UNION OF INDIA AND ORS.

ALL INDIA CHILDREN CARE AND EDUCATIONAL

DEVELOPMENT SOCIETY, AZAMGARH AND ANR.

MARCH 11, 2002

[S. RAJENDRA BABU AND RUMA PAL, JJ.)

Education:

Indian Medical Council Act, 1956-Section JOA-Establishment of new C Medical College-Permission /or-Fulfilment of conditions to seek benefit of deemed approval by Central Government-Applicant-society submitted scheme under the Act to the Central Government for establishment of Medical Col/ege- Also submitted application under the Act-However, failed to fulfil the requirement of owning and managing 300 bedded hospital, and also sufficient D staff and clinical facilities-Held, since there was failure of statutory and mandatory pre-conditions required under the Act there is no deemed approval by the Central Government.

• Respondent-society submitted a scheme under the Indian Medical Council Act, 1956 regarding establishment of Medical College to Central E Government for approval. Respondent-society then filed a writ petition seeking direction of non-interference of Medical Council of India with the peaceful establishment and running of a Medical College. High Court holding that there is a deemed approval of the scheme submitted by the respondent by the Central Government, allowed the petition. Hence the present appeal F Allowing the appea~ the Court

HELD: 1.1. It is evident from a perusal of the scheme contained in Section IOA of the Indian Medical Council Act, 1956 that an application submitted for establishment of a Medicai College in full compliance with the statutory and mandatory pre-conditions laid down under Section JOA of the G Act alone would be entitled to the benefit of deemed approval by the Central Government. (366-F]

1.2. In the instant case, respondent-society had to fulfil the requirement of owning and managing 300 beds hospital The respondent has not till date fulfilled all the requirements, which it is under an obligation to fulfil on the H 363

A date of making of the application under Section IOA(2) of the Act to the Central Government. It even did not have sufficient staff and enough clinical facilities. The High Court lost sight of the fact that there was mere proposal from the respondent-society for grant of permission for establishing a new medical college. At !hat stage, examination of the claims for approval had not been made and the Central Government had asked for proof relating to B the ownership and management of 300 bedded hospitals as also the required land and there was no response to that by the respondents.

[366-F-G-H; 367-A-B]

1.3. Considering the fact that large number of students will be affected, C this Court ordered inspection by the Medical Council. Even thereafter, inspection was not allowed by the respondent-society on one specious reason or the other. In .the circumstances, when the respondent society has not fulfilled the requirements under the Indian Medical Council Act, 1956 nor has allowed the appellants the conduct the appropriate inspection, the order passed by the High Court is set aside. [367-D; 368-A-B] D

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3237 of 1999.

From the Judgment and Order dated 11.11.98 of the Allahabad High Court in C.W.P. No. 26336 of the 1998.

WITH

C.A. No. 1992 of 2002.

Altaf Ahmed, Additional Solicitor General, Dinesh Dwiyedi, N.N.

Goswami, Tapas Ray, P.P. Rao, Subodh Markandeya, Rajiv Nanda, Y.P.

F Mahajan, Ms. Varuna Bhandari, D.S. Mabra, Raj Kumar Gupta, Sheo Kumar Gupta, A.N. Bardiyar, Maninder Singh, A. Mariarnutham, Ms. Pratibha M. Singh, Ms. Kavita Wadia, Ms. Chitra Markandaya, Alok Gupta and Ms.

Feroze Bano for the appearing parties. ' The Judgment of the Court was delivered by

G RAJENDRA BABU, J. Leave granted in SLP (C) No. 1387611999.

This appeal is also heard along with Civil Appeal No; 3237/1999. ...,.,

In Civil Appeal No. 3237/1999 the challenge is to an order made by the High Court in a writ petition filed assailing two orders dated 8.5.1998 and 22.5.1998 and seeking for a direction not to interfere with the peaceful H establishment and running of a medical college at Azamgarh by the respondent

U.0.1 v. ALL INDIA CHILD. CARE AND EDUCATIONAL DEVELOP. SOCIETY{RAJENDRA BABU, J.J365

society.

The High Court took the view that there is a deemed approval of the Central Government in respect of the scheme submitted by the respondent society in terms of Section IOA(5) of the Indian Medical Council Act, 1956 [hereinafter referred to as 'the Act'] and on that basis the orders dated 8.5.1998 and 22.5.1998 stood quashed. The appellants contended before the High B Court that the respondent society does not fulfil the statutory.pre-conditions required to be fulfilled before making an application to attract the deeming approval of Section IOA(5) of the Act. They submittea that a scheme of making of an application purported to be under Section IOA(2)ofthe Act by itself is not a proper and valid application because it has got to fulfil all the C conditions requisite for the same. According to the appellants, there is no complete application at the relevant time and such an application came only in the year 1997 and that a mere proposal to establish a medical college would not amount to making of a scheme and that on 9.1.1998, the Executive Committee of the Medical Council of India [hereinafter referred to as 'the Council'] had recommended issuance of a letter of intent in favour of D respondent society to start a medical college at Azamgarh for 50 admissions annually. Thereafter, several inspections Wok place but there was no fulfilment of the requirements at all.

Under Section lOA(l) of the Act, it is provided that no person shall E establish a medical college or shall open a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of the section. Clause (a) of sub-section (2)

~ of Section l OA of the Act provides that every person or medical college shall, for the purpose of obtaining permission under sub-section (l), submit F to the Central Government a scheme in accordance with the provisions of

cla4se (b) and the Central Government shall refer the scheme to the Council for its recommendations. Under clause (b) of Section IOA(2) it is laid down that the scheme refe1red to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with G such fee as may be prescribed. In terms of Section I OA(3) of the Act, the Council, on receipt of a scheme under sub-section (2), may obtain suth other particulars as may be considered necessary by it from the person or the medical college concerned and thereafter it may, if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or the medical college concerned for making a written H

A representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council and may also 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. Section IOA(4) of the Act provides that the Central Government may, after considering the scheme and the recommendations of the Council B and after <?btaining 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). However, in the first C proviso to sub-section (4) it is prescribed that no scheme shall be disapproved by the Central Government except after giving the person or college concerned reasonable opportunity of being heard and in the second proviso it is laid down that even if a scheme has been disapproved, the same shall not prevent any person or medical college whose scheme has been disapproved to submit a fresh scheme and the provisions of the section shall apply to such scheme D as if such scheme has been submitted afresh. Section 10A(5) provides that if 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 E 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. However, in computing the time-limit specified in sub-section (5) the time taken by the person or college concerned submitting the scheme, in furnishing the particulars called for by the Council shall be excluded.

F From a perusal of the scheme contained in Section 1 OA of the Act, it is evident that an application submitted in full compliance with the statutory and mandatory pre-conditions laid down under Section l OA of the Act alone would be entitled t0 the benefit of deeming approval. In the present case, G respondent society had to fulfil the requirement of owning and managing 300

beds hospital and details whereof shall be incorporated in the application as made under Section IOA(2) of the Act to the Central Government. The respondent has not till date fulfilled all the requirements, which it is under an obligation to fulfil on the date of making of the application. On the date of submission of the application, the respondent society did not own and H possess a hospital of 300 beds apart from not having sufficient staff and

U.0.1. "ALL INDIA CHILD. CARE AND EDUCATIONAL DEVELOP. SOCIETY (RAJENDRA BABU, J.] 367

nough clinical facilities. The High Court lost sight of the fact that there was A mere proposal from the respondent society for grant of permission for establishing a new medical college. At that stage, examination of the claims for approval had not been made and the Central Government had asked for proof relating to the ownership and management of 300 bedded hospital as also the required land and, therefore, a letter was sent on 4.10.1996 by th~ B Central Government to the respondent society to submit the proof in this regard and there was no response to that letter till 17 .2.1997, when the Central Government received a reply from the respondent society indicating that the Department of Health, State of U.P. was willing to create an arrangement by providing the District Hospital, Azamgarh for the purpose of teaching hospital on certain conditions. But the norms of the Council was C that the teaching hospital should be owned and managed by the applicant. On 21.3.1997, the Central Government was informed that the arrangement sought to be made between the Department of Health, State ofU.P. and the respondent society was revoked. Thus when there was no fulfilment of the condition required under the Act and that aspect not having been examined by the High Court, we cannot sustain the order made by the High Court. However, at this D stage, it is pertinent to state that considering the fact that a large number students will be affected, this Court by an order made on 4.5.2001 stated as follows:

"Having perused the statements furnished by the College and the E Medical Council of India and also the letter of the Director General of the Medical College of the State of U.P. in regard to compliance of requirements of I 993 Regulations, we are of the opinion that it would be just and appropriate to permit the College to start after making due arrangements, imparting institution to the existing students who have passed I st year of the MBBS course within two weeks F from today. The College shall.be inspected by the Medical Council of India with reference to the deficiencies pointed out as per the standards fixed in 1993 Regulations in the first week of August 2001 after due notice to the applicant-respondent College. The report whereof shall be submitted in this Court in the 2nd week of August G 200 I by the MCI. Further orders on the I.As will be passed on the basis of inspection report of MCI. However, we make it clear that if the college does not come up to the standards fixed under 1993 Regulations, we will be constrained to consider the question of ordering closure of the College and at that stage appropriate order for the absorption of the students in other colleges of Uttar Pradesh will be H

passed, if considered necessary. We also make it clear that this arrangement is without prejudice to the contentions raised by the Medical Council of India in the appeal."

Even thereafter, it is submitted that inspection was not allowed by the respondent society on one specious reason or the other. In the circumstances, B when the respondent society has not fulfilled the requirements nor has allowed the appellants to conduct the appropriate inspection, we have no option but to set aside the order made by the High Court and dismiss the writ petitions filed by the respondent society.

c Both appeals shall stand allowed accordingly. No costs.

N.J.

Appeals allowed.

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