Madras High Court
Dharma Medical And Research Charitable vs Government Of India on 21 January, 2006
Bench: A.P.Shah, Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/01/2006
C O R A M
THE HON'BLE MR.A.P.SHAH, THE CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN
W.P.NO.4535 of 2004
and W.P.No. 276 of 2005
AND
W.P.M.P.Nos.22033 and 311 of 2005
Dharma Medical and Research Charitable
Trust, No.31, III Cross Street,
Ellaiamman Colony, Teynampet,
Chennai-600 086 rep.by its Chairman
and Managing Trustee ... Petitioner in both
the writ petitions
-Vs-
1. Government of India, rep.by
Secretary to Government,
Ministry of Health, New Delhi. ... R1 in WP.276/2005
2. The State of Tamil Nadu, rep.
by Secretary to Government,
Health and Family Welfare
Department, Fort St.George,
Chennai-600 009. ... R2 in WP.276/2005
3. Central Council of Indian Medicine,
61-65, Institutional Area,
Janakpuri, New Delhi-110 058. ... R1 in WP.4535/2004
R3 in WP.276/2005
4. The Tamil Nadu Dr.M.G.R.Medical
University, Chennai,
P.B.No.1200, No.69, Anna Salai,
Guindy, Chennai-600 032 rep.
by its Registrar. ... R2 in WP.4535/2004
R4 in WP.276/2005
5. The Controller of Examinations,
The Tamil Nadu Dr.M.G.R.Medical
University, Chennai,
P.B.No.1200, NO.69, Anna Salai,
Guindy, Chennai-600 032. ... R3 in WP.4535/2004
R5 in WP.276/2005
6. The Commissioner & Director of
Indian Medicine & Homeopathy,
Anna Hospital Campus,
Arumbakkam, Chennai. ... R6 in WP.276/2005
PRAYER in WP.4535 of 2004 : Petition filed under Article 226 of the
Constitution of India praying to issue a writ of mandamus directing
respondents 2 and 3 therein to enroll the following 35 students, viz.,
K.Samraj, B.Vikesh, K.Sivasankari, S.Sharmial Priya, B.Kalpa, A.
Silambarasan, N.Vithya Vani, R.Susila, M.Gnanasundari, E.Suganya, S.
Sharmila, D.Deepa, S.Umadevi, R.Saranya, M.S.Rajmohan, G.Suganya, P.
Arunmozhi, V.Aruljothi, S.Suganya, R.Jeeva Gladys, S.Sathya, S.Jamunarani,
P.Sankarananth, N.Kayalvizhi, S.Hariharan, S.Radha, P.Mangala Sudar,
S.Vengatesan, M.Ananthu, K.Saranya, P.Kanimozhi, K.Shobana, K. Sripriya,
J.Carl Lewis and A.Manjari admitted to the BSMS Course in the Velumailu Siddha
Medical College, Sriperumbudur during the Academic Year 2 003-2004 and pass
such further orders.
PRAYER in WP.276 of 2005 : Petition filed under Article 226 of the
Constitution of India praying to issue a writ of certiorarified mandamus to
call for the records relating to the impugned proceedings of the fourth
respondent in Rc.No.4143/Affln.II(2)/00, dated 08.11.2004, quash the same and
direct the fourth respondent to enroll and register the names of the following
39 students, viz.,1) Kaviarasi, K. 2) Hemalatha, A., 3) Balamurugan, S. 4)
Tamil Selvi, N. 5) Chitra, S. 6) Barakath, J. 7) Uma Maheswari, K. 8)
Kishore, G. 9) Velmurugan, P. 10) Arun Shankar, M. 11) Thiruvarul Kamala
Arumugam P.S. 12) Banurekha, B. 13) Keerthiya, M. 14) Niranjana, N. 15)
P.Santhya 16) E.Sujitha 17) M.Deepa 18) M.Saranya 19) S.Kamalakannan 20)
J.Padmavathi 21) A. Poobathi Pandian 22) R.Rasa Kumar 23) R.Mangaleswaran 24)
D.Beula 25) Teinkle Pon Seenu 26) S.Vinoth Ram Prasad 27) J.Malathi 28)
R.Porchelvi 29) M.Mahalakshmi 30) P.Ranjani 31) R.Ramesh Kumar 32) S.Jaseema
Parveen 33) M.Vignesh 34) M.Balaji 35) R.Parthiban 36) G.Sunil Kumar 37)
T.Valarmathi 38) S.Jansi Rani and 39) M.Swarna admitted to the 1st Year BSMS
Course in Velumailu Siddha Medical College, Sriperumbudur for the Academic
Year 2004-2005 and pass such further orders.
W.P.4535 of 2004:
!For appellant :: Mr.V.Selvaraj
^For respondents :: Mr.V.T.Gopalan, Additional
Solicitor General assisted by
Mr.T.Arunan for R1
Mr.AR.L.Sundaresan for RR2&3
WP.276 of 2005:
For appellant :: Mr.V.Selvaraj
For respondents :: Mr.V.T.Gopalan, Additional
Solicitor General assisted by
Mr.T.Arunan for RR1 and 3
Mr.P.S.Sivashanmugham,
AGP for R2
Mr.AR.L.Sundaresan for RR4&5
:O R D E R
(ORDER OF THE COURT WAS MADE BY THE HONOURABLE THE CHIEF JUSTICE) These petitions by Dharma Medical Research and Charitable Trust ( hereinafter referred as to as the Trust) relate to admissions to its Siddha Medical College at Sriperumbudur in Kancheepuram District. By G.O.Ms.No.24 of the State Government, Health and Family Welfare Department dated 01.02.2000, the Trust was permitted to start the said Siddha Medical College in the name Velumailu Siddha Medical College subject to certain conditions. The number of admission was fixed as 30 students per year. One of the conditions prescribed was to obtain prior approval of the Central Council of Indian Medicine, New Delhi ( hereinafter referred to as the Central Council). The Central Council vide letter dated 31.07.2001 granted approval to the Trust to start BSMS Degree Course from the Academic Year 2001-2002, subject to affiliation from the University and permission of the State Government, and fixed the intake capacity as 30 students. The Tamil Nadu Dr.MGR Medical University, Chennai, the second respondent in W.P.No.4535/04 vide its letter dated 31.08.2001, granted provisional affiliation for the Trust for starting BSMS Degree Course from the Academic Year 2001-200 2 with an intake of 30 students.
2. On 09.05.2002, the Visitors of the Central Council carried out an inspection of the petitioner institution to assess the available facilities for teaching and practical training at the institution and granted permission for conducting BSMS degree course with an intake capacity of 40 students for the Academic Year 2002-2003 vide its letter dated 01.08.2002, and also granted permission subsequently for the Academic Year 2003-2004 vide letter dated 18.7.2003, subject to permission of State Government and affiliation from the University. As against the intake of 40 students, the Trust admitted 35 students during the Academic Year 2002-2003 and 39 students during the Academic Year 2 003-2004. The Tamil Nadu Dr.MGR University refused to register more than 30 students on the ground that the intake capacity fixed by the University was only 30 students. According to the University, as per Statute 57 of the Affiliation of Siddha Medical College Statutes framed by the University, no Siddha Medical College shall apply to the University for increasing the seats until the first batch of students successfully complete the course and leave the college and the BSMS Course of study so obtained is recognised by the Central Council, and after obtaining the full affiliation from the University. As the petitioner institution had not completed the course and also the institution had not applied for grant of full affiliation for BSMS Degree Course, the University sent only 30 enrolment forms to the college for registering the candidates in BSMS Degree course.
3. Aggrieved by the action of the University, the Trust filed W.P. No.4535 of 2004 seeking a Mandamus to direct the University to enroll the students admitted by the Trust. During the pendency of the writ petition, the Indian Medicine Central Council Act, 1970 was amended by Act 52/02, and further amended by Act 58/03. By the Amendment Act, Sections 13A, 13B and 13C were inserted in the Indian Medicine Central Council Act, 1970. Section 13A deals with admission of a new medical college or opening of a new or higher course of study or training and to prescribe that this can be done only with the previous permission of the Central Government obtained in accordance with the provisions of the said section. According to the petitioner that by virtue of the amended provision, the Central Legislation has occupied the entire field and the State Legislation must be treated to have been rendered inoperative and, as a result, the University has no right to fix the intake capacity of a medical college, and the Central Government alone is competent to fix the admission for the institution. It is alleged by the petitioner that though the Central Council fixed and continued the intake capacity of the petitioner institution as 40 students, still the University continued to maintain the intake capacity for the Academic Year 2004-05 as only 30 students and not 40. The petitioner, therefore, filed W.P.No.276 of 2005 seeking to quash the communication of the University dated 8.11.04 and to direct the University to enroll and register the names of the students admitted by the institution for the Academic Year 2004-05.
4. Now the question that arises for consideration is whether the University was right in restricting the intake capacity of the petitioner institution to 30 students, in spite of the fact that the Central Council had accorded intake capacity of 40 students? The further question is what is the role of the University in the matter of establishing medical colleges and fixing the intake capacity? Sub-section (5) of Section 5 of the Medical University Act empowers the University to affiliate colleges to the University as affiliated colleges within the university area under conditions prescribed and withdraw such affiliation. By proviso to sub-section (5) of Section 5 of the Medical University Act, it is provided that no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with. The claim of the University is that by virtue of sub-section (5) of Section 5 of the Medical University Act, the University is empowered to lay down the terms and conditions of the affiliation, and the Statutes framed by the University are binding on the colleges. The said claim is disputed by the Trust on the ground that subsequent to the enactment of the State Act, the Parliament has enacted the Central Act whereby Section 13A has been inserted in the Indian Medicine Central Council Act, 1970, and the said provision deals with establishment of a new medical college or opening of a new or higher course of study or training and prescribes that notwithstanding anything contained in the said Act or any other law for the time being in force, no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of the said Section. According to the Trust, Section 13-A introduced by the amendment Act, would prevail over the provisions of Section 5(5) of the Medical University Act introduced by the State Act as under sub-section (1) of Section 13A only the Central Government has the power to fix the admission capacity in relation to any course of study or training, including the post graduate course of study or training in a medical college.
5. In the instant case, both the State Act and the Central Act have been enacted in exercise of the powers conferred by Entry 25 of List III. Since Parliament and State Legislatures are empowered to make laws on the same subject, the possibility of repugnancy between a law made by Parliament and a law made by a State Legislature under Entry 25 of List III cannot be excluded. Article 254 of the Constitution makes a provision for dealing with such a situation. Article 254 (1) gives overriding effect to the provisions of a law made by Parliament, which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List III and if a law made by the legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the legislature of the State is to be treated as void to the extent of repugnancy. Under Clause (2), the law made by the legislature of a State with respect to one of the matters enumerated in List III will prevail over the provisions of an earlier law made by Parliament or an existing law with respect to that matter if the law made by the legislature of the state has been reserved for consideration by the President and has received his assent. The proviso to clause (2) curtails the ambit of clause (2) by providing that Parliament can enact a law with respect to the same matter on which the State legislature has made the law and by such law Parliament can add to, amend, vary or repeal the law made by the legislature of a State.
6. In Deep Chand v. State of U.P, AIR 1959 SC 648, while dealing with Article 254 of the Constitution, the Supreme Court has held thus: -
"Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:
(1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State legislature; and (3) Whether the law made by Parliament and the law made by the State legislature occupy the same field."
7. It is thus clear that the test of two legislations containing contradictory provisions is not the only criterion of repugnancy. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. Therefore, what has to be seen is whether in enacting Section 13A of the Indian Medicine Central Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of a new College of Indian Medicine in the country.
8. At this stage, it is necessary to notice the provisions of Sections 13A, 13B and 13C inserted in the Indian Medicine Central Council Act, 1970 by the Amendment Act 52 of 2002 and further substituted by the Amendment Act 58 of 2003. Sections 13A, 13B and 13C, as substituted by the Amendment Act 58 of 2003, read as follows:-
"13A. (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, ii. 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 qualifi-cation; or iii. 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.
Explanation 1. - For the purpose of this section, "person" includes any University or a trust, but does not include the Central Government.
Explanation 2. - For the purpose 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 as may be fixed by the Central Government from time to time for being admitted to such course or training.
(2) 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 sub-section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations.
(3) The scheme referred to in sub-section (2), shall be in such form and contain such particulars and be preferred in such manner and accompanied with such fee, as may be prescribed.
(4) On receipt of a scheme from the Central Government under subsection (2), the Central 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 necessary particulars, give a reasonable opportunity to the person or medical 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 Central Council;
(b)consider the scheme, having regard to the factors referred to in sub-section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.
(5) The Central Government may, after considering the scheme and recommendations of the Central Council under sub-section (4) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical college concerned and having regard to the factors referred to in sub-section (8), either approve the scheme with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1);
Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical 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 had been submitted for the first time under sub-section (2).
(6) 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 is communicated by the Central Government to the person or medical college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government requred under sub-section (1) shall also be deemed to have been granted.
(7) In computing the time-limit specified in sub-section (6), the time taken by the person or medical college concerned submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government, shall be excluded.
(8) The Central Council while making its recommendations under clause
(b) of sub-section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub-section (5), 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 Central Council under section 22;
(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, hospital or 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 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 training to students likely to attend such medical college or the course of study or training by persons having recognised medical qualifications;
(f) the requirement of manpower in the field of practice of Indian medicine in the medical colleges;
(g) any other factors as may be prescribed.
(9) 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 medical college concerned.
13B. (1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of Section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act.
(2) Where any medical college opens a new or higher course of study or training including a post-graduate course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this Act.
13C. (1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13A.
(2) If any person or medical college, as the case may be, fails to seek permission under sub-section (1), the provisions of section 13B shall apply, so far as may be, as if permission of the Central Government under section 13A has been refused".
9. Section 13A(1) prescribes that no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of the said section. Similar permission is required for opening a new or higher course of study or training or for increase in the admission capacity in any course of study or training including a post-graduate course of study or training in a medical college. Sub-clause (2) requires that every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit a scheme to the Central Government in accordance with the provisions of sub-section (3), and the Central Government shall refer the scheme to the Central Council for its recommendations. Sub-section (3) provides that the scheme shall be in such form and contain such particulars and be preferred in such manner and accompanied with such fee, as may be prescribed. Sub-sections (4) and (5) prescribe the procedure for dealing with the scheme submitted by the institutions. Sub-section (6) provides that 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 is communicated by the Central Government to the person or medical college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted and, accordingly, the permission of the Central Government required under sub-section (1) shall also be deemed to have been granted. Sub-sections (7) to (9 ) are not material for the purpose of these petitions.
10. It would thus be clear that in enacting Section 13A, Parliament has made a complete and exhaustive provision covering the entire field for establishing a new medical college and for its continuance. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by the Parliament. As per sub-section (1) of Section 13A read with Explanation 2, inserted by the Amendment Act 52 of 2002, the admission capacity has to be fixed by the Central Government from time to time for being admitted to such course or training. Therefore, the University had clearly erred in denying sanction to the petitioner college for the intake of 40 students which has been duly approved by the Central Council.
11. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitabel Trust v. State of TamilNadu, (1996) 3 SCC 15 the Supreme Court considered the provisions of Dr.M.G.R. Medical University Act in the context of the provisions of Section 10-A of the Indian Medicine Council Act, 1956, as inserted by Indian Medicine Council (Amendment) Act, 1993 which are pari materia with the provisions of Section 13A of the Indian Medicine Central Council Act. The Supreme Court held that though Section 5 (5) of the Medical University Act, relates to affiliation of colleges, the proviso inserted therein deals with establishment of a college and imposes a condition that for the purpose of affiliation of a college, permission of the State Government to establish the college is necessary. In other words, the said proviso that has been inserted by the State Act, in pith and substance, is a provision relating to the establishment of a college and merely because it is placed in a provision relating to affiliation of colleges to the University, the said proviso would not cease to be a provision dealing with establishment of a college. However, in Section 10-A, Parliament has made a complete and exhaustive provision covering the entire field for establishing new medical colleges in the country. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by the Parliament. The fact that the State Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the State Act. Although the Central Act does not expressly amend or repeal the State Act but the effect of the non obstante clause in sub-section (1) of Section 10-A which gives overriding effect to the provisions of Section 10-A over anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force, is to render inapplicable, and thereby repeal impliedly, the proviso inserted in sub-section (5) of Section 5 of the Medical University Act, in the matter of establishment of a new medical college in the State of Tamil Nadu and its affiliation by the Medical University.
12. Similar is the view taken by the Supreme Court in Medical Council of India v. State of Karnataka, AIR 1998 SC 2423, where the Supreme Court has held that it is the Medical Council/Dental Council which can prescribe the number of students to be admitted in Medical courses/Dental courses in a medical college or institution. The Supreme Court further held that it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. Universities and the State Government of Karnataka had no authority to allow increase in the number of admissions in the medical colleges in the State. The State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act must therefore give way to the Central Act , namely, the Indian Medical Council Act, 1956. No medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government. Sections 10A, 10B and 1 0C of the Medical Council Act will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act.
13. The law laid down by the Supreme Court with reference to the provisions of the Medical Council Act is squarely applicable to the medical colleges governed by the Indian Medicine Council Act, 1970, and the University clearly exceeded its jurisdiction in insisting that the intake capacity could not be raised without complying with the Statutes framed by the University.
14. Mr.AR.L.Sundaresan, learned counsel appearing for the Tamil Nadu Dr.M.G.R. Medical University, however, raised totally a new contention, which does not find place in the counter affidavit filed by the University, that the sanction of intake capacity by the Central Council is not in accordance with Section 13A and, therefore, the University is not bound to follow such permission granted by the Central Council. The argument of Mr.Sundaresan is that as per Section 13A, substituted by Amendment Act 58 of 2003, the intake capacity has to be fixed by the Central Government and the Central Council had no power to fix the intake capacity and on this ground alone, the sanction granted by the Central Council is vitiated.
15. We find no merit in the submission of the learned counsel Mr. Sundaresan. The intake capacity was sanctioned by the Central Council of the petitioner College vide letter, dated 01.8.2002, which was prior to the introduction of the Amendment Act 58 of 2003 and thereafter the same capacity had been continued. Section 13C inserted by the Amendment Act 58 of 2003 provides that if any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council ( Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13A. The petitioner institution has already submitted a Scheme, as contemplated under Sub-section (2) of Section 13A, to the Central Council and, therefore, the submission that the intake capacity was not properly sanctioned cannot be accepted.
16. In the result, the writ petitions are allowed. The impugned resolution of the University, dated 08.11.2004 is set aside and the University is directed to enroll and register the names of the petitioner s students, subject to the fulfilment of their eligibility conditions, provided they are within the sanctioned intake capacity of 40 students. We make it clear that this order will not preclude the University from carrying on inspection with regard to the infrastructural facilities of the institution for the purpose of continuance of provisional affiliation and for grant of final affiliation and taking appropriate decision in that behalf in accordance with law. Consequently, the connected miscellaneous petitions are closed. No costs.
Js/pv