REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3964 OF 2016
(Arising out of S.L.P.(C) NO.5326 OF 2016)
Medical Council of India ... Appellant(s)
Versus
V.N. Public Health & Educational ... Respondent(s)
Trust & Ors
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The first respondent, V.N. Public Health & Educational Trust (for
short, “the Trust”), vide letter dated 30.08.2015 submitted an application
for establishment of a new medical college from the academic year 2016-17
to the competent authority of the Central Government and the said
application dated 30.08.2015 was forwarded by the Government of India to
the appellant, Medical Council of India (MCI) vide letter dated 23.09.2015.
After initial scrutiny of the application, MCI noticed that the
Essentiality Certificate issued by the Government of Kerala in favour of
the Trust was not valid as the same was not in accordance with the format
prescribed by the Establishment of the Medical College Regulations, 1999
(for short, “the Regulations”) of the MCI. Regard being had to the nature
of the Essentiality Certificate and the decision of this Court in Royal
Medical Trust (Registered) and another v. Union of India & another[1], the
MCI decided to recommend to the Central Government to disapprove the
application submitted by the Trust for establishment of a new medical
college commencing from the academic year 2016-17. The Government of India
vide its letter dated 04.11.2015 called upon the Trust to appear before the
Committee on 16.11.2015 to explain its stand. As the said respondent failed
to appear before the concerned Committee on the date fixed, the matter was
decided ex parte.
3. As the factual score would depict, the Trust being aggrieved by the
issuance of an invalid certificate by the State of Kerala and disapproval
of its scheme for establishment of a new medical college from the academic
year 2016-17 approached the High Court of Kerala at Ernakulam in Writ
Petition (C) No. 35705 of 2015. The learned single Judge vide order dated
25.11.2015 issued the following directions:-
“In the light of Ext.P1 renewal application and the renewed Essentiality
Certificate, this court is of the view that petitioner’s application for
establishment of new Medical College shall not be rejected on account of
any deficiency existed in the renewed certificate. In the meanwhile, there
shall be a direction to the third respondent to pass appropriate orders on
Ext.P6 within ten days. Post after two weeks.”
4. Thereafter the learned single Judge took note of the fresh
Essentiality Certificate and the following directions were issued as per
the order dated 16.12.2015:-
“The petitioner is an educational agency. They applied for establishment
of a medical college. The original Essentiality Certificate issued by the
State Government suffered from defects as it was not in the required
format. Based on the interim order, the petitioner’s application for
Essentiality Certificate kept pending before the Central Government and the
State Government was directed to consider the application for fresh revised
Essentiality certificate. Now it is submitted that the petitioner has
obtained a fresh Essentiality Certificate and it has been submitted before
the first respondent. Therefore the first respondent shall consider the
application and take a decision after hearing the petitioner and do the
needful in accordance with the law.”
5. Dissatisfied with the aforesaid order, the appellant preferred Writ
Appeal No. 96 of 2016. It was contended before the Division Bench that
pursuant to the order passed by the learned single Judge, the Central
Government on 23.12.2015 had asked the MCI to review the recommendation but
the said direction was not possible to be adhered to on account of the time
schedule fixed pertaining to such matters. It was also urged that the
letter of intent had to be issued by the Central Government on or before
15.01.2016 and sufficient time was not available for taking further steps
in the matter. Additionally, it was argued that as per the time schedule,
MCI was required to give the recommendation to the Central Government for
issue of letter of intent by 15.12.2015. The Division Bench, after noting
the submissions, passed the following order:-
“5. Though it is argued by the learned counsel for the appellant that the
time schedule could not be changed, still the Central Government has
sufficient power to extend the time schedule to a certain extent and when
the Central Government had requested the MCI to consider the application in
terms of the letter dated 23.12.2015, we do not think that this Court
should interfere in the matter at this stage of the proceedings.
6. As far as the judgment is concerned, the learned Single Judge had only
directed the Central Government to consider the application of the
petitioner and take a decision after hearing them. That process has
already been completed and Annexure A2 dated 23.12.2015 has been issued by
the Central Government.”
Being of this view, it declined to interfere with the order passed by
the learned single Judge and dismissed the appeal.
6. We have heard Mr. Vikas Singh, learned senior counsel along with Mr.
Gaurav Sharma, learned counsel for the appellant, Ms. Pinky Anand, learned
Additional Solicitor General along with Mr. B. Krishna Prasad, learned
counsel for respondent No. 2 and Mr. Huzefa Ahmadi, learned senior counsel
along with Mr. Ranjiv Ranjan Dwivedi, learned counsel for respondent No. 1
and Mr. M.T. George, learned counsel for respondent No. 3.
7. The focal issue that arises for consideration is whether the learned
single Judge was justified in directing the MCI to take into consideration
the revised Essentiality Certificate submitted by the Trust after 30th of
September, 2015, and whether the Trust had submitted a proper and requisite
Essentiality Certificate along with the application on 30th of August,
2015. As is demonstrable, the Trust had submitted an incomplete
application on 30th of August, 2015 which was forwarded by the Central
Government to the MCI vide communication dated 23.09.2015. Be it stated
that the MCI had noticed that the Essentiality Certificate was on record by
the time the application was forwarded to it. The MCI on scrutiny found
that the Essentiality Certificate was not in accordance with the format
prescribed by the Regulations and accordingly did not recommend for the
approval of the college.
8. Mr. Singh, learned senior counsel for the appellant, has drawn our
attention to the renewed Essentiality Certificate granted by the Government
of Kerala on 31.08.2015. The relevant part of the said Certificate reads
as follows:-
“The Managing Trustee-Secretary, V.N. Public Health & Educational Trust,
NRT Nagar, Theni, Tamil Nadu State has applied for establishment of a
Medical College at Walayar in Palakkad District. On careful consideration
of the proposal, the Government of Kerala has decided to issue an
Essentiality Certificate to the applicant for the establishment of a
Medical College with 150 seats.
It is certified that:
(a) The applicant owns and manages 300 bedded hospital at Palakkad
District.
(b) It is desirable to establish a Medical College in the public
interest.
(c) Establishment of a Medical College at Palakkad District by V.N.
Public Health & Educational Trust is feasible.
(d) The Essentiality Certificate is issued on condition that all
clinical materials as per Medical Council of India norms will be made
available in the hospital within the stipulated time as fixed by the
Medical Council of India.
(e) The Management will share 50% of the total MBBS seats with
Government to fill students from the list prepared by the Commissioner for
Entrance Examinations, Kerala.
It is further certified that in case the applicant fails to create
infrastructure for the Medical College as per Medical Council of India
norms and fresh admissions are stopped by the Central Government, the State
Government shall take over the responsibility of the students already
admitted in the College with the permission of the Central Government.”
[Emphasis added)
9. The pertinent part of the communication dated 19.10.2015 made by the
MCI to the competent authority of the Central Government is as follows:-
“It is to inform you that on perusal of the application/documents submitted
by the applicant, it is noted that as per the Essentiality Certificate
dated 31/08/2015 issued by the Government of Kerala “The Essentiality
Certificate is issued on condition that all clinical materials as per
Medical Council of India norms will be made available in the hospital
within the stipulated time as fixed by the Medical Council of India.”
However, prescribed proforma for Essentiality Certificate states that “(d)
Adequate clinical materials as per the Medical Council of India norms is
available.”
In view of the above, it is clear that at the time of issuance of
Essentiality Certificate, the applicant does not fulfill the mandatory
qualifying criteria of the availability of the “Adequate clinical material
as per the Medical Council of India norms.” Accordingly, the applicant does
not meet the mandatory criteria prescribed under the regulations.
In this regard, it is further to inform you that the Hon’ble Supreme Court
vide its judgment dated 20/08/2015 in W.P. (C) No. 705/2015-Royal Medical
Trust (Regd.) and Another Vs. Union of India and Anrs. has passed the
following Order:-
“… (A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as essentiality
certificate, consent of affiliation and physical features like land and
hospital requirement. If an applicant fails to fulfill these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfill the basic requirements would be considered at the next
stage…”
In view of the above, the Council Office has decided to return the
application for establishment of new medical college at Wayalar, Kerala
(Palakkad Institute of Medical Sciences, Palakkad, Kerala) by V.N. Public
Health & Education Trust, Tamilnadu to the Central Govt. recommending
disapproval of the scheme u/s 10A of the IMC Act, 1956 for the academic
year 2016-17, as the applicant fails to fulfill necessary requirement of
availability of the adequate clinical material as per the Medical Council
of India norms.”
10. On a perusal of the Essentiality Certificate dated 31.08.2015, it is
obvious that it is a conditional certificate. The said fact has been
reiterated by the appellant-MCI vide its communication dated 19.10.2015. A
conditional certificate cannot be regarded as the requisite Certificate
inasmuch as the conditions which are essential to the certificate are
required to be fulfilled. On the basis of such a certificate, the MCI was
not expected to approve the application submitted by an educational
institution. It had clearly communicated that the prescribed format
stipulates that adequate clinical material as per the MCI norms “is
available”. Thus, the availability has to be in praesenti but not to be a
condition to be satisfied at a later stage. That is not the postulate in
the Regulations. In Royal Medical Trust (supra), a three-Judge Bench
referring to Section 10-A of the Indian Medical Council Act, 1956 (for
brevity, “the Act’) has ruled that:-
“Section 10-A contemplates submission of a scheme to the Central Government
in the prescribed form, which scheme is then to be referred by the Central
Government to MCI for its appropriate recommendations. The scheme is to be
considered having regard to the features referred to in sub-section (7) and
is then placed before the Central Government along with the recommendations
of MCI. In exercise of powers conferred by Section 10-A read with Section
33 of the Act, MCI with the previous sanction of the Central Government has
made “Establishment of the Medical College Regulations, 1999” (hereinafter
referred to as “the Regulations”) which were published in the Gazette of
India on 28-8-1999. Para 3 of the Regulations lays down that no person
shall establish a medical college except after obtaining prior permission
of the Central Government by submitting a scheme. The Regulations then deal
with the scheme in extenso. Clauses 1 and 2 of the scheme deal with
“eligibility criteria” and “qualifying criteria”, respectively. Clause 3
then sets out certain requirement in parts (i), (ii) and (iii) concerning
various details about the status of the applicant in terms of the
eligibility criteria, name and address of the medical college including
various facets of the infrastructure and planning and the details of the
existing hospital including availability of various facilities and
capacities as also upgradation and expansion programme.”
After so stating, the Court referred to para 7 of the Regulations
which deals with the report of the MCI, and para 8 that deals with grant of
permission by the Central Government. Reference has also been made to the
schedule for receipt of applications for establishment of new medical
colleges and increase of admission capacity in an existing medical college
and processing of the applications by the Central Government and the
Medical Council of India. Thereafter, Court has proceeded to observe:-
“MCI and the Central Government have been vested with monitoring powers
under Section 10-A and the Regulations. It is expected of these authorities
to discharge their functions well within the statutory confines as well as
in conformity with the Schedule to the Regulations. If there is inaction on
their part or non-observance of the time schedule, it is bound to have
adverse effect on all concerned. …”
11. After so stating, the three-Judge Bench has directed the schedule
must ideally take care of:-
“(A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as essentiality
certificate, consent for affiliation and physical features like land and
hospital requirement. If an applicant fails to fulfil these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfil the basic requirements would be considered at the next
stage.
(B) Inspection should then be conducted by the Inspectors of MCI. By very
nature such inspection must have an element of surprise. Therefore
sufficient time of about three to four months ought to be given to MCI to
cause inspection at any time and such inspection should normally be
undertaken latest by January. Surprise inspection would ensure that the
required facilities and infrastructure are always in place and not borrowed
or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be
communicated. If the infrastructure and facilities are in order, the
medical college concerned should be given requisite permission/renewal.
However, if there are any deficiencies or shortcomings, MCI must, after
pointing out the deficiencies, grant to the college concerned sufficient
time to report compliance.
(D) If compliance is reported and the applicant states that the
deficiencies stand removed, MCI must cause compliance verification. It is
possible that such compliance could be accepted even without actual
physical verification but that assessment be left entirely to the
discretion of MCI and the Central Government. In cases where actual
physical verification is required, MCI and the Central Government must
cause such verification before the deadline.
(E) The result of such verification if positive in favour of the medical
college concerned, the applicant ought to be given requisite
permission/renewal. But if the deficiencies still persist or had not been
removed, the applicant will stand disentitled so far as that academic year
is concerned.”
12. Mr. Singh, learned senior counsel appearing for the appellant has
drawn our attention to the order dated January 18, 2016 passed in I.A. Nos.
7 & 8 in Writ Petition (Civil) No. 76 of 2015 titled Ashish Ranjan & Ors.
v. Union of India & Ors. wherein the Court had taken note of notification
issued by the MCI with the previous sanction of the Central Government.
The notification has prescribed the time schedule for receipt of
applications for establishment of new medical colleges/renewal of
permission and processing of the applications by the Central Government and
the Medical Council of India. The schedule in this regard reads as follows:-
|“S. |Stage of processing |Last date |
|No. | | |
|1 |Receipt of applications by the |Between 15th June to |
| |Central Government |7th July (both days |
| | |inclusive) of any year |
|2 |Forwarding application by the |By 15th July |
| |Central Government to Medical | |
| |Council of India | |
|3 |Technical Scrutiny, assessment and |By 15th December |
| |Recommendations for Letter of | |
| |Permission by the Medical Council | |
| |of India | |
|4 |Receipt of reply/compliance from |Two months from receipt|
| |the applicant by the Central |of recommendation from |
| |Government and for personal hearing|MCI but not beyond 31st|
| |thereto, if any, and forwarding of |January. |
| |compliance by the Central | |
| |Government to the Medical Council | |
| |of India | |
|5 |Final recommendations for the |By 30th April |
| |Letter of Permission by the Medical| |
| |Council of India | |
|6 |Issue of Letter of Permission by |By 31st May |
| |the Central Government | |
Note 1. In case of renewal of permission, the applicants shall submit the
application to the Medical Council of India by 15th July.
xxx xxx xxx
In exercise of the powers conferred by Section 33 of the Indian Medical
Council Act, 1956(102) of 1956, the Medical Council of India with the
previous sanction of the Central Government, hereby makes the following
Regulations to further amend the “Opening of a New or Higher Course of
Study or Training (including Postgraduate Course of Study or Training) and
increase of Admission Capacity in any Course of Study or Training
(Including a Postgraduate Course of Study or Training) Regulations 2000”,
namely:-
(i) These Regulations may be called the “Opening of a New or Higher Course
of Study or Training (Including Postgraduate Course of Study or Training)
and increase of Admission Capacity in any Course of Study or Training
(including Postgraduate Course of Study or Training (Amendment) Regulations
2015.
(ii) They shall come into force from the date of their publication in the
Official Gazette.”
13. The two-Judge Bench, after reproducing the entire notification which
deals with various situations, has given the stamp of approval to the said
Schedule.
14. In this context, we may profitably refer to the decision in D.Y.
Patil Medical College v. Medical Council of India & Anr.[2] wherein the
controversy had arisen due to rejection of the application of the
institution on the ground that Essentiality Certificate was not filed along
with the application form. The Court dwelled upon the principles stated in
Educare Charitable Trust v. Union of India & Anr.[3], Royal Medical Trust
(supra) and various other decisions and, after anaylsing the scheme of the
Act, has held:-
“It is apparent from the aforesaid decision and the regulations that the
application at the first instance is required to be complete and incomplete
applications are liable to be rejected. Thereafter, there has to be an
inspection and other stages of decision-making process.”
15. The impugned order passed by the High Court is to be tested and
adjudged on the anvil of the aforesaid authorities. The application for
grant of approval was filed with the Essentiality Certificate which was a
conditional one and, therefore, a defective one. It was not an Essentiality
Certificate in law. In such a situation, the High Court could not have
directed for consideration of the application for the purpose of the
inspection. Such a direction, we are disposed to think, runs counter to the
law laid down in Educare Charitable Trust (supra) and Royal Medical Trust
(supra). We may further proceed to state that on the date of the
application, the Essentiality Certificate was not in order. The Schedule
prescribed by the MCI, which had been approved by this Court, is binding on
all concerned. MCI cannot transgress it. The High Court could not have
gone beyond the same and issued any direction for conducting an inspection
for the academic year 2016-17. Therefore, the directions issued by the
learned single Judge and the affirmation thereof by the Division Bench are
wholly unsustainable.
16. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside. It will be open to the Trust to
submit a fresh application for the next academic year in consonance with
the provisions of the Regulations of the MCI and as per the time Schedule;
and in that event, it will be considered appropriately. In the facts and
circumstances of the case, there shall be no order as to costs.
...............................J.
[Dipak Misra]
...............................J.
[Shiva Kirti Singh]
New Delhi
April 18, 2016
-----------------------
[1]
[2] (2015) 10 SCC 19
[3]
[4] 2015 (10) SCC 51
[5]
[6] AIR 2014 SC 902 : (2013) 16 SCC 474
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3964 OF 2016
(Arising out of S.L.P.(C) NO.5326 OF 2016)
Medical Council of India ... Appellant(s)
Versus
V.N. Public Health & Educational ... Respondent(s)
Trust & Ors
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The first respondent, V.N. Public Health & Educational Trust (for
short, “the Trust”), vide letter dated 30.08.2015 submitted an application
for establishment of a new medical college from the academic year 2016-17
to the competent authority of the Central Government and the said
application dated 30.08.2015 was forwarded by the Government of India to
the appellant, Medical Council of India (MCI) vide letter dated 23.09.2015.
After initial scrutiny of the application, MCI noticed that the
Essentiality Certificate issued by the Government of Kerala in favour of
the Trust was not valid as the same was not in accordance with the format
prescribed by the Establishment of the Medical College Regulations, 1999
(for short, “the Regulations”) of the MCI. Regard being had to the nature
of the Essentiality Certificate and the decision of this Court in Royal
Medical Trust (Registered) and another v. Union of India & another[1], the
MCI decided to recommend to the Central Government to disapprove the
application submitted by the Trust for establishment of a new medical
college commencing from the academic year 2016-17. The Government of India
vide its letter dated 04.11.2015 called upon the Trust to appear before the
Committee on 16.11.2015 to explain its stand. As the said respondent failed
to appear before the concerned Committee on the date fixed, the matter was
decided ex parte.
3. As the factual score would depict, the Trust being aggrieved by the
issuance of an invalid certificate by the State of Kerala and disapproval
of its scheme for establishment of a new medical college from the academic
year 2016-17 approached the High Court of Kerala at Ernakulam in Writ
Petition (C) No. 35705 of 2015. The learned single Judge vide order dated
25.11.2015 issued the following directions:-
“In the light of Ext.P1 renewal application and the renewed Essentiality
Certificate, this court is of the view that petitioner’s application for
establishment of new Medical College shall not be rejected on account of
any deficiency existed in the renewed certificate. In the meanwhile, there
shall be a direction to the third respondent to pass appropriate orders on
Ext.P6 within ten days. Post after two weeks.”
4. Thereafter the learned single Judge took note of the fresh
Essentiality Certificate and the following directions were issued as per
the order dated 16.12.2015:-
“The petitioner is an educational agency. They applied for establishment
of a medical college. The original Essentiality Certificate issued by the
State Government suffered from defects as it was not in the required
format. Based on the interim order, the petitioner’s application for
Essentiality Certificate kept pending before the Central Government and the
State Government was directed to consider the application for fresh revised
Essentiality certificate. Now it is submitted that the petitioner has
obtained a fresh Essentiality Certificate and it has been submitted before
the first respondent. Therefore the first respondent shall consider the
application and take a decision after hearing the petitioner and do the
needful in accordance with the law.”
5. Dissatisfied with the aforesaid order, the appellant preferred Writ
Appeal No. 96 of 2016. It was contended before the Division Bench that
pursuant to the order passed by the learned single Judge, the Central
Government on 23.12.2015 had asked the MCI to review the recommendation but
the said direction was not possible to be adhered to on account of the time
schedule fixed pertaining to such matters. It was also urged that the
letter of intent had to be issued by the Central Government on or before
15.01.2016 and sufficient time was not available for taking further steps
in the matter. Additionally, it was argued that as per the time schedule,
MCI was required to give the recommendation to the Central Government for
issue of letter of intent by 15.12.2015. The Division Bench, after noting
the submissions, passed the following order:-
“5. Though it is argued by the learned counsel for the appellant that the
time schedule could not be changed, still the Central Government has
sufficient power to extend the time schedule to a certain extent and when
the Central Government had requested the MCI to consider the application in
terms of the letter dated 23.12.2015, we do not think that this Court
should interfere in the matter at this stage of the proceedings.
6. As far as the judgment is concerned, the learned Single Judge had only
directed the Central Government to consider the application of the
petitioner and take a decision after hearing them. That process has
already been completed and Annexure A2 dated 23.12.2015 has been issued by
the Central Government.”
Being of this view, it declined to interfere with the order passed by
the learned single Judge and dismissed the appeal.
6. We have heard Mr. Vikas Singh, learned senior counsel along with Mr.
Gaurav Sharma, learned counsel for the appellant, Ms. Pinky Anand, learned
Additional Solicitor General along with Mr. B. Krishna Prasad, learned
counsel for respondent No. 2 and Mr. Huzefa Ahmadi, learned senior counsel
along with Mr. Ranjiv Ranjan Dwivedi, learned counsel for respondent No. 1
and Mr. M.T. George, learned counsel for respondent No. 3.
7. The focal issue that arises for consideration is whether the learned
single Judge was justified in directing the MCI to take into consideration
the revised Essentiality Certificate submitted by the Trust after 30th of
September, 2015, and whether the Trust had submitted a proper and requisite
Essentiality Certificate along with the application on 30th of August,
2015. As is demonstrable, the Trust had submitted an incomplete
application on 30th of August, 2015 which was forwarded by the Central
Government to the MCI vide communication dated 23.09.2015. Be it stated
that the MCI had noticed that the Essentiality Certificate was on record by
the time the application was forwarded to it. The MCI on scrutiny found
that the Essentiality Certificate was not in accordance with the format
prescribed by the Regulations and accordingly did not recommend for the
approval of the college.
8. Mr. Singh, learned senior counsel for the appellant, has drawn our
attention to the renewed Essentiality Certificate granted by the Government
of Kerala on 31.08.2015. The relevant part of the said Certificate reads
as follows:-
“The Managing Trustee-Secretary, V.N. Public Health & Educational Trust,
NRT Nagar, Theni, Tamil Nadu State has applied for establishment of a
Medical College at Walayar in Palakkad District. On careful consideration
of the proposal, the Government of Kerala has decided to issue an
Essentiality Certificate to the applicant for the establishment of a
Medical College with 150 seats.
It is certified that:
(a) The applicant owns and manages 300 bedded hospital at Palakkad
District.
(b) It is desirable to establish a Medical College in the public
interest.
(c) Establishment of a Medical College at Palakkad District by V.N.
Public Health & Educational Trust is feasible.
(d) The Essentiality Certificate is issued on condition that all
clinical materials as per Medical Council of India norms will be made
available in the hospital within the stipulated time as fixed by the
Medical Council of India.
(e) The Management will share 50% of the total MBBS seats with
Government to fill students from the list prepared by the Commissioner for
Entrance Examinations, Kerala.
It is further certified that in case the applicant fails to create
infrastructure for the Medical College as per Medical Council of India
norms and fresh admissions are stopped by the Central Government, the State
Government shall take over the responsibility of the students already
admitted in the College with the permission of the Central Government.”
[Emphasis added)
9. The pertinent part of the communication dated 19.10.2015 made by the
MCI to the competent authority of the Central Government is as follows:-
“It is to inform you that on perusal of the application/documents submitted
by the applicant, it is noted that as per the Essentiality Certificate
dated 31/08/2015 issued by the Government of Kerala “The Essentiality
Certificate is issued on condition that all clinical materials as per
Medical Council of India norms will be made available in the hospital
within the stipulated time as fixed by the Medical Council of India.”
However, prescribed proforma for Essentiality Certificate states that “(d)
Adequate clinical materials as per the Medical Council of India norms is
available.”
In view of the above, it is clear that at the time of issuance of
Essentiality Certificate, the applicant does not fulfill the mandatory
qualifying criteria of the availability of the “Adequate clinical material
as per the Medical Council of India norms.” Accordingly, the applicant does
not meet the mandatory criteria prescribed under the regulations.
In this regard, it is further to inform you that the Hon’ble Supreme Court
vide its judgment dated 20/08/2015 in W.P. (C) No. 705/2015-Royal Medical
Trust (Regd.) and Another Vs. Union of India and Anrs. has passed the
following Order:-
“… (A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as essentiality
certificate, consent of affiliation and physical features like land and
hospital requirement. If an applicant fails to fulfill these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfill the basic requirements would be considered at the next
stage…”
In view of the above, the Council Office has decided to return the
application for establishment of new medical college at Wayalar, Kerala
(Palakkad Institute of Medical Sciences, Palakkad, Kerala) by V.N. Public
Health & Education Trust, Tamilnadu to the Central Govt. recommending
disapproval of the scheme u/s 10A of the IMC Act, 1956 for the academic
year 2016-17, as the applicant fails to fulfill necessary requirement of
availability of the adequate clinical material as per the Medical Council
of India norms.”
10. On a perusal of the Essentiality Certificate dated 31.08.2015, it is
obvious that it is a conditional certificate. The said fact has been
reiterated by the appellant-MCI vide its communication dated 19.10.2015. A
conditional certificate cannot be regarded as the requisite Certificate
inasmuch as the conditions which are essential to the certificate are
required to be fulfilled. On the basis of such a certificate, the MCI was
not expected to approve the application submitted by an educational
institution. It had clearly communicated that the prescribed format
stipulates that adequate clinical material as per the MCI norms “is
available”. Thus, the availability has to be in praesenti but not to be a
condition to be satisfied at a later stage. That is not the postulate in
the Regulations. In Royal Medical Trust (supra), a three-Judge Bench
referring to Section 10-A of the Indian Medical Council Act, 1956 (for
brevity, “the Act’) has ruled that:-
“Section 10-A contemplates submission of a scheme to the Central Government
in the prescribed form, which scheme is then to be referred by the Central
Government to MCI for its appropriate recommendations. The scheme is to be
considered having regard to the features referred to in sub-section (7) and
is then placed before the Central Government along with the recommendations
of MCI. In exercise of powers conferred by Section 10-A read with Section
33 of the Act, MCI with the previous sanction of the Central Government has
made “Establishment of the Medical College Regulations, 1999” (hereinafter
referred to as “the Regulations”) which were published in the Gazette of
India on 28-8-1999. Para 3 of the Regulations lays down that no person
shall establish a medical college except after obtaining prior permission
of the Central Government by submitting a scheme. The Regulations then deal
with the scheme in extenso. Clauses 1 and 2 of the scheme deal with
“eligibility criteria” and “qualifying criteria”, respectively. Clause 3
then sets out certain requirement in parts (i), (ii) and (iii) concerning
various details about the status of the applicant in terms of the
eligibility criteria, name and address of the medical college including
various facets of the infrastructure and planning and the details of the
existing hospital including availability of various facilities and
capacities as also upgradation and expansion programme.”
After so stating, the Court referred to para 7 of the Regulations
which deals with the report of the MCI, and para 8 that deals with grant of
permission by the Central Government. Reference has also been made to the
schedule for receipt of applications for establishment of new medical
colleges and increase of admission capacity in an existing medical college
and processing of the applications by the Central Government and the
Medical Council of India. Thereafter, Court has proceeded to observe:-
“MCI and the Central Government have been vested with monitoring powers
under Section 10-A and the Regulations. It is expected of these authorities
to discharge their functions well within the statutory confines as well as
in conformity with the Schedule to the Regulations. If there is inaction on
their part or non-observance of the time schedule, it is bound to have
adverse effect on all concerned. …”
11. After so stating, the three-Judge Bench has directed the schedule
must ideally take care of:-
“(A) Initial assessment of the application at the first level should
comprise of checking necessary requirements such as essentiality
certificate, consent for affiliation and physical features like land and
hospital requirement. If an applicant fails to fulfil these requirements,
the application on the face of it, would be incomplete and be rejected.
Those who fulfil the basic requirements would be considered at the next
stage.
(B) Inspection should then be conducted by the Inspectors of MCI. By very
nature such inspection must have an element of surprise. Therefore
sufficient time of about three to four months ought to be given to MCI to
cause inspection at any time and such inspection should normally be
undertaken latest by January. Surprise inspection would ensure that the
required facilities and infrastructure are always in place and not borrowed
or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be
communicated. If the infrastructure and facilities are in order, the
medical college concerned should be given requisite permission/renewal.
However, if there are any deficiencies or shortcomings, MCI must, after
pointing out the deficiencies, grant to the college concerned sufficient
time to report compliance.
(D) If compliance is reported and the applicant states that the
deficiencies stand removed, MCI must cause compliance verification. It is
possible that such compliance could be accepted even without actual
physical verification but that assessment be left entirely to the
discretion of MCI and the Central Government. In cases where actual
physical verification is required, MCI and the Central Government must
cause such verification before the deadline.
(E) The result of such verification if positive in favour of the medical
college concerned, the applicant ought to be given requisite
permission/renewal. But if the deficiencies still persist or had not been
removed, the applicant will stand disentitled so far as that academic year
is concerned.”
12. Mr. Singh, learned senior counsel appearing for the appellant has
drawn our attention to the order dated January 18, 2016 passed in I.A. Nos.
7 & 8 in Writ Petition (Civil) No. 76 of 2015 titled Ashish Ranjan & Ors.
v. Union of India & Ors. wherein the Court had taken note of notification
issued by the MCI with the previous sanction of the Central Government.
The notification has prescribed the time schedule for receipt of
applications for establishment of new medical colleges/renewal of
permission and processing of the applications by the Central Government and
the Medical Council of India. The schedule in this regard reads as follows:-
|“S. |Stage of processing |Last date |
|No. | | |
|1 |Receipt of applications by the |Between 15th June to |
| |Central Government |7th July (both days |
| | |inclusive) of any year |
|2 |Forwarding application by the |By 15th July |
| |Central Government to Medical | |
| |Council of India | |
|3 |Technical Scrutiny, assessment and |By 15th December |
| |Recommendations for Letter of | |
| |Permission by the Medical Council | |
| |of India | |
|4 |Receipt of reply/compliance from |Two months from receipt|
| |the applicant by the Central |of recommendation from |
| |Government and for personal hearing|MCI but not beyond 31st|
| |thereto, if any, and forwarding of |January. |
| |compliance by the Central | |
| |Government to the Medical Council | |
| |of India | |
|5 |Final recommendations for the |By 30th April |
| |Letter of Permission by the Medical| |
| |Council of India | |
|6 |Issue of Letter of Permission by |By 31st May |
| |the Central Government | |
Note 1. In case of renewal of permission, the applicants shall submit the
application to the Medical Council of India by 15th July.
xxx xxx xxx
In exercise of the powers conferred by Section 33 of the Indian Medical
Council Act, 1956(102) of 1956, the Medical Council of India with the
previous sanction of the Central Government, hereby makes the following
Regulations to further amend the “Opening of a New or Higher Course of
Study or Training (including Postgraduate Course of Study or Training) and
increase of Admission Capacity in any Course of Study or Training
(Including a Postgraduate Course of Study or Training) Regulations 2000”,
namely:-
(i) These Regulations may be called the “Opening of a New or Higher Course
of Study or Training (Including Postgraduate Course of Study or Training)
and increase of Admission Capacity in any Course of Study or Training
(including Postgraduate Course of Study or Training (Amendment) Regulations
2015.
(ii) They shall come into force from the date of their publication in the
Official Gazette.”
13. The two-Judge Bench, after reproducing the entire notification which
deals with various situations, has given the stamp of approval to the said
Schedule.
14. In this context, we may profitably refer to the decision in D.Y.
Patil Medical College v. Medical Council of India & Anr.[2] wherein the
controversy had arisen due to rejection of the application of the
institution on the ground that Essentiality Certificate was not filed along
with the application form. The Court dwelled upon the principles stated in
Educare Charitable Trust v. Union of India & Anr.[3], Royal Medical Trust
(supra) and various other decisions and, after anaylsing the scheme of the
Act, has held:-
“It is apparent from the aforesaid decision and the regulations that the
application at the first instance is required to be complete and incomplete
applications are liable to be rejected. Thereafter, there has to be an
inspection and other stages of decision-making process.”
15. The impugned order passed by the High Court is to be tested and
adjudged on the anvil of the aforesaid authorities. The application for
grant of approval was filed with the Essentiality Certificate which was a
conditional one and, therefore, a defective one. It was not an Essentiality
Certificate in law. In such a situation, the High Court could not have
directed for consideration of the application for the purpose of the
inspection. Such a direction, we are disposed to think, runs counter to the
law laid down in Educare Charitable Trust (supra) and Royal Medical Trust
(supra). We may further proceed to state that on the date of the
application, the Essentiality Certificate was not in order. The Schedule
prescribed by the MCI, which had been approved by this Court, is binding on
all concerned. MCI cannot transgress it. The High Court could not have
gone beyond the same and issued any direction for conducting an inspection
for the academic year 2016-17. Therefore, the directions issued by the
learned single Judge and the affirmation thereof by the Division Bench are
wholly unsustainable.
16. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside. It will be open to the Trust to
submit a fresh application for the next academic year in consonance with
the provisions of the Regulations of the MCI and as per the time Schedule;
and in that event, it will be considered appropriately. In the facts and
circumstances of the case, there shall be no order as to costs.
...............................J.
[Dipak Misra]
...............................J.
[Shiva Kirti Singh]
New Delhi
April 18, 2016
-----------------------
[1]
[2] (2015) 10 SCC 19
[3]
[4] 2015 (10) SCC 51
[5]
[6] AIR 2014 SC 902 : (2013) 16 SCC 474
