 9.6.2009 for grant of essentiality certificate and and a similar application dated 17.8.2009 was made to the respondent no.3- university for grant of consent for affiliation. The application of the petitioner was, however, rejected by the Govt. of India vide its letter dated 20.10.2009 (Annexure P-11) on account of the following deficiencies:- “ i) Essentiality Certificate from the concerned State Govt. ii) Consent of Affiliation from the affiliating university. iii) Proof of 300 bedded functional hospital.” CWP. No. 5948 of 2010 (O&M) -2- In the meantime, the State Govt. vide its communication dated 30.4.2010 has granted the Essentiality Certificate and similarly the respondent no.3-university vide its letter dated 14.5.2010 (Annexure P-20) also gave consent for affiliation. It is relevant to mention that the State Govt. while granting Essentiality Certificate has mentioned about the infrastructure facilities with the hospital including the 300 bedded hospital established in July, 2009. The principal grievance of the petitioner is that the Govt. of India has committed a glaring illegality and error in rejecting the application of the petitioner vide the impugned order dated 22.10.2009 (Annexure P-11) without referring the same to the Medical Council of India, the competent authority to ascertain the deficiencies and to seek rectification thereof. With a view to support the contention, reference is made to Section 10-A of the Indian Medical Council Act, 1956 and regulations framed thereunder. The relevant extracts from the said section and regulations are reproduced hereunder:- “ Section 10-A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC. (1) Notwithstanding anything contained in this Act or any other law for the time being in force:- (a) no person shall establish a medical college or (b) no medical college shall; (i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized medical qualification; or CWP. No. 5948 of 2010 (O&M) -3- (ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training) except with the previous permission of the Central Govt. obtained in accordance with the provisions of this section. Explanation1- For the purposes of this section, “person” includes any university or a trust but does not include the Central Govt.. Explanation 2- For the purposes of this section “admission capacity” in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. (2) (a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1) submit to the Central Govt. a scheme in accordance with the provisions of clause (b) and the Central Govt. shall refer the scheme to the Council for its recommendations. (b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. (3) On receipt of a scheme by the Council under sub-section (2) the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may- (a) If the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the CWP. No. 5948 of 2010 (O&M) -4- Council. (b) consider the scheme, having regard to the factors referred to in sub-section (7) and submit the scheme together with its recommendations thereon to the Central Govt. (4) The Central Govt. may after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme, and any such approval shall be a permission under sub-section (1): Provided that no scheme shall be disapproved by the Central Govt. except after giving the person or college concerned a reasonable opportunity of being heard; Provided further that nothing in this sub section shall prevent any person or medical college whose scheme has not been approved by the Central Govt. to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section (2).” xxxx xxxx xxxx xxxx 1. ELIGIBILITY CRITERIA The following organizations shall be eligible to apply in Form- 1 for permission to set up a medical college namely:- 1. A State Govt./Union Territory; 2. A university. 3. An autonomous body promoted by Central and State Govt. by or under a statute for the purpose of medical CWP. No. 5948 of 2010 (O&M) -5- 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 Trust Act, 1882 (2 of 1882) or the 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 personor 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 Govt./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 Govt./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 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 laksh CWP. No. 5948 of 2010 (O&M) -6- (for 400 beds), rupees 550 lakhs (for 550 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 Govts./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. 5. REGISTRATION:- Applications referred by the Ministry of Health & Family Welfare to the Council will be registered in the Council for evaluation and recommendations. Registration of the application will only signify the acceptance of the application for evaluation. Incomplete applications will not be registered and will be returned to the Ministry of Health & Family Welfare along with enclosures and processing fee stating the deficiencies in such applications. The Council shall register such incomplete applications if so directed by the Central Govt. for evaluation but shall submit only a factual report in respect of them and shall not make any recommendations. 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 inspection, the Medical Council shall send to the Central Govt. a factual report stating- CWP. No. 5948 of 2010 (O&M) -7- 1. that the applicant fulfills the eligibility and qualifying criteria. 2. that the person has a feasible and time bound programme to set up the proposed medical college along with 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 extablishment 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 appicnat has appointed staff for the 1st year as per M.C.I norms. 7. that the applicant has not admitted any students. 8. Deficiencies, if any, in the infrastructure of faculty shall be pointed out indicating whether these are remediable or not. 8. GRANT OF PERMISSION- 1. The Central Govt. 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 CWP. No. 5948 of 2010 (O&M) -8- sums are furnished by the person and after consulting the Medical Council of India. 2. The formal permission may incude 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 as may be fixed by the Council to be achieved by the person tocommensurate 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 Govt. 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.” From the perusal of the aforesaid provisions it appears that under sub Section 2(a) the Central Govt. on receipt of the scheme is to refer the same to the Council for its recommendations. Sub Section 3 empowers the Council to obtain further particulars considered necessary from the applicant or the medical college concerned and if, it is found that the scheme is defective and does not contain necessary particulars, provide reasonable opportunity to the person or the college concerned for making representation and to enable it to rectify the defects specified by the Council and if, the scheme is otherwise complete, submit the same to the Central Govt. along with its recommendations. Under Sub Section 4, the Central Govt. on consideration of the scheme and the recommendations of the CWP. No. 5948 of 2010 (O&M) -9- Council, may also obtain more particulars from the concerned and may disapprove or approve the scheme and if, the scheme is approved, it shall be a permission under this section. In case of disapproval, the applicant has to be provided an opportunity of hearing. Mr. Gurminder Singh, learned counsel appearing on behalf of the M.C.I has vehemently opposed the contention of the petitioner. Referring to Section 2 (b) and the regulations, it is argued that the Central Govt. was well within its right to reject the application without even referring the same to the M.C.I for evaluation. It is contended that sub section 2(b) requires the scheme to be submitted in such form and with such particulars and fee etc. as are prescribed under the regulations and if, the Central Govt. finds that it is not in the prescribed form or incomplete, it can reject the same without forwarding it to M.C.I for evaluation. He has further referred to the regulations framed by the Council under section 33 of the M.C.I Act. Regulation 1 prescribes the eligibility criteria, whereas regulation 2 prescribes the qualifying criteria. Under regulation 1 the organizations/persons who are eligible have been specified. A society is one of the eligible organizations specified under this regulation and thus the eligibility of the petitioner is not in dispute. Regulation 2 provides that a person is qualified to apply, if, the conditions stipulated therein are fulfilled. Reference is made to conditions 3, 4 and 5. These conditions relate to the Essentiality Certificate, consent of affiliation and not less than 300 bedded hospital with necessary infrastructural facilities owned and managed by the college. According to Mr. Gurminder Singh since these three essential conditions had not been complied with by the petitioner, the Govt. of India rightly rejected its application/scheme and re-directed to the petitioner for CWP. No. 5948 of 2010 (O&M) -10- removal of the deficiencies. The submission of the respondent's counsel is that the petitioner was not qualified at the time of submission of the scheme within the time prescribed under the schedule fixed by the M.C.I, hence, the petitioner's application at this stage cannot be re-examined for the academic session 2010-2011, though, the petitioner can again apply for the next academic session. He has referred to the notification dated 26.8.2009, whereunder time schedule right from the date of making application up to the grant of permission is prescribed. The schedule is reproduced hereunder:- Stage of processing Last date 1. Receipt of applications by the Central Govt. From 1st August to 31st August (both days inclusive) of any year. 2. Receipt of applications by the MCI from Central Govt. 30th September 3. Recommendations of Medical Council of India to Central Govt. for issue of Letter of Intent. 15th December 4. Issue of Letter of Intent by the Central Govt. 15th January 5. Receipt of reply from the applicant by the Central Govt. requesting for Letter of permission. 15th February 6. Receipt of Letter from Central Govt. by the Medical Council of India for consideration for issue of Letter of Permission. 1st March 7. Recommendation of Medical Council of India to Central Govt. for issue of Letter of Permission. 15th May 8. Issue of Letter of Permission by the Central Govt. 15th June In the aforesaid schedule the application was required to be submitted from 1st of August to 31st of August. Central Govt. is to forward the same to the M.C.I up to 31st of September. M.C.I's recommendations are to be submitted to the Central Govt. for issue of letter of intent up to 15th of December. It is further submitted that the time schedule is mandatory in CWP. No. 5948 of 2010 (O&M) -11- nature and cannot be violated in any manner. To support his contention, learned counsel for the M.C.I has relied upon the case of Govt. of A.P Vs. Medwin Educational Society reported as 2004(1) SCC 86, wherein following observations have been made:- “ 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 Govt. 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.” In view of the above observations, it is pleaded that the Essentiality Certificate is an essential requirement and this condition has to be complied with before the application of the petitioner is to be considered. It is further submitted that without this requirement the applicant is not qualified to be considered for even evaluation by the M.C.I. Mr. Singh has further referred to the case of Union of India and others Vs. All India Children Care & Educational Development Society, Azamgarh and another reported as 2002(3) SCC 649. Even in this case, it has been held that even in case of deemed permission the compliance of the statutory provisions is mandatory. The relevant observations are as CWP. No. 5948 of 2010 (O&M) -12- follows:- “ 5. From a perusal of the scheme contained in Section 10-A of the Act, it is evident that an application submitted in full compliance with the statutory and mandatory preconditions laid down under Section 10-A of the Act alone would be entitled to the benefit of deeming approval. In the present case, the respondent society had to fulfill the requirement of owning and managing a 300 bed hospital the details whereof should have been incorporated in the application as made under Section 10-A(2) of the Act to the Central Govt. The respondent has not till date fulfilled all the requirements which it is under an obligation to fulfill on the date of making of the application. On the date of submission of the application, the respondent society did not own and possess a hospital of 300 beds apart from not having sufficient staff and enough clinical facilities.” There is no dispute about the proposition that the applicant must fulfill all the requirements of Section 10-A and the regulations framed by the M.C.I. The ratio of the above judgements also suggests that the essential requirements of the regulations and the provisions of Section 10 must be fulfilled before a permission/approval is granted by the Central Govt. for establishing a medical college or to commence a new course. The dispute in this case is who is the competent authority to evaluate the deficiencies and provide an opportunity to the applicant/medical college to rectify the same. Section 10-A and the regulations framed thereunder contain the complete answer to the issue. As noticed herein above the Central Govt. on receipt of the application under sub section 3 of Section 10-A has to forward it to the M.C.I and the Council in turn has to decide about the deficiencies and provide an opportunity to the concerned medical CWP. No. 5948 of 2010 (O&M) -13- college to rectify the same. Regulations framed by the Council provide the detailed procedure for dealing with the application/scheme. Regulation 5 speaks of registration of the application with the Council for evaluation and recommendations. Regulation 6 clearly provides for evaluation by the Council on all aspects i.e desirability, feasibility, location, capability and necessary resources to provide the infrastructure. It further empowers the Council to seek further information, clarification or additional documents from the applicant necessary to carry out physical inspection. Regulation 7 lays down the factors, which are to be considered by the Council while sending its report to the Central Govt. The argument of Mr. Gurminder Singh that it is the Central Govt. which has to examine the eligibility and qualification of the applicant before the application is forwarded to the Council stands belied by these regulations. Para 1 of the regulation 7 clearly provides that the Council has to determine whether the applicant is eligible and fulfills the qualifying criteria. Similarly para 2 deals with the infrastructural facilities, para 3 deals with the feasibility and expansion programmes. Para 5 deals with the faculty etc. It is the Council which has to assess and evaluate the scheme in all respects and not the Central Govt. Clause (b) of regulation 7 further provides that the Council has to make a recommendation about the number of seats for academic year based upon its assessment of infrastructure and other facilities. Regulation 8 deals with the grant of permission. From the regulation 8 it is evident that Central Govt. on receipt of the recommendations of the Council may issue letter of intent to set up a new medical college and all infrastructure facilities etc. are to be completed in due course. CWP. No. 5948 of 2010 (O&M) -14- Mr. Rajiv Atma Ram, learned senior counsel appearing for the petitioner has thus argued that Section 10-A and regulations provide complete procedure and looking to the requirements of Section 10-A and the regulations the Central Govt. is though the final authority to grant letter of intent or permission but the evaluation and assessment of the scheme can only be made by the Council. His contention is that the Central Govt. was obligated to forward the application to the Council for assessment/evaluation and if there was any deficiency, the Council had to inform and intimate the petitioner for removal of the same. The