Y. Bhaskar Rao, C.J.
1. The Medical Council of India (hereinafter, for short, 'MCI') has filed this appeal assailing the judgment of the learned Single Judge disposing of the writ petition filed by respondent 1-college with certain directions.
2. The brief facts of the case are that respondent 1-college was started in the year 1963-64. In the year 1985-86 the college had increased the seats up to 130 and the same was approved by the MCI. Thereafterwards, up to 1-6-1992 the seats in the college were increased from 130 to 175 and 175 to 195. The college had applied for approval of the said 195 seats to the MCI. An inspection was made on behalf of the MCI regarding the infrastructure of the college and they had suggested for remedying the defects pointed out by them, by upgrading the standards according to the norms provided by the MCI. Thereafter, further inspections were made and the Inspectors of the MCI inspected the college and gave the report, stating that the college has got all the required facilities to have the admission capacity of 200 students in I year Medicine. Thereafter, again, another inspection was conducted on 18-7-1996 and second report was submitted basing on the earlier report made by the Inspectors and recommendation was made to the MCI for approval of 200 seats in the college. The said reports were placed before the Executive Committee of the MCI. The Executive Committee considered the said reports and recommended for approval of 200 seats. Thereafter, it was placed before the General Council of the MCI on 25-9-1996. The General Council did not oppose the approval of 200 seats. In the meanwhile, writ petition was filed in the High Court by the Medical Colleges in the State of Karnataka including respondent 1 and a learned Single Judge of this Court held that after incorporation of Sections 10-A, 10B and 10-C of the (Indian) Medical Council Act, 1956 (for short, the Act) and the relevant regulations framed in pursuance of the said incorporation, even though the college which is established earlier to 1992 has increased the seats i.e., prior to incorporation of Sections 10-A, 10-B and 10-C, neither the State Government nor the University concerned has got any power to approve the increase of the seats in Medical Colleges or to grant permission for establishment of Medical Colleges and held against the Medical Colleges. The said judgment is reported in A Citizen of India v State of Karnataka and Others . Appeals were filed before the Division Bench and the Division Bench has allowed the appeals and set aside the judgment of the learned Single Judge and directed the respondent 1-college to file a petition before the MCI for approval. Accordingly the appellant filed a petition before the MCI. The MCI considered the said petition and recommended approval of only 150 seats instead of 200 seats which were recommended for approval earlier by the Executive Committee and General Council of MCI. On this recommendation, the Central Government has passed an order rejecting the request approval of for 200 seats and approved only 150 seats. That is challenged in the present writ petition by respondent 1-college.
3. It is contended by respondent 1 before the learned Single Judge that the MCI as well as Central Government has not taken into consideration the two reports submitted by the Inspectors and other committees sent by the MCI, who inspected and gave positive reports to the effect that the college has got sufficient infrastructure as per the normsof MCI and recommended for approval of 200 seats, and therefore the approval of only 150 seats shows non-application of mind on the part of the MCI and the Central Government to the said reports. Hence, it was prayed that the later report of the MCI, Annexure-P and endorsement of the Central Government at Annexure-V require to be quashed and the writ petition has to be allowed.
4. On the other hand, MCI contended that after the Act came into force in the year 1956, regulations were framed under the Act along with the amendments from time to time including the incorporation of Sections 10-A, 10-B and 10-C. Such regulations framed in 1993 by virtue of the power under Section 33 of the Act provided that except MCI, none has got power to permit establishment of college or to increase the seats .or to add any course in the Medical Colleges throughout India. The MCI after taking into consideration the requirements and the standards of the institutions and their infrastructure and earlier malpractices and irregularities leading to a fall down in the medical education, has fixed the maximum intake capacity of 150 students. Therefore, the recommendation made by the MCI for 150 seats and acceptance of the same by the Central Government even though earlier reports recommended for 200 seats, is not illegal or bad but it is in accordance with the provisions of the Act and regulations framed thereunder.
5. The learned Single Judge after considering the rival contentions, quashed Annexure-P-recommendation made by MCI in relation to the respondent 1-institution and consequent endorsement at Annexure-V of the Central Government on the ground that when the MCI had earlier recommended twice to the effect that there is sufficient infrastructure in the college for approval of two hundred seats, the later decision and recommendation are the result of non-application of mind and gave a direction to the appellant-MCI to decide afresh the intake capacity of respondent 1-college and directed the Union of India to pass appropriate orders on the basis of the recommendation of the appellant for approval of 200 seats and to complete the whole exercise within six weeks from the date of the order. The learned Single Judge further held that the directions are issued only in view of the interim orders of the Supreme Court as per Annexure-R2.
6. Assailing the said order, the MCI has filed the present appeal.
7. The learned Counsel for the appellant contended that the directions of the learned Single Judge are against the provisions of the Act and regulations framed thereunder, which provide the maximum of only 150 seats for any college. Therefore, any recommendation made for increase of the seats over and above 150 will not deserve any consideration, even though a particular college may have sufficient infrastructure as it will amount to doing a thing beyond the scope of regulations.
8. On the other hand, the learned Counsel appearing for respondent 1 contended that the provisions of the Act and regulations must be read in consonance with the scheme of the Act. Earlier to incorporation of Sections 10-A, 10-B, and 10-C, the Universities and the State Government has permitted to increase the seats from 130 to 195 from 1982 unitl1-6-1992 and the college was admitting the students and number of students have passed out of the college and qualified as Doctors. The MCI made inspections and suggested the improvements and to remedy the defects to increase admission capacity up to 200 and accordingly by spending crores of rupees the institution has improved the infrastructure. Thereafter, again, inspections were made and recommendation was made for approval of 200 seats after the MCI was satisfied about the infrastructure. Further, the Executive Committee and General Council of MCI also recommended for increase in the number of seats. The MCI without considering these earlier reports, sent a fresh report at Annexure-P recommending for only 150 seats and the Central Government passed an order approving 150 seats which is against their own earlier recommendations and against the provisions of the Act and the regulations.
9. To appreciate the above contentions, it is apposite to extract the relevant provisions of the Act and the scheme of regulations:
In A Citizen of India's, case, supra, this Court has held:
'53. A bare reading of Section 10-A(1)(b)(ii) as also Section 10-B(3) clearly shows that no Medical College can increase its admission capacity in any course of study and training except with the previous permission of the Central Government obtained in accordance with the provisions of sub-sections (2) to (8) of Section 10-A.
54. Now turning to the object of the Central Amendment Act of 1993 and the provisions contained in Section 10-A(1) thereof, it becomes more than evident that the Parliament has simultaneously taken over three more aspects of medical education in its fold with effect from 1-6-1992 completely denuding the State Legislature to have any authority in respect of those. These are-
(i) Establishment of new medical colleges,
(ii) Opening of new or higher course of study or training in medical colleges established before 1-6-1992, and
(iii) Increase in admission capacity of medical colleges established before 1-6-1992.
55. In the present proceedings we are concerned with the third aspect as noticed above. The Supreme Court in the case of 'Thirumurga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust, supra, while dealing with the establishment aspect of new medical colleges has held that:
'It would thus appear that in Section 10-A Parliament has made a complete and exhaustive provision covering the entire field for establishing of 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 lawmade by Parliament. Applying the tests laid down by this Court, it must be held that the proviso to sub-section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college is repugnant to Section 10-A inserted in the Indian Medical Council Act, 1956, by the Central Act which prescribed the conditions for establishing a new Medical College in the country. The said repugnancy is, however, confined to the field covered by Section 10-A, viz., establishment of a new Medical College and would not extend to establishment of other colleges'. 56. As the Supreme Court has already declared the law in respect of the first aspect viz., the establishment of new Medical Colleges, in my opinion, the second and third aspects noticed above have also to be held as covered by the law so declared since all the three aspects are the part of the same Parliamentary scheme and are subjected to the same constitutional limitations.
57. Now coming specifically to the 'increase in admission capacity', even at the cost, of repetition it has to be noted that under Section 10-A(1)(b)(ii) it has been declared by the Parliament in mandatory, unequivocal and express terms that notwithstanding anything contained in the Central Act or any other law, which will definitely include the State laws, for the time being in force, no medical college shall increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provision of the said section.
58. The language of Section 10-A(1) admits of no ambiguity and therefore no rule of interpretation needs to be employed to ascertain its true meaning. With due respect to the learned Advocate General, who has made all endeavours with all his ingenuity and legal talents, to impress that the mandate contained in Section 10-A(1)(b)(ii) will apply only to the colleges which have been established after 1-6-1992 and the competence or authority to regulate and or to fix the admission capacities of the medical colleges situated in the State of Karnataka which had been established prior to 1-6-1992 will lie exclusively with the State Government, keeping in view the provisions of Section 4 of State Capitation Fee Act and Section 53(10) of the State Universities Act. But I find myself unable to agree with the said proposition. I have no hesitation in holding that after incorporation of Section 10-A in the Central Act the provisions of the State Acts to the extent these are inconsistent with the Central Act, have become void and inoperative, thereby completely stripping off the powers of the State Government and the Universities in respect of all the three aspects as noticed above.
59. Having so held, the next question to be considered is that keeping in view the object of incorporating Sections 10-A, 10-B and 10C in the Central Act and the language employed therein, what has to be the true connotation of the expression 'increase its admission capacity'.
60. According to the New Lexicon Webster Dictionary, the word 'increase' means to become greater in size, amount, number, value, degree etc. According to the Random House Dictionary, the said term means to make greater in any respect, etc. According to Black's Law Dictionary, it means enlargement, increment, addition etc. Therefore, for ascertaining whether the admission capacity of any college is deemed to have been increased for the purpose of Section 10-A of the Central Act, there has to be a benchmark of admission capacity i.e., the standard thereof with which the increase therein can be compared with.
61. Now the material and the crucial question is as to whether the admission capacity of a Medical College as fixed on or before 1-6-1992 by the State Government will form the benchmark for finding out the increase therein for the purpose of applying the regulatory provisions contained in Section 10-A of the Central Act or the admission capacities fixed by the Council, with reference to the minimum standard of medical education prescribed under Section 19A of the said Act, will form the benchmark for the said purpose.
62. In my opinion, the Parliament having fully delved into the said aspect, has very clearly provided that it is the admission capacity which has been fixed by the Council, will form the benchmark for the purpose of Section 10-A of the Central Act. It is so because of the Explanation 2 to Section 10-A(1) of the said Act which provided that for the purpose of the said section 'Admission capacity' means the maximum number of students that may be fixed by the Council from time to time for being admitted to the Medical Course in a given college. The Parliament has not given any credence to the admission capacities or intakes fixed by any State Government or the Universities which was for the obvious reasons, as noticed in the statement of objects and reasons of the amendment, namely, that the State Governments were not adhering to the requirements of maintaining even the minimum standard of medical education while fixing the admission capacities and were working under various pressures. Therefore, it has to be conclusively held that it is admission capacity which is fixed by the Council from time to time will form the benchmark for determining any increase therein for the purpose of Section 10-A(1) requiring previous permission from the Central Government and any violation thereof will visit the consequences envisaged under Section 10-B(3) of the Central Act.
63. The next question is whether the admission capacity of a Medical College determined by the Council in the 2nd Explanationto Section 10-A(1) is one time exercise or it can be so done from time to time i.e., more than once. In the aforesaid explanation the Parliament has expressly used phrase 'time to time'. It is a well-settled rule of statutory construction that 'in the interpretation of statutes the Court always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.' (See J.K. Cotton Mills). It appears to me that the power to determine admission capacity from time to time has been advisedly provided in the 2nd Explanation to Section 10-A(1) and is well thought of measure to ensure maintenance of minimum standards by the Medical Colleges. It is for the reason that under the Scheme of the Central Act, the power to inspect and supervise the maintenance of minimum standards has been conferred only on the Council. There is no such power with any other authority including the Central Government. Therefore, even after the grant of permission by the Central Government to increase the admission capacity, if subsequently the Council, pursuant to inspection and/or other relevant materials on records resolves that the infrastructure in college has fallen short of the required minimum standards entitling it to maintain the approved level of admission capacity, then the college cannot be permitted to admit students beyond that level unless it undertakes the statutory process contemplated under Section 10-A(1) seeking approval of the Central Government for increasing its admission level. This inbuilt legislative mechanism of constant vigil and overseeing the infrastructural requirements expected of the Medical Colleges is salutary and is aptly befitting to the object of the Act. It also ensures that the discretion in the matters of determining the admission capacities is not concentrated in any one authority thereby which minimises the chances of abuses in this regard.
64. The last question which had cropped up in this context of Explanation II to Section 10-A is as to whether the Council can fix the admission capacity as the benchmark for activating the provisions of Section 10-A(1)(b)(ii) of the Central Act on the basis of the inspections conducted prior to 1-6-1992.
In my opinion, 'yes'. The reasons are various.
65. Firstly, the Council resolves to fix the admission capacity of a Medical College on the basis of the report of its Inspectors and visitors and if subsequent to such inspection no claim is laid by the college concerned before the Council that it has improved its infrastructure to have higher admission capacity, Council can always presume and resolve that the infrastructure of the college has remained unaltered since the date of last inspection, irrespective of the fact as to when it was conducted.
66. Secondly, it is matter of record that the resolutions passed by the Council determining the admission capacities of the colleges have always been duly communicated to the colleges aswell as the affiliating Universities, providing ample opportunities to them to seek a review thereof by the Council itself by placing relevant materials or challenge the same before the appropriate judicial forum. But if the colleges choose to accept the same, expressly or impliedly, they can be permitted to avoid the legal consequences thereof of praying before this Court to assess their infrastructure in the writ jurisdiction. In my opinion, in such situations, their remedy lies only under Section 10-A of the Central Act by way of filling the statutory Scheme.
67. In the present case, each of the medical colleges in the State was informed of their admission capacity as fixed by the Council as is evident from the communication dated 21-11-1994 quoted in extenso in para 8 herein except to report No. 4, which was separately communicated of its admission capacity under Council's letter dated 13-9-1994 based on Inspector's report of November, 1993.
68. Having answered the principal question, now keeping in view the discussions made at the Bar in respect of certain material ancillary issues arising in the context of the Central Act, I feel it necessary to discuss and express myself on those issues as well, since they have material bearing on day to day administration and maintenance of medical education. These issues are:
(i) Whether regulations framed under the Central Act are mandatory or only recommendatory.
(ii) What are the respective functions and powers of the Council and Central and State Governments under the Central Act.
(iii) Whether the Government, both Central or State, can exercise executive powers in relation to any aspect of medical education.
(iv) What concepts the expression 'admission capacity', 'eligibility for seeking admission' and 'the regulation of the process of admission' bear in context of Education Law.
(v) What are the powers of the High Court under Article 226 of the Constitution in case of admissions made in excess of permissible intake.
(vi) Whether the High Court, under its jurisdiction, can invoke judicial sympathy to approve or regularise excess or illegal admissions.
(vii) How the law's delay plays wonders in education matters.
Regulations: Mandatory or recommendatory
69. Sections 19A and 33 of the Central Act provides for making of regulations by the Council. These sections, to the extent those are material for the present purposes, are being quoted hereunder:
'Section 19A. Minimum standards of medical education.--(1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than postgraduate medical qualifications) by Universities or Medical Institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of copies aforesaid.
(3)....'.
'Section 33. Power to make regulations.--The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for-
(a).....
(fa) The form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of Section 10-A;
(fb) any other factors under clause (g) of sub-section (7) of Section 10-A;
(fc) the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section (3) of Section 10B'.
(g).....
(h).....
(i).....
(j) The courses and period of study and of practical training to be undertaken, the subjects of the examination and the standards of proficiency therein to be obtained, in Universities or Medical Institutions for grant of recognised medical qualifications;
(k) the standards of staff, equipment, accommodation, training and other facilities for medical education'.
70. Pursuant to the powers conferred under Sections 19A and 33 of the Central Act, the Council has framed the following regulations material for the present purposes, namely.-
(i) minimum standard requirement for a medical college for 100 admissions annually, (approved as regulations by the Central Government on 3-11-1977)
(ii) minimum recommendations on undergraduate medical qualifications, (approved as regulations by Central Government on 30-11-1977)
(iii) establishment of new medical colleges, opening of higher courses of study and increase of admission capacity in Medical Colleges Regulation, 1993.
(enforced from 29-9-1993)
71. The regulation prescribing minimum standard of medical education is directly referable to Section 19A read with Section 33(k) of the Central Act and any violation thereof has to result in the penalty of withdrawal of recognition of medical qualification granted to a student of the college or institution concerned which do not conform to standards so prescribed under and in accordance with provisions of Section 19A of the Central Act. Therefore, the said regulation is clearly mandatory in nature and not merely recommendatory as was sought to be suggested by some of learned Counsel appearing for the managements.
72. So far as the Regulations of 1977 is concerned, the Regulation I thereof prescribes the conditions or qualifications for admission into Medical Courses. But, Regulation II thereof provides for selection of students. The Supreme Court, in the case of State of Madhya Pradesh and Another v Kumari Nivedita Jain, by referring to the enabling provision contained in Section 33 of the Central Act, has held that the Regulation I is mandatory since it was competent for the Council to frame such regulation but Regulation II providing for regulating the process of admission to the course not being referable to any of the clauses under Section 33 was, for that reason, held to be directory and in the nature of recommendation having no statutory force.
73. So far as the Regulations of 1993 are concerned, these are ex facie mandatory having been framed under the express authority of the Parliament under Section 10-A(2)(b) read with Section 33(fa), (fb) and (fc) of the Central Act. The violation of the requirements as provided under Section 10B of the Central Act.
Medical Council of India: Powers and functions 74. Council has been constituted under Section 3 of the Central Act. Section 6 has given it the status of a body corporate. Elaborate provisions have been made for the terms of its officebearers, its meetings, committees and servants. Section 10 provides for an executive body. The Supreme Court, keeping in view the functions assigned to the Council, in the case of State of Kerala v Kumari T.P. Roshana , has observed that.-
'The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high powered Council has power to prescribe the minimum standards of medical education. It has implicit power to prescribe the minimum standard of medical education, It has implicit power to supervise the qualifications or eligibility standards for admissions into medical institutions. Thus, there is an overall invigilation by the Mecial Council to prevent sub-standard entrance qualifications for Medical Course'. 75. In the said context, the relevant provisions of the Central Act may be examined to ascertain the precise functions assigned to Council in relation to medical education. Under Sections 11, 12, 13 and 14, the Council discharges a consultative function to enable the Central Government to recognise a medical qualification. Under Section 16, it has been empowered to require information as to courses of study and examinations from very University or Medical Institution in India which grants a medical qualification. Under Section 18 it can appoint visitors to inspect any Medical College, institution, hospital or other institution where a medical education is given or to attend any examination held by the University or Medical Institution. Under Section 19 the Council can upon report of the Committee or visitor, represent to the Central Government for withdrawal of recognition of any medical qualification. If it appears to the Council that such institution or college do not conform to the standards prescribed by it. Explanation II to Section 10-A(1) of the Act gives recognition of the admission capacity fixed by the Council for the purpose of the said provision. Under sub-section (2) of Section 10-A the scheme submitted to the Central Government is to be referred to the Council for its recommendations made after following the procedure contained in sub-sections (3) to (7). Section 19A, explanation to Sections 10-B and 33 empowers the Council, subject to the procedures laid down therein, to frame regulations on various aspects of medical education.
76. From a conspectus of the above provisions it is, inter alia, clear that the Council though has the power of inspection and functions as a recommendatory or consultative body to advise the Central Government on various aspects, but has no independent authority to (i) recognise or withdraw the recognition of the medical qualifications, (ii) Grant approval or recognition to anyMedical College. Even the scheme contemplated under Sections 10-A and 10C cannot be filed before or accepted by the Council directly. Similarly, it has no power to approve or disapprove the starting or new or higher courses of study or increase admission capacities which power has been exclusively conferred on the Central Government'.
10. Ultimately it was held:
'79. Therefore keeping in view the provisions of the Constitution as well as the law laid down by the Apex Court, it is clear that neither the Central Government nor the State Government can exercise its executive powers in relation to the aspects of medical education which are covered by the specific legislations, may be Central or State'.
11. While approving the said decision it has to be stated that the provisions of the Act and regulations read together provide that the minimum standard of medical education requires to be maintained. The capacity of intake of the college will be fixed by the MCI. The increase of the seats will be made after applying the provisions provided under Section 10-A(D(b) of the Act after following the procedure laid down under Section 10-A(2) of the Act. Criteria for the qualification is provided under the regulations framed in the year 1993 under Section 33 of the Act reads as follows.-
'Qualifying criteria:
The Medical College/institution shall qualify to apply forincreasing the number of admission inMBBS/DIPLOMA/DEGREE/HIGHER/SPECIALITIES courses inthe existing medical colleges/institutions only if the followingconditions are fulfilled.-
1. The Medical College/Institution is recognised by the Medical Council of India for running these courses.
2. The permission letter regarding desirability and feasibility of having an increase of seats at the existing medical college/institution for these courses has been obtained by the applicant from the respective State Government or the Union Territory administration.
3. Letter of University's permission for increasing the seats at the existing medical colleges/institutions has been obtained by the applicant from the University to which it is affiliated.
4. That the applicant has a feasible and time bound programme to provide additional equipment and infrastructural facilities like the number of staff, space, funds, equipment and teaching beds etc. for the increased numbers as per Medical Council of India recommendations.
5. That the number of teaching beds will have to be in the ratio of 7 beds per student admitted, for more than 100 admissions. The number of units in the clinical departments have to be increased and additional senior staff provided. The number of teaching staff will have to be in the ratio 1:10 students for MBBS, 1:1 for PG degree, 1:2 for PG Diploma, 1:1 for higher specialities.
6. That the maximum number of admissions in MBBS Course should not exceed 150 annually'.
Clause (6) of qualifying criteria specifically provides that the maximum number of admissions in MBBS Course shall not exceed 150 per year. Therefore, by virtue of the power conferred on MCI vide Section 10-A(2) read with Section 33 of the Act, the qualifying criteria is laid down. Therefore, it cannot be said that the fixation of maximum number of seats at not more than 150 to be beyond the power. It is also to be mentioned that the learned Single Judge of this Court in the above cited case correctly held that except MCI, no other authority has got any power to permit increase of the seats. The Division Bench in appeal reversed the order of the learned Single Judge. The matter was carried to the Supreme Court. The Supreme Court after elaborately considering the rival contentions, has reversed the judgment of the Division Bench and approved the order of learned Single Judge and the same is Medical Council of India v State of Karnataka and Others. It is also essential to mention here that the present respondent 1-college was a party before the Supreme Court and it has taken all the contentions now raised in the writ petition. The learned Counsel Sri Rama Jois appearing for the college contended before the Supreme Court as follows:
'23. Mr. Rama Jois, appearing for J.N. Medical College, Belgaum, respondent 16, submitted that if the State or the University has fixed intake for admission to medical college as on June 1, 1992 that would continue to hold good unless the medical college asks for increase. He said that even if the Medical Council had passed production (sic) of the seats existing on June 1, 1992 it could do so only after notice and after hearing the medical college. He submitted that in the letter of the Central Government to the Secretary, Medical Council, which is dated January 19, 1994, clarification was given as to the word 'established' mentioned in Section 10-A of the Medical Council Act, as amended. In this letter the opinion of the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) was communicated, which was to the following effect.-
'The provisions of Section 10-A of the IMG (Amendment) Act, 1993 will not apply to those colleges who have obtained all necessary statutory/administrative approvals from the respective authorities and where admission procedure was commenced priorto 1st June, 1992. This would imply that all those Medical Colleges who have started the admission procedure prior to 1-6-1992, after taking the following permission, will be outside the purview of Amendment' Act.-
(i) Permission of the concerned State Government.
(ii) Affiliation of the concerned University.
This would also apply to cases of increase in admission capacity in Medical colleges and starting of new Postgraduate Medical Courses' '.
12. The Supreme Court repelling those contentions has held as follows:
'30. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college or hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Hence forth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10-A, 10B and 10-C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/Higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State Government and that of the University with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.
31. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned Single Judge was right in his view that 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 and thatSections 10-A, 10B and 10-C, will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 10-A of the Medical Council Act which the Division Bench said were only recommendatory. Niuedita Jain's case, supra, does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected'.
13. Thus the Apex Court has now resolved the conflict and has finally held that except MCI, no other authority has got any power to permit establishment of new institutions or increase the number of seats or to start new courses.
14. In the present case, respondent 1-college's seats were increased up to 130 in 1985 with the approval of MCI. Thereafter, when they increased the seats from time to time up to 195 by 1992 admittedly there is no approval of the MCI and the seats were increased with the alleged permission of the University and the State Government which have no power to permit such increase under the Act and as per the judgment of the Supreme Court where it is held - '.. To say that the number of students as permitted by the State Government and/or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come'. Therefore, the contention of respondent 1 that the college has increased the seats with the approval of the University and the State Government prior to incorporation of Sections 10-A, 10-B and 10-C and as such it is valid, is not tenable. The learned Counsel for the first respondent contended that increase of seats from 130 to 195 is in accordance with the standards fixed by the MCI and as per the norms fixed by the University for increase of seats and as such the increase from 130 to 195 after obtaining the permission of University and the State Government is valid. The said contention is not tenable in the face of the observations of the Supreme Court which held that even prior to 1-6-1992 i.e., incorporation of Sections 10-A, 10B and 10-C, except MCI, no other authority has got any power to permit increase of seats as the Central legislation prevails over the State laws. The further contention that the Executive Committee and GeneralCouncil of MCI have recommended by their resolutions dated 12-9-1996 and 25-9-1996 for approval of 200 seats and as such it is validated is also untenable as the said recommendation is beyond the scope of Criteria 6 of the qualification, supra. If such recommendations are to be accepted by-passing Criteria 6 which has fixed 150 as the maximum capacity, in a given circumstance request could be made to increase the seats by even hundreds. Such interpretation is not permissible since it would defeat the purpose of the legislation.
15. The learned Counsel for respondent 1 secondly contended that the aforesaid Section 10-A provides for submitting a claim for establishment of college or for starting a new course or for increasing the seats in the college and Explanation 2 of the said section delegates fixation of intake capacity to the MCI. In pursuance of that delegation, MCI has fixed 150 as maximum intake in Criteria 6. Hence this Criteria 6 has to be taken only as directory and not mandatory as otherwise, it will amount to overriding the provisions of the Act i.e., delegatee exceeding the power delegated by the delegator.
16. The learned Counsel further contended that the legislature has specifically used the expression- 'that maximum number of admission in MBBS should not exceed 150 annually'. As the word 'should' is used, it has to be interpreted directory and not mandatory. In support of this proposition, the learned Counsel for respondent 1 relied upon the judgment of the Supreme Court in Kumari P.V. Nivedita Jain's case, supra. In the said case, for a particular academic year, qualifying marks fixed for admission to MBBS was 50%. Scheduled Caste candidates who appeared in the qualifying examination were not qualified by obtaining such marks. Therefore, the Government has reduced the qualifying marks in respect of Scheduled Caste candidates to 40%. This was challenged by one student Nivedita Jain, belonging to general category stating therein that once the MCI has fixed the marks, Government or University has no power to alter the same. The Supreme Court, considering the reservation policy alongwith the provisions providing for qualifying examination i.e., Regulations I and II and comparing the word 'shall' used in Regulation I with the word 'should' used in Regulation II, held that as per the facts and circumstances of that case providing the criteria for admission, stated that it is only directory and not mandatory. Whereas in respect of Regulation I, the word 'shall' is used. Therefore, the facts of that case are quite different from the facts in the present case.
17. The learned Counsel further relied upon the decision of the judgment in Medical Council of India's case, supra and contended that the Supreme Court has referred to the judgment in Nivedita Jain's case and therefore the word 'should' should be interpreted as directory. We are not able to accept the said contention. Explanation 2 to Regulation 10-A has specifically delegated the power of intake to the MCI and after taking into consideration the relevant material, has fixed the seats 'not exceeding 150'. It is a settled principle of law that no provision of an Actcan be declared illegal or void or unconstitutional, except on the ground of violation of the Constitution or deletion of any of the fundamental rights under the Constitution. Therefore, we are not able to agree with the said contentions of the learned Counsel for the appellant.
18. The learned Counsel for the appellant further contended that if a college has already been given 150 seats it is prevented from applying for increase in the number of seats which will defeat the scheme of increases of seats provided under Section 10-A of the Act as Explanation II to Section 10-A directs the MCI to fix the intake capacity from time to time. The power to increase seats in an institution according to the scheme of the Act in consonance with the regulations, is delegated to MCI. Accordingly, MCI fixed 150 seats taking into consideration the relevant materials. The MCI- has now got a discretion to change the number of seats either to decrease or increase from 150, according to the requirement in the field of medical education. Therefore, it cannot be said that the fixation of maximum number of seats is beyond the purview of the Act.
19. The learned Counsel contended that as the words 'from time to time' is mentioned in Explanation 2, will not bar the MCI from altering the seats from time to time and approve increase and for this proposition, he relied on 'Stroud's Dictionary, 4th Edition, II Volume, page 1120 in which the word 'time to time' is interpreted as - 'as occasion arises' and also relied on 1954 All ER 46, wherein it is interpreted that once power is exercised by the authority, it is not a bar to exercise power again to modify, change or add when the power to exercise is conferred on him. The facts of that case are different from the facts of the present case. Here, the Act conferred power on the MCI to fix the intake capacity from time to time. By virtue of the said power, the MCI fixed the maximum intake as 150, whereas in the case stated supra, there is no fixation of maximum seats by the delegatee. Therefore, the said proposition will not apply to this case.
20. It is also to be noticed that the fixation of 150 as maximum capacity is not a permanent feature. As and when the MCI comes to conclusion or brought to its notice that the requirement for increase of seats is necessary, in the interest of medical education, it is empowered to amend the regulation to suit the future situation.
21. In view of the above said circumstances, the learned Single Judge was not right in allowing the writ petition and quashing Annexure-P and Endorsement at Annexure-V and directing respondent 1 and Central Government to reconsider the case basing on the recommendations made for approval of 200 seats. Following the judgment of the Supreme Court in Medical Council of India's case, supra, setting aside the judgment of the Division Bench of this Court in the case of State of Karnataka v A Citizen of India1 - We allow this appeal setting aside the impugned judgment ofthe learned Single Judge and dismiss the writ petition filed by the first respondent.
22. Appeal is allowed.