Bombay High Court
Padmashree Dr.D.Y.Patil vs Union Of India & Ors on 19 July, 2012
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, R.D.Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.5817 OF 2012
Padmashree Dr.D.Y.Patil
Medical College, Navi Mumbai. ...Petitioner.
Vs.
Union of India & Ors. ...Respondents.
....
Mr.Vikas Singh, Senior Advocate with Mr.Samir A.Vaidya and
Ms.Nandadevi Deka for the Petitioner.
Mrs.Neeta Masurkar for Respondent No.1.
Mr.Ganesh K.Gole for Respondent No.2.
Mr.Sandeep K.Shinde, G.P. with Mr.Prashant B.Darandale, AGP for
Respondent No.3.
.....
CORAM : DR.D.Y.CHANDRACHUD AND
R.D.DHANUKA, JJ.
July 19, 2012.
JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
The Petitioner has challenged a decision of the Board of Governors of the Medical Council of India, rejecting an application seeking an increase in the seats for the M.B.B.S. degree course from 150 to 250 for Academic Year 2012-13. The Petitioner has been conferred with the status of a deemed University. On 23 November 2010, the Petitioner filed an application seeking an increase in the ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 2/17 wp5817.12-rev intake capacity from 150 to 250 for Academic Year 2011-12. The application was rejected by the Board of Governors of the Medical Council of India on the ground that the Petitioner had failed to enclose the Essentiality Certificate and affiliation with the application.
2. On 29 March 2011, the Petitioner received an Essentiality Certificate from the Government of Maharashtra recording that: (i) The institute has 1250 teaching beds; (ii) The average OPD strength per day is 1878; and that (iii) In case the applicant failed to create infrastructure for the course as per MCI norms and fresh admissions were stopped by the Central Government, the State Government "may think over" taking over the responsibility of the students already admitted to the course at the college with the permission of the Central Government. On 27 April 2011, the Board of Governors of the Medical Council of India reiterated the earlier decision to reject the application for Academic Year 2011-
12.
3. On 11 August 2011, the Petitioner moved an application ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 3/17 wp5817.12-rev for an increase in the intake capacity from 150 to 250 students for Academic Year 2012-13. On 17 February 2012, the Petitioner was informed that the application had been rejected by the Board of Governors at a meeting held on 12 December 2011. Two reasons were set forth for rejecting the application. Firstly, it was stated that the Essentiality Certificate issued by the State Government on 29 March 2011 stated that the average OPD strength per day was 1878. The statutory regulations, 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 a Postgraduate course of Study or Training) Regulations, 2000 stipulate that for increasing the intake capacity to 250 students, the OPD strength per day should not be less than 3000. Secondly, the format prescribed for the Essentiality Certificate by the Regulations requires the State Government to certify that in case an applicant fails to create infrastructure for a Medical College in accordance with MCI norms and if 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 ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 4/17 wp5817.12-rev the Central Government. However, the Essentiality Certificate issued by the State Government on 29 March 2011 stated that in such an eventuality "the State Government may think to take over the responsibility of the students already admitted in the College".
On 21 February 2012, the Petitioner addressed a communication to the Board of Governors of the Medical Council of India stating that between 1 January 2011 and 20 February 2012, the average daily OPD attendance was 3127. By a letter dated 22 February 2012, the Petitioner stated that the institution should not be held responsible for discrepancies in the Essentiality Certificate issued by the Government of Maharashtra. On 6 March 2012, the Petitioner addressed a communication to the Union Minster for Health and Family Welfare, stating that the State Government had on 29 February 2012 made necessary changes in the Essentiality Certificate and on this ground sought a reconsideration of the decision by the Board of Governors. A corrigendum had been issued by the State Government on 29 February 2012, rectifying the format of the Essentiality Certificate in terms of the Regulations and by correcting the OPD strength to 3127. On 21 May 2012, the Board of Governors of the Medical Council of India issued a ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 5/17 wp5817.12-rev communication stating that the earlier decision taken by the Council and communicated on 17 February 2012 would stand.
4. These proceedings have been instituted to challenge the rejection of the application filed by the Petitioner for an increase in the intake capacity for Academic Year 2012-13.
5. An affidavit in reply has been filed on behalf of the Second Respondent. Since pleadings are complete, the Petition has been taken up for hearing and final disposal by consent.
6. Section 10A of the Indian Medical Council Act, 1956, in so far as it is material, provides as follows:
"10A. Permission for establishment of new medical college, new course of study.-
(1) Notwithstanding anything contained in this Court or any other law for the time being in force:-
(a) ................................................................;
or
(b) no medical college shall:-
(i) ..............................................................; or ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 6/17 wp5817.12-rev
-(ii) increase its admission capacity in any course of study or training (including a postgraduate course in accordance with the provisions of this section.
...
(2) (a) Every person or medical college shall, for purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.
(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed."
7. By an Amending Act of 2010, Section 3B was incorporated into the Act and in so far as it is material, clause (b) provides as follows:
"(b) The Board of Governors shall-
(i) Exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references to the Board of Governors;
(ii) Grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in section 10A or giving the person or college concerned a reasonable ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 7/17 wp5817.12-rev opportunity of being heard as provided under section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and
(iii) Dispose of the matters pending with the Central Government under Section 10A upon receipt of the same from it."
After the amendment of 2010, the Board of Governors is vested with the power to entertain applications for establishment of new medical colleges, the opening of a new or higher course of study or training or increase in admission capacity in any course of study referred to in Section 10A of the Act. An existing Medical College seeking to increase its admission capacity can do so with the permission of the Board of Governors and is required to submit an application in accordance with the scheme framed under Section 10A(2)(a) and (b). The Medical Council of India has framed the Establishment of Medical College Regulation, 1999 and 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.
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8. Part II of the Regulations of 2000 lays down qualification criteria for increase in admission capacity and is as follows:
"3. Qualification criteria :
The medical college/Institution shall qualify to apply for increasing the number of admissions in MBBS/PG Diploma/Degree/Higher Specialty Course in the existing medical college/institution if the following conditions are fulfilled."
The conditions are thereupon set out.
9. Clause 3.2 of Part II stipulates the requirement of obtaining an Essentiality Certificate from the State Government in the prescribed format and is as follows:
"3.2 That the Essentiality Certificate in the prescribed format regarding no objection of the State Government/Union Territory administration for opening of 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 Post graduate Course of Study or Training) in the medical college/institution and availability of the adequate clinical material as per the Council Regulations have been obtained by the applicant from the concerned State Government/Union Territory administration, as the case may be."::: Downloaded on - 09/06/2013 18:50:08 :::
VBC 9/17 wp5817.12-rev Clause (6) prescribes the requirement in regard to the OPD strength per day. For seeking an enhancement of the admission capacity to 250 students the required OPD attendance is 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:-
...
2. 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."
In view of the decision of the Supreme Court in K.S.Bhoir vs. State of Maharashtra,1 it is well settled that the Regulations lay down the eligibility criteria to be complied with for making an application. The Regulations also lay down the requirements which are to be complied with when a medical college applies for increase in its admission capacity. The requirement of obtaining of 1 (2001) 10 SCC 264 ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 10/17 wp5817.12-rev an Essentiality Certificate from the State Government has been held by the Supreme Court to be a mandatory condition. (State of Maharashtra vs. Indian Medical Association,2 and Islamic Academy of Education vs. State of Karnataka.3) Following this principle, the Supreme Court held in Dental Council of India vs. S.R.M Institute of Science and Technology,4 that an Essentiality Certificate is mandatory and an application will not be complete unless it is accompanied by the permission or Essentiality Certificate of the State Government. An incomplete application cannot be processed by the Central Government or by the Council.
10. In the present case, the Petitioner could not have been ignorant of the requirement of obtaining an Essentiality Certificate in the prescribed form and of the requirement that in order to qualify for an enhancement of the admission capacity to 250 students, among other conditions, an average OPD attendance of 3000 per day was required. No applicant can claim ignorance of the provisions contained in the Regulations. The Petitioner had, in 2 (2002) 1 SCC 589 3 (2003) 6 SCC 697 4 (2004) 9 SCC 676 ::: Downloaded on - 09/06/2013 18:50:08 ::: VBC 11/17 wp5817.12-rev fact, moved an earlier Petition before this Court 5 in which by an order dated 8 August 2011, a Division Bench of this Court had declined to grant a mandatory interim order directing the Medical Council to allow an increase in the number of seats from 150 to
250. The Division Bench observed that the number of OPD patients was less than 3000 and did not comply with the norms specified in Clause 6 of the Regulations. The Essentiality Certificate which was produced by the Petitioner ex facie failed to meet the requirement of the Regulations on two counts. Firstly, the average OPD attendance as stated in the Certificate was 1878, much below the norm of 3000. Secondly, the Essentiality Certificate was not in accordance with the prescribed format. The State Government had not in the certificate which it issued on 29 March 2011 accepted an unconditional obligation to take over the responsibility of the students admitted in the event that the Petitioner failed to create infrastructure for the course in accordance with MCI norms and in the event that fresh admissions were stopped by the Central Government. The application for Academic Year 2012-13 was based on the Essentiality Certificate dated 29 March 2011. Ex-
5 Writ Petition 343 of 2011
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facie, the application filed by the Petitioner failed to fulfill mandatory conditions prescribed by the Regulations. Such an application could not have been entertained by the Board of Governors of the Medical Council of India.
11. Now, it must be noted that a schedule has been prescribed for the receipt and processing of such applications. The Supreme Court has repeatedly emphasized the sanctity of the time schedule prescribed. The Supreme Court has cautioned both the authorities against deviating from the laid down schedules and the High Courts from relaxing those schedules. The last date for the receipt of the scheme was 30 September 2011 for Academic Year 2012-13. The original application that was submitted by the Petitioner was clearly incomplete and deficient in failing to comply with the mandatory norms provided for in the Regulations. On 29 February 2012, the Petitioner sought to rectify the deficiencies in the application upon the State Government issuing a corrigendum accepting the responsibility of the students in the event that the Petitioner failed to create infrastructure resulting in a stoppage of admission and by stating that the average OPD strength is 3127.
::: Downloaded on - 09/06/2013 18:50:09 :::VBC 13/17 wp5817.12-rev This was much after the scheduled date for the submission of a complete application and could not have been entertained for Academic Year 2012-13. Moreover, it is significant to note that the recomputed average daily OPD attendance of 3127 was for the period between January 2011 to 20 February 2012 (as evident from the Petitioner's letter dated 21 February 2012 to the Board of Governors) and hence, covered a period even after the submission of the application on 11 August 2011 for an enhancement of the admission capacity. Be that as it may, an applicant in the position of the Petitioner is duty bound to ensure that the application which is submitted to the Central Government or, now as the case may be, to the Board of Governors, complies with the mandatory requirements contained in the regulations. By failing to do so by the scheduled date, the Petitioner has only itself to blame for not being allowed to enhance its admission capacity to 250 students for Academic Year 2012-13. In this regard, having regard to the time lines which have been prescribed by the Medical Council, we are of the view that the exercise of the writ jurisdiction under Article 226 of the Constitution would not be appropriate or proper.
The time schedules are prescribed by an expert body after due ::: Downloaded on - 09/06/2013 18:50:09 ::: VBC 14/17 wp5817.12-rev deliberation and thought. They are not meaningless formalities.
Their sanctity has to be preserved and recourse to the writ jurisdiction cannot be permitted to obviate compliance with such requirements. Discipline has an important value in life and institutional discipline in medical education is no exception. The writ jurisdiction must be an instrument of inculcating a sense of discipline in governance and not for obviating compliance with norms formulated by experts.
12. In a recent judgment of the Supreme Court in Priya Gupta vs. State of Chhatisgarh,6 the Supreme Court has cautioned against relaxations being granted by the High Courts in respect of the prescribed time schedule, with a view to suit the convenience of the institution:
"Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and 6 Civil Appeal 4318 of 2012 decided on 8 May 2012 ::: Downloaded on - 09/06/2013 18:50:09 ::: VBC 15/17 wp5817.12-rev cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above stated principles."
This principle has been laid down after revisiting the earlier decisions which emphasize the need to observe time schedules in the interest of medical education.
13. Counsel appearing on behalf of the Petitioner sought to submit that the grant of an Essentiality Certificate lies within the domain of the State Government and the applicant cannot be faulted if the State Government failed to provide a certificate in the prescribed format. The point, however, is that if the certificate that was originally provided by the State Government did not meet the mandatory requirements of the Regulations, it was the duty of the Petitioner to take up the matter with the State Government so as to ensure that the Regulations are fulfilled. The Petitioner cannot be heard to argue that it overlooked the deficiency in the Essentiality Certificate originally submitted on 29 March 2011. The Petitioner has made a grievance of the fact that though the Board of Governors rejected the application at a meeting held on 12 ::: Downloaded on - 09/06/2013 18:50:09 ::: VBC 16/17 wp5817.12-rev December 2011, a formal communication was issued to the Petitioner only on 17 February 2012. Counsel for the MCI submits that there was no deliberate attempt to delay the communication and the communication was issued after the minutes of the meeting were finalised. Counsel for the Petitioner submitted that an opportunity ought to have been given to the Petitioner of being heard so that it could have rectified the deficiency. Now, it is important to note that this is not a case where a scheme is rejected on the ground that it is deficient within the meaning of Section 10A(4). In the present case, the application filed by the Petitioner did not fulfill the essential conditions laid down in the qualification criteria for submitting an application. In these circumstances, the application was liable to be rejected at the threshold.
14. For Academic Year 2012-13, the last date for the grant of permissions was extended with the permission of the Central Government, to 30 June 2012. Even that period has now expired.
The exercise of the writ jurisdiction under Article 226 of the Constitution would, therefore, not be warranted. Counsel appearing on behalf of the Petitioner has sought to place reliance ::: Downloaded on - 09/06/2013 18:50:09 ::: VBC 17/17 wp5817.12-rev on an interim order passed by a Division Bench of the Delhi High Court in Chhatrapati Shivaji Education Society vs. Medical Council of India.7 In the present case, we have been unable to accept the contention of the Petitioner at the final disposal of these proceedings.
15. The Petition shall accordingly stand dismissed. There shall be no order as to costs.
( Dr.D.Y.Chandrachud, J.) ( R.D. Dhanuka, J. ) 7 LPA 544 of 2011 ::: Downloaded on - 09/06/2013 18:50:09 :::