HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7427OF 2011 . DATED 29th April, 2011 BETWEEN Jagan Palli B.R. Educational Society, Bhaskar Medical College, Yenkapalli village, RR District, Rep. by Dr.M.Narsing Rao, Principal/Dean of Bhaskar Medical College …Petitioner And The Union of India, Ministry of Health andFamily Welfare, Department of Health, New Delhi, Through its Secretary and anr ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.7427 of 2011 ORDER: The petitioner, a Medical College run by a society under the name and style of ‘Jogan Palli B.R.Educational Society, Bhaskar Medical College’, Yenkapally Village, Moinabad Mandal, Ranga Reddy District, assails the inaction on the part of the Medical Council of India, the second respondent herein, in acting upon the petitioner’s application dated 27.11.2010 submitted to it and in conducting a physical inspection of the petitioner College for the purpose of starting the Post Graduate Medical Course from the Academic Year 2011-12. It also seeks a consequential direction to the second respondent to send its recommendation to the Union of India, the first respondent herein, upon such physical inspection for grant of approval for admission to Post Graduate Courses in Medicine with an intake of 48 students from the said academic year. The petitioner college was incorporated and registered on 11.04.2001 and began the MBBS course from the year 2003 with an intake capacity of 150 students for the said course after having received the letter of permission from the first respondent. Thereafter, approval for 2nd, 3rd, 4th and 5th years of MBBS course was granted in the years 2006, 2007, 2008 and 2009 respectively. While so, the petitioner college intended to start Post Graduate Medical Course from the academic year 2011-12 and accordingly it submitted appropriate applications dated 27.11.2010 for each of the faculties it wished to began, to the second respondent within the time limit. Thereupon, application dated 22.12.2010 was submitted to Dr.NTR University of Health Sciences (hereinafter referred to as ‘the University’ for convenience sake) for its consent of affiliation as the same is required for starting the Post Graduate Medical Courses. Pursuant to the application dated 27.11.2010 of the petitioner college, the second respondent by its letter dated 03.01.2011 intimated to it inter alia to the effect that the consent of affiliation from the University was not submitted along with its applications and therefore it was directed to send the said consent of affiliation within ten days therefrom failing which it would be presumed that the petitioner college was not interested in beginning the aforestated courses and that the second respondent would be constrained to return the applications submitted by the petitioner college. Thereupon, as the time limit given by the second respondent was coming to an end, the petitioner college sought extension of 15 days for submission of the consent of affiliation from the University to it. In the meanwhile, on the basis of the application dated 22.12.2010 submitted by the petitioner college to the University seeking the consent of affiliation, after conducting a due enquiry on 04.01.2011 and thereupon, the University by its letter dated 11.01.2011 sent the consent of affiliation to the petitioner college as well as the second respondent for starting Post Graduate Medical Courses subject to the grant of permission by the first respondent. The said consent of affiliation was given a life span of two years from the date of its issuance. However, owing to a mistake crept in the said consent of affiliation to the effect that instead of mentioning 14 courses it was inadvertently mentioned as 13 courses, the University issued the consent of affiliation afresh dated 31.01.2011 correctly mentioning 14 courses as sought for by the petitioner college with an intake of 48 students and the same was sent to the petitioner college as well as the second respondent. While things stood thus, the second respondent refused to consider the applications of the petitioner college as it failed to submit the consent of affiliation from the University to the second respondent in the first instance along with its applications dated 27.11.2010 and thereafter again it failed to submit the same within the time limit set by the second respondent, namely, ten days from its communication dated 03.01.2011. It is the case of the petitioner that as the last date for inspection of all such Post Graduate Medical Courses is extended to 30.03.2011, there is no merit in the action of the second respondent in not conducting physical verification of the petitioner college and its premises and sending its recommendation to the first respondent for grant of approval in the matter. It is the further case of the petitioner college that when all the requisite guidelines laid down by the second respondent were fulfilled, there is no justifiable reasons for it to refuse to do so and that 48 potential first year Post Graduate students will lose their legitimate right to get admitted in the petitioner college apart from the fact that the petitioner college is going to suffer a huge monetary loss as it invested in raising the necessary infrastructure to begin the Post Graduate Medical Courses. According to the petitioner college, it amounts to violation of Articles 14 and 19(1)(g) of the Constitution. Hence, the writ petition. The petitioner college filed additional affidavit dated 01.04.2011 inter alia to the effect that the communication dated 22.03.2011 sent by the second respondent and produced before this Court on 28.03.2011 was a fabricated and self-serving document brought into existence with a dishonest intention to prevent the petitioner college from getting its legal rights enforced. It was further pointed out that the notification dated 11.01.2010 is not applicable to the case on hand in view of the issuance of public notice dated 01.03.2011 extending the time schedule for issuance of letter of permission till 30.03.2011. It is also averred that the second respondent had conducted inspection after 22.03.2011 for Post Graduate Medical Courses at three other Medical Colleges on 25.03.2011, namely, Shadan Institute of Medical Sciences, Perancheru, Rajendranagar, Ranga Reddy District; Kakatiya Medial College, Warangal and Konaseema Institute of Medical Sciences, Amalapuram, and that it did not conduct such inspection in respect of the petitioner college. The second respondent filed a counter affidavit inter alia specifically denying the averments made in the affidavit filed in support of the writ petition as well as the additional affidavit. It is stated that as per Section 10-A of the Medical Council Act, 1956 (for short ‘the Act’) every person is now obliged to seek a prior permission from the first respondent for establishing any Medical College or for starting higher medical courses. It is pointed out that in view of Indian Medical Council (Amendment) Ordinance, 2010, the power under Section 10-A of the Act is vested with the Board of Governors of the second respondent to entertain the applications 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 as referred to under Section 10-A of the Act. It is further averred that under the Establishment of Medical College Regulations, 1999, the qualification criteria was laid down to apply for permission to establish a college subject to its fulfillment. It is clearly mentioned that the petitioner college submitted its applications dated 27.11.2010 without enclosing therewith the consent of affiliation from the University concerned, which is mandatory for considering the applications but notwithstanding the same the petitioner college was given an opportunity of 10 days time to submit the same by its letter dated 03.01.2011. However, the petitioner college again failed to do so. It is stated that thereafter the second respondent returned the applications dated 27.11.2010 to the petitioner by its letter dated 22.03.2011. According to the second respondent, an application submitted without the consent of affiliation from the University concerned is no application in the eye of law. The second respondent therefore prayed for dismissal of the writ petition. The petitioner college filed a reply affidavit dated 08.04.2011 mainly denying all the counter averments. It also reiterated certain of the contentions raised in the affidavit filed along with the writ petition. It is also stated that had the second respondent rejected the applications made by the petitioner college it should have returned to it immediately thereafter but till 22.03.2011 it did not do so. Even the communication dated 22.03.2011 which had been produced before this Court was not received by the petitioner college whereunder the applications submitted by the petitioner college were stated to have been returned to it. Heard the learned counsel for the petitioner college, the learned Assistant Solicitor General for India for the first respondent and the learned standing counsel for the second respondent. The learned counsel for the petitioner college submitted that although the petitioner college submitted its applications dated 27.11.2010 within the time to the second respondent, it failed to act upon the same and to conduct physical inspection of the petitioner college and that upon such physical inspection to recommend the first respondent for grant of approval for admission to Post Graduate Medical Courses with an intake of 48 students from the academic year 2011-12. The learned counsel pointed out that in spite of the consent of affiliation directly sent by the University to the second respondent, it did not process the applications submitted by the petitioner college. He contended that the notification dated 11.01.2010 is not applicable to the case of the petitioner college as the subsequent public notice dated 01.03.2011 displayed on the website of the second respondent extended the time schedule for the issuance of letter of permission till 31.03.2011 in respect of starting or increasing intake capacity of Post Graduate Courses for the academic year 2011-12. He denied the aspect of delay put forth by the second respondent in the submission of the consent of affiliation by the petitioner college and also the veracity of the communication dated 22.03.2011 addressed by the second respondent to the petitioner college and argued that the second respondent conducted inspection on 25.03.2011 in three other Medical Colleges in the State of Andhra Pradesh, namely, Shadan Institute of Medical Sciences, Perancheru, Rajendranagar, Ranga Reddy District; Kakatiya Medial College, Warangal and Konaseema Institute of Medical Sciences, Amalapuram, and it is not understandable as to what prevented the second respondent to conduct such physical inspection in the petitioner college too. The learned counsel therefore prayed that the writ petition may be allowed. Per contra, the learned standing counsel for the second respondent vehemently contended that the very applications dated 27.11.2010 submitted by the petitioner college without annexing therewith the consent of affiliation from the University concerned are not all valid applications in the eye of law. He however submitted that notwithstanding the defect in the applications, the petitioner college had been given an opportunity and to that effect a communication dated 03.01.2011 was sent to it by the second respondent directing it to submit the consent of affiliation from the University within ten days therefrom. He pointed out that the petitioner college utterly failed to submit the consent of affiliation from the University to the second respondent within ten days granted to it and thereby failed to follow the time schedule given by the second respondent. The learned standing counsel therefore argued that the applications of the petitioner college were rightly rejected and returned to it by the second respondent vide its letter 22.03.2011, a copy of which was produced before this Court. He therefore sought for the dismissal of the writ petition in limine. It is to be noticed that the second respondent being a body constituted under the provisions of the Indian Medical Council Act, 1956 (for short ‘the Act’) has been given the responsibility of discharging the duty of maintenance of the highest standards of medical education throughout the country. In this regard, reference may be made to the Judgment of the Supreme Court in State of Kerala vs. T.P.Roshana[1] wherein it was inter alia held thus: “16. The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses.” With a view to check the unregulated, uncontrolled and mushrooming growth of medical colleges and institutions in the country, it is necessary for the second respondent to maintain lofty standards of education in medical institutions. Keeping this avowed objective in mind, the provisions of the Act was amended and Section 10-A of the Act was brought into the statute book. It reads as under: “10A: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 post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training). except with the previous permission of the Central Government obtained in accordance with the provisions of this section. (2) (a). Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for it 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 a such fee as may be prescribed. (3) On receipt of a scheme by the Council under sub- action (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 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 Government. (4) The Central Government- 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 Government 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 Government 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). (5) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2) no order passed by the Central Government has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and, accordingly, the permission of the Central Government required under sub- section (1) shall also be deemed to have been granted. (6) In computing the time-limit specified in sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing any particulars celled for by the Council, or by the Central Government, shall be excluded. (7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely : (a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under (section 19A) or,, as the case may be, under (section 20) in the case of post-graduate medical education; (b) Whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission-capacity has adequate financial resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme; (d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme; (e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by person having the recognised medical qualifications; (f) the requirement of manpower in the field of practice of medicine; and (g) any other factors as may be prescribed. (8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned.” A perusal of the said provision makes it inter alia abundantly clear that it is mandatory and obligatory for any person desirous of establishing a medical college or to start a new or higher course of study in the existing medical college, to obtain prior permission from the Central Government under the said provision. Admittedly, the petitioner college submitted its applications dated 27.11.2011 to the second respondent without furnishing therewith the consent of affiliation from the University, which is mandatory requirement for processing its applications by the second respondent. As per the Establishment of Medical College Regulations, 1999, the qualification criteria was specifically laid down therein for applying and seeking permission to establish a college subject to its fulfillment including the schedule for submission and receipt of applications therefor. The petitioner college submitted its application dated 22.12.2010 to the University, that is 25 days after the submission of its applications to the second respondent, seeking the consent of affiliation. At the threshold this attitude on the part of the petitioner college clearly gives an indication that the petitioner college has not followed stipulated procedure and the time schedule to be adopted in getting the approval from the respondents for beginning Post Graduate Medical Courses for the academic year 2011-12. In fact, the petitioner college should have in the first instance obtained the consent of affiliation from the University well in advance and then it should have annexed the same along with its applications dated 27.11.2010 submitted to the second respondent. But the petitioner college failed to do so initially. Despite the same, the second respondent gave an opportunity to the petitioner college through its letter dated 03.01.2011 to submit the consent of affiliation from the University within ten days therefrom. Again the petitioner college did not comply with this requirement within the time limit set by the second respondent. On the other hand, it is explicit from the record that the petitioner college had applied to the University on 22.12.2010 seeking the consent of affiliation but the University took time to cause an enquiry and to conduct an inspection of the petitioner college before issuing the consent of affiliation. It is stated that the University dispatched the consent of affiliation to the petitioner college as well as the second respondent on 11.01.2011. However, due to inadvertence, according to the petitioner college, a mistake was crept in the consent of affiliation issued by the University to the effect that instead of mentioning 14 courses, it mentioned only 13 courses therein. When the said mistake was brought to the notice of the University by the petitioner college, again fresh consent of affiliation was issued by the University on 31.01.2011 both to the petitioner college as well as the second respondent. In the meanwhile, the time limit given by the second respondent for submitting the consent of affiliation came to an end. Therefore, the contention of the second respondent that an application without the consent of affiliation is not a valid application in the eye of law, is tenable, justifiable and legal. As a result, the applications submitted on 27.11.2010 without the consent of affiliation sent by the University can be held to be incomplete applications, as has been rightly argued by the second respondent. In this regard, the Judgment of the Supreme Court in Mridul Dhar vs. Union of India[2] relied upon by the second respondent is apposite wherein it was thus: “35. Having regard to the aforesaid, we issue the following directions: 1. All participating States and Union Territories’ Boards of Secondary Education shall declare 10+2 result by 10th June of every year and make available the marksheets to the students by 15th June. The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, West Bengal would make available to the students concerned the marksheets by 15-6-2005. Heads of Boards would be personally liable to ensure compliance. 2. The timetable mentioned in notification dated 25-2-2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State medical/dental entrance examination shall be declared before 15th of June. 3. The States/Union Territories shall complete the admission process of first round of State-level medical/dental college admission by 25th July i.e. a week before start of second round counselling or allotment of seats under all-India quota. The correct vacancy position shall be intimated by the Chief Secretary of the State/Union Territory to the DGHS by 26th July. It shall be verified by the Head of the institution/or Head of the medical institution/Health Department of the State. 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 Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences. 5. All seats in all-India quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published. 6. By 31st October, the States, through the Chief Secretaries/Health Secretaries shall file a report in regard to admissions, with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face the consequences for violation. 7. The DGHS shall file by 31-1-2005 report in regard to feasibility of conducting counselling through the process of video- conferencing. 8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent all- India