Karnataka High Court
The Board Of Governors vs Vydehi Institute Of Medical Sciences on 11 September, 2012
Author: Vikramajit Sen
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT APPEAL No.3957/2012 (EDN-REG/P) C/w
WRIT PETITION NO. 27726/2012(EDN)
IN W.A.NO.3957/2012(EDN-REG/P)
BETWEEN
The Board of Governors
In Supersession of Medical Council of India
Through its Secretary
Pocket 14, Sector 8,
Dwarka, Phase-I, New Delhi - 110 077
Repd. by its Secretary .... APPELLANT
(By Sri Zulfikir Kumar Shafi, Advocate.)
AND
1. Vydehi Institute of Medical Sciences
& Research Centre,
# 82, EPIP Area, White Field
Bangalore - 560 066,
Represented by its Principal,
Sri Gurumurthy,
S/o Late C. Siddalingappa,
Aged about 65 years,
R/at Bangalore.
2
2. Union of India,
Rep. by its Secretary,
(Medical Education)
Ministry of Health & Family Welfare
Nirman Bhavan,
New Delhi - 110 011. ... RESPONDENTS
(By Sri Uday Lalith, Sr. Advocate for Sri V. Ranjith Shankar and
Sri Shiji Abrahans Verghes, Advocate for C/R.1;
Sri Unnikrishnan.M, CGC, for R-2)
This writ appeal is filed under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in Writ
Petition 18514 of 2012 dated 12.7.2012.
IN W.P. No.27726/2012 (EDN)
BETWEEN
Vydehi Institute of Medical Sciences
& Research Centre,
# 82, EPIP Area, White Field
Bangalore - 560 066,
Represented by its Principal,
Sri Gurumurthy,
S/o Late C. Siddalingappa,
Aged about 65 years,
R/at Bangalore. : Petitioner
(By Sri M.R. Naik, Sr. Advocate a/w Sri Abhishek Malipatil,
Advocate for M/s. Naik & Naik Law Firm, Avocates)
AND
1. Union of India,
Rep. by its Secretary,
(Medical Education)
Ministry of Health & Family Welfare
Nirman Bhavan,
New Delhi - 110 011.
3
2. Board of Governors in Supersession of
Medical Council of India,
Through its Secretary
Pocket 14, Sector 8,
Dwarka, Phase-I,
New Delhi - 110 077. : Respondents
(By Sri. Unnikrishnan.M, CGC for R-1, Sri Zulfikir Kumar Shafi,
Advocate for R-2)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to declare the impugned
communication dated 3.8.12 as per Annexure-J as illegal and
unsustainable and quash the same by issuance of a writ in the
nature of certiorari.
This Writ Appeal along with the Writ Petition having been
heard and reserved for pronouncement of judgment, this day the
Hon'ble Chief Justice delivered the following:
JUDGMENT
Vikramajit Sen, C.J.
Seats in Medical Colleges are in desperate dearth in our country and this case brings to the fore a lackadaisical response of the Authority which would be expected to act with alacrity. This Appeal filed by the Board of Governors In Supersession of the Medical Council of India [hereafter 'MCI'] is directed against the Order of the learned Single Judge dated 12.07.2012 by which Writ 4 Petition No.18514/2012 filed by the Vydehi Institute of Medical Sciences and Research Centre [Vydehi Institute for brevity] came to be allowed. The learned Single Judge has quashed the order of the MCI dated 13.06.2012 on the subject of Vydehi Institute's application dated 28.09.2011 and letter dated 08.05.2012 seeking increase of MBBS seats from 150 to 250 for the academic year 2012-2013 onwards. The MCI has opined that Vydehi Institute was found not to be eligible for an increase in the intake of MBBS seats as it had "not fulfilled the qualifying criteria i.e. standing of not less than 10 years as prescribed in the amendment Regulation vide Notification dated 17.09.2010".
2. It is necessary for us to spell out the facts in some detail as they are also relevant for deciding Writ Petition No.27726/2012 filed by the Vydehi Institute challenging the aforementioned rejection of their application for increase in the number of MBBS seats. It appears that Srinivasa Trust, established in June 1988, had established the Vydehi Institute in September 2000 as a 300 bed hospital, and was inaugurated by Shri Satya Sai Baba on his birthday. In October 2000 affiliation to Rajiv Gandhi University of Health Sciences ['RGUHS' for short] was sought for with regard to 5 the proposal to commence MBBS course from the academic year 2001-2002. The RGUHS carried out an inspection and predicated thereupon made a recommendation to facilitate the grant of an Essentiality Certificate. In August 2001 an application was filed with the MCI for permission to start the Medical College for the MBBS course with an intake of 100 students. Yet another inspection was carried out in December 2011 in which some deficiencies were noted which were subsequently complied with. Eventually on 08.08.2002, the MCI granted permission to Vydehi Institute to commence the Medical College with an intake capacity of 100 students for academic year 2002-2003. Renewals were regularly granted thereafter and MBBS degree came to be awarded to the first batch students in May 2007. In June 2007 the MCI granted permission for an increase in intake of the students from 100 to 150 students for the academic year 2008-2009.
3. On 17.09.2010 the MCI vide its Notification amended the existing clause (6) of the Regulation as regards "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 6 Study or Training) (Amendment) Regulations, 2010 which then stipulated as follows:-
"6. The maximum number of admissions in MBBS course shall not exceed 250 annually provided that the eligibility criteria for fixing upper ceiling of annual intake to 200/250 admissions annually shall be as under:-
(a) For annual intake capacity of 200
(i) Number of teaching beds not less than 900 with standing of not less than 10 years.
(ii) OPD strength per day not less than 2000
(iii) Bed occupancy : Average not less than 75%
(iv) The hospital must be unitary.
(b) For annual intake capacity of 250
(i) Number of teaching beds not less than 1100
with standing of not less than 10 years.
(ii) OPD strength per day not less than 3000.
(iii) Bed occupancy : Average not less than 75%.
(iv) The hospital must be unitary."
4. We shall also reproduce Section 10-A (3) and (7) of the Indian Medical Council Act, 1956 ['MCI Act' for short] for facility of reference and to adumbrate the conditions postulated by the Statute which reads thus:-7
"10-A. Permission for establishment of new medical college, new course of study -
xxxx (3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may, -
(a) If the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the 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.
xxxx
(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 8 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 postgraduate 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;
9
(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 the students likely to attend such medical college or course of study or training by persons 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."
5. The prayer in the writ petition from which the writ appeal emanates was for a direction to the MCI to carryout an inspection for verification of compliance of the parameters for issuance of permission for increase of MBBS seats, from 150 to 250 for the academic year 2011-2012 under Section 10A of the MCI Act as well as the grant of permission to admit 250 students from the 10 academic year 2012-2013. The contention of the MCI before the learned Single Judge was that any college or institute desirous of increasing its student intake from 150 to 250 should have a standing of 10 years as a teaching college. Vydehi Institute on the contrary successfully contended before the learned Single Judge, and reiterated its arguments before us, that the only logical construction of the above Regulations is that the hospital should have been in existence for a period of 10 years. The learned Single Judge has applied the ratio in S.L. Kapoor Vs. Jagmohan, AIR 1981 SC 136 as well as Kanwar Pal Singh Vs. State of U.P, (2007) 5 SCC 85 which prescribe that if a statute ordains that a particular action must be done in the manner indicated in the statute it must be done in that manner alone. To these citations, the following observations found in the celebrated decision in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 Supreme Court 851 may be added:
" 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning 11 may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
6. The learned Single Judge further noted that although Vydehi Institute had submitted its Scheme on 30.09.2011 no action was taken by the MCI till 13.06.2012 when an inspection was carried out. Despite several reminders addressed to the MCI by the Vydehi Institute including its letter dated 16.02.2012, the MCI failed to take requisite action with regard to inspection of the 12 facilities/infrastructure already made available by the said Vydehi Institute. The learned Single Judge also noted that the MCI neglected to afford an opportunity of hearing to the Vydehi Institute prior to rejecting its application for increase in the intake of students from 150 to 250 for the academic year 2012-2013. The rejection, in limine, despite having received the requisite fee of Rs.4,00,000/- in this regard, and the failure of the MCI to assign reasons for the rejection of the application pertaining to the academic year 2011-2012, while inscrutably stating that the application could not be kept pending was looked upon with disapproval. In other words, the learned Single Judge noted that the MCI had failed to clearly articulate its position that the requisite inspection could be considered only after expiry of 10 years of the existence of the hospital as a teaching institute/college. The following portion of the letter of the MCI dated 05.02.2011 manifests its failure to state the stance subsequently adopted by it, which if spell out would have enabled the Petitioner to assail that interpretation expeditiously in order to avoid the loss of an academic year.
"In view of the above, the Committee decided to recommend the Board of Governor to return the 13 application as disapproval of the scheme for increase of MBBS seats from 150 to 250 at Vydehi Institute of Medical Sciences and Research Centre, Bangalore, as there is no provision in the I.M.C Act, 1956 or regulations framed there under to keep the application pending with the Council for the next academic year".
7. The learned Single Judge also expressed his disapproval on the disparate treatment accorded to the Petitioner as compared to Moulana Azad Medical College, New Delhi which was permitted to increase its intake to the maximum of 250 students even though the pending request for increase of intake capacity was from 180 to
200. The gravamen of the decision in Priyadarshini Dental College Vs. Union of India (2011) 4 SCC 623 was in the context of granting an increase even after expiry of the last date for consideration of the Scheme was held to be permissible in three circumstances viz. (a) where the last date for the admission had not been expired, (b) where the delay in the grant of permission was not attributable to the concerned institution; and (c) where the delay was attributable to the MCI. While quashing the impugned Order dated 13.06.2012, a direction was issued by the learned Single Judge to the Medical Council of India to consider the Petitioner's 14 prayer for an increase in the student's intake for the academic year 2012-2013.
8. During the pendency of the appeal, an opportunity of hearing was thereafter afforded to the petitioner and it was in those circumstances that the fresh order dated 03.08.2012, impugned before us in W.P.No.27726/2012, came to be passed. After narrating the annals of the litigation, the MCI concluded thus, reminiscent of old wine getting better as it grows older as contained in the Gordhandas Bhanji Cask:-
"4. The representative of the College submitted that they were notified of the College not meeting the qualifying criteria of 10 years standing and less number of beds in the casualty ward. It was argued by the representative of the College that pre-requisite for establishment of a Medical College was the existence of a Hospital. This Hospital becomes the Associate Hospital for the Medical College after the Medical College is granted permission. The Medical Council had itself, the representative of the College stressed conducted the inspection in 2001 and granted permission. Further, the State Government had certified that the Hospital was in existence. As 15 regards, their present application for increase from 150 to 250, the representative of the College stated that they were applying for the last two years and maintaining OPD density of 3000. It was difficult to get and retain additional faculty and sustain the consequential expenditure. This they were doing so for the last two years. The representative of the College stated that even if their case is considered from the date of grant of letter of permission, i.e., 08.08.2002, on the coming Monday, i.e., 06.08.2012 their College would complete 10 years of standing. As 30th September was the last date for admission to M.B.B.S course, the representative of the College argued that the judgment of the Hon'ble Supreme Court in Priya Gupta's case would not come in way of grant of permission as in the case of Priyadarshini Dental College matter, the Hon'ble Supreme Court has held that if the Institution was not at fault then the time- schedule could be extended on case specific basis. In view of the foregoing, the representative of the College requested the Board of Governors to grant the College increase in MBBS seats from 150 to 250 from the academic year 2012-2013.16
5. During the course of hearing the representatives of the College were shown the records of the College's application dated 28.09.2011 and 30.09.2011. The Principal of the College affirmed that both the applications were made by their Medical College.
6. The Board of Governors after considering the application, written submissions made by the college and oral submissions are of the opinion that the college has failed to meet the requirements of the provisions of the Indian Medical Council Act, 1956 and the regulations made thereunder and hence the application for the increase in intake capacity from 150 to 250 in Vydehi Institute of Medical Sciences & Research is being disapproved/rejected for the following reasons:
1. Qualifying Criteria
7. Regulation 3.6 of Part-II of the "The Opening of a New or Higher Course of Study or Training (including Post-graduate 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 [hereinafter Opening and 17 Increase Regulations] which, inter alia, provides as under:
"3. QUALIFICATION CRITERIA:-
The medical college/institution shall qualify to apply for increasing the number of admission in MBBS/PG Diploma/Degree/Higher Specialty Course in the existing medical college/institution if the following conditions are fulfilled:-
6. The maximum number of admissions in MBBS course shall not exceed 250 annually provided that the eligibility criteria for fixing upper ceiling of annual intake to 200/250 admissions annually shall be as under:-
...
B. For Annual intake capacity of 250 (i) Number of teaching beds not less than 1100
with the standing of not less than 10 years.
(ii) OPD strength per day not less than 3000.
(iii) Bed occupancy average not less than 75%.
(iv) The hospital must be unitary."
8. The College was granted Letter of Permission for 100 seats on 8th August 2002 for starting of MBBS Course. Accordingly, the college would 18 complete 10 years of standing only after 8th August 2012. The Board of Governors is of the firm opinion that "teaching beds" would come into being only after teaching starts in a Medical College. The teaching in the Medical College would not have commenced prior to the grant of letter of permission. Therefore, Medical College did not fulfill the condition qualifying the applicant for making an application for increase in admission capacity from 150 to 250 without completing 10 years of standing in terms of teaching beds. The Board of Governors has rejected similar applications in the case of D.Y.Patil Medical College, Navi Mumbai and S.B.K.S. Shah Medical College, Vadodara.
Therefore, the application is disapproved on the ground that the Vydehi Institute of Medical Sciences and Research did not fulfill the condition laid down in qualification criteria."
9. Having heard the learned counsel for the parties we are not persuaded to affirm the assailed decision of the MCI. In the first place we must reflect upon the reality that there is a painful paucity of opportunity for medical learning in our country. India needs a manifold increase in the number of Doctors, and the reality 19 is that rural areas are largely bereft of medical assistance and care. While ensuring that medical standards and learning are maintained if not improved upon, it should be the endeavor of all concerned to adopt a proactive and facilitative approach in this field of education. Apart from exemplifying lethargy, the MCI has preferred the path of obstruction rather than guidance to expeditiously reach the destination. As already mentioned above, the Letter of Permission (LOP) was issued to Vydehi Institute on 08.08.2002 and even if the eligibility for clearance in the intake of students from 150 to 250 would have arisen only 10 years thereafter, the MCI could have anticipated that well before the commencement of the coming academic year this period would have elapsed. We say this mindful of fact that the last date for grant of approval/permission was June 2012 in respect of the academic year 2012-2013. Vydehi Institute had clarified in its letter dated 30.09.2011 their position that it had a standing of more than 10 years as it had been functioning since June 2001. If the requirement is for the existence of the Hospital as a teaching college the initial permission would become impossible to grant even for a student strength of 100. We also in perspective the decision of the Supreme Court that admissions to 20 medical colleges must be completed by 30th September of each year, so that every students is enabled and hence mandated to attend the entire medical course of study. The MCI had informed the Vydehi Institute that vis-à-vis the academic year 2012-2013 inspection would be conducted by them before February 2012. On 08.03.2012 Vydehi Institute repeated its request to the Secretary MCI "to carry out inspection to accord permission to admit 250 students for the current academic year 2012-2013" but this request fell on deaf if not obdurate ears. In the meeting of the Board of Governors held on 7-8/05/2012 the Secretary was asked to "bring this issue on file". In its previous meeting held on 28.04.2012, the application of Vydehi Institute was totally ignored. It is unfortunate that the Medical Council of India conducts its affairs and approaches its duties in such a cavalier style, totally oblivious of the pressing need for more Doctors in the country. Inasmuch as no deficiencies have been recorded, MCI has slumbered where it should have sped. It has obstructed where it could have constructed. The following passages from Priyadarshini Dental College & Hospital Vs. Union of India (2011) 4 SCC 623, remove any 21 doubt that may subsist as to the inviolability of time schedules ordained by the Hon'ble Supreme Court -
" 13. It is necessary to refer to certain aspects of grant of permissions to avoid confusion, unnecessary delays and litigation. In Mridul Dhar, this Court primarily dealt with the time schedule for completion of admission process for medical and dental colleges. Mridul Dhar did not provide any time schedule, much less 15th July as the last date, for issue of letters of permissions or renewal of permissions by the Central Government to the dental colleges. Para 28 of the decision in Mridul Dhar referring to a time schedule stipulating 15th July as the last date for issue of letters of permission by the Central Government does not relate to dental colleges nor to permissions/renewal of permissions to dental colleges. The said time schedule is not even a direction of this Court, but is only an extract from the Medical Council of India Establishment of Medical College Regulations, 1999 applicable only to medical colleges.22
14. This Court in Mridul Dhar however clearly directed that the Central Government should strictly adhere to the time schedule wherever provided for. This Court stated: (SCC pp. 83-84, para 32) "32. Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State and Central both, MCI/DCI, colleges--new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible."
10. In W.P.No.18514/2012 in which the impugned Order dated 12.07.2012 came to be passed which is the subject matter of Writ Appeal No.3957/2012 the learned Single Judge passed interim orders on 12.06.2012 directing the MCI to consider the 23 Petitioner's Scheme as expeditiously as possible and in any case within an outer limit of three weeks. In the event however, the MCI took the extracted decision on the very next date, obviously without affording an opportunity of hearing to the Petitioner.
"With reference to your application dated 28/09/2011 and letter dated 08/05/2012 noted above, this is to inform you that the application for increase of MBBS seats from 150 to 250 was considered by the Board of Governors and observed that the college is not eligible for increase of MBBS seats from 150 to 250, as the college has not fulfilled the qualifying criteria i.e. standing of not less than 10 years as prescribed in the amendment Regulation vide Notification dated 17/09/2010 and the college is permitted for increase of seats i.e. from 100 to 150 but is not yet recognized against the increased intake i.e. from 100 to 150 seats."
In the hearing held on 12.07.2012, the learned Single Judge quashed the aforementioned Order dated 13.06.2012 and directed the MCI to consider the Petitioner's scheme for M.B.B.S. Course after affording an opportunity of hearing and further directed to 24 complete the process before 23.07.2012. This time around an inspection was carried on 23rd and 24th July 2012 and a personal hearing was given on 02.08.2012 followed by passing of the impugned Order 03.08.2012 the relevant paragraphs 4 to 8 are already reproduced by us, which is the subject matter of the Writ Petition No. 27726/2012.
11. In the conspectus of the facts narrated above, we are in complete agreement with the learned Single Judge that the Petitioner- Vydehi Institute of Medical Sciences and Research Centre possess all the requisite conditions/criterion for being accorded permission to increase its students intake for M.B.B.S., course for the academic year 2012-2013, since it has been in existence for 10 years; further more even if the interpretation of the MCI is correct, there is no legal impediment in its adopting a positive attitude by granting permission for the current academic year keeping in perspective the fact that from the inception and its commencement, the Petitioner would have been in existence, even as a teaching college for a period of 10 years. There is no justification whatsoever for the lethargic manner in which the Medical Council of India carried the inspection of the petitioner's 25 facility with the purpose of answering availability of necessary facilities, faculty and other criteria/paraphernalia. The Writ Appeal No.3957/2012 is accordingly dismissed. The Writ Petition No.27726/2012 is allowed directing the Medical Council of India to forthwith grant permission to the Petitioner - Vydehi Institute of Medical Sciences and Research Centre to increase its intake of students for M.B.B.S. course up to 250 even for the current academic year 2012-2013. Expedition is the need of the hour since these concurrent decisions can be implemented in the ordinary course as counseling is still current. We pass no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr