Bhaskar Bhattacharya, J.
1. By these two writ applications, State of West Bengal through Government of West Bengal, Health and Family Welfare Department and the Principal Secretary of such department have prayed for direction upon the respondent No. 1 not to raise untenable, unreasonable and unlawful objection to the grant of permission for setting up to two new medical colleges, one at Midnapore and the other at Kolkata and to pave the way for commencing the MBBS Course in those two colleges for academic session 2003-04. The petitioners have further prayed for declaration that permission for setting up such new medical colleges had already been given with effect from the expiry of one year from the dates of filing of the schemes in terms of section 10A, Sub-section (5) of the Indian Medical Council Act, 1956 (hereinafter referred to as 'the Act'), The petitioners have also prayed for consequential relief permitting them to admit students in those two colleges pursuant to such deemed permission.
2. These two applications are opposed by both the Medical Council of India ('MCI') and Union of India. The MCI has filed affidavit-in-opposition but the Union of India has not filed any affidavit.
3. After the aforesaid two applications were entertained by this Court, nine persons came forward with an application for being added as respondents in these two writ applications on the ground that they appeared at the Joint Entrance Examination for admission to MBBS Course under category of Foreign students/NRI/NRI Sponsoredship/Management Quota held on 17th August, 2003 and they have found place in the higher level of the merit list. They contend that if recognition is granted to those two medical colleges, they will get admission in the first year MBBS Course. According to them, they are, thus, interested in the fate of these two writ applications and as such, they should added as respondents.
4. On 31st October, 2003 Padipta Roy, J. added those nine persons as respondents subject to such objections that might be raised by MCI at the time of final hearing.
5. In view of such order passed by Pradipta Roy, J. dated October 31, 2003, Mr. Kar, the learned Counsel appearing on behalf of the MCI has opposed the prayer for addition contending that for effective adjudication of the disputes involved in these two writ applications, the presence of those nine persons are not at all necessary. Mr. Kar further contends that those persons are neither necessary nor proper party and as such, their name should be deleted from the cause title and no opportunity of hearing should be given to them in these proceedings.
6. Mr. Panja, the learned Senior Counsel appearing on behalf of those persons, has vehemently opposed the aforesaid prayer of Mr. Kar and contended that his clients having figured in the list published by the appropriate authority pursuant to the examination held in this regard, they have every right to support the prayer of the petitioners and, as such, his clients are at least, proper parties to these writ applications.
7. After hearing the learned Counsel for the parties and after going through the materials on record, I am of the view that for effective adjudication of the disputes involved in these writ applications, those applicants are neither necessary nor proper parties. Merely because they were selected by virtue of a Joint Entrance Examination, such fact cannot confer any legal right upon them to be added in proceedings where an applicant under Section 10A of the Act has prayed for the reliefs as claimed in these applications. So long permission is not granted in favour of the writ petitioners, those applicants cannot have any right to get admission. Thus, the decision that will be passed in these writ applications cannot affect any of their existing legal or fundamental rights justifying intervention in these proceedings. I, thus, find substance in the contention of Mr. Kar that those applicants are neither necessary nor proper party. I, thus, uphold such contention and direct deletion of names of those persons from the Cause Title of these applications.
8. Mr. Kar, the learned Advocate appearing on behalf of MCI has taken a, preliminary objection as to the territorial jurisdiction of this Court to entertain these writ applications. Mr. Kar contends that as all the respondents are stationed beyond the territorial limit of the State of West Bengal and no part of cause of action has arisen within the State, these writ applications cannot be entertained by this Court.
9. After going through the materials on record I am, however, not at all impressed by such submission.
10. The phrase 'cause of action' is a group of operative facts giving rise to one or more bases for suing; it is a factual situation that entitles one person to obtain a remedy in the Court from another person. (See Black's Law Dictionary, Seventh Edition).
11. In the cases before us, the petitioners have complained inaction of the Central Government and illegal action on the part of MCI in the matter of investigation of facts for grant of permission for opening two new medical colleges in the State of West Bengal. This Court is also called upon to decide whether those investigations carried out in the State of West Bengal are in conformity with the law of the land. Thus, part of cause of action definitely arises within the territorial limit of this Court and as such this Court has territorial jurisdiction to entertain this application. I, thus, overrule the preliminary objection raised by Mr. Kar.
12. Now turning to the main writ applications, I find that the petitioners' prayer are two fold. First, they want this Court to pass direction upon the MCI not to raise 'unreasonable' or 'untenable' or 'unlawful' recommendations to the Central Government in terms of Section 10A(3) of the Act. Secondly, they have prayed for declaration that since the schemes in these two cases were submitted before the Central Government in terms of Section 10A of the Act in the month of August, 2002, on the expiry of one year from the submission of such schemes the Central Government having failed to take any decision, it should be presumed that permission has been granted for opening those two new colleges in terms of Section 10A(5) thereof,
13. At the very outset, I propose to deal with the second point.
14. To appreciate the aforesaid contention raised by the petitioners, it will be profitable to refer to the provisions contained in Section 10A in its entirety and accordingly those are quoted below;
'10A. Permission for establishment of new medical college, new course of study, etc.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force-
(a) no person shall establish a medical college; or
(b) no medical college shall-
(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training),
except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1.--For the purposes of this section, 'person' includes any University or a trust but does not include the Central Government.
Explanation 2.--For the purposes of this section, 'admission capacity', in relation to any course of study or training (including post-graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.
(2)(a) Every person or medical college shall, for the purpose of Obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with the provisions of 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.
(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.
(4) The Central Government may, after considering the scheme and the recommendations of the Council under Sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in Sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under Sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub-section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under Sub-section(2).
(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under Sub-section (2) no order passed by the Central Government has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and, accordingly, the permission of the Central Government required under Sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in Sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing any particulars called for by the Council, or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations under Clause (b) of subsection (3) and the Central Government, while passing an order, either approving or disapproving the scheme 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 post-graduate 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;
(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 students likely to attend such medical college or course of study or training be person having the recognized medical qualifications;
(f) the requirement of manpower in the field of practice of medicine; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned.'
15. It appears from the aforesaid provisions that an applicant for the purpose of obtaining permission under Sub-section (1) should submit to the Central Government a scheme in accordance with the provisions of Clause (b) of Sub-section (2) and after receiving such scheme, the Central Government should refer the same to the MCI for its recommendations. On receipt of such a scheme from the Central Government, the MCI may require the applicant to furnish such other particulars as it may consider necessary and thereafter giving an opportunity of hearing to the applicant may ask such applicant to rectify defect, if any. If there is no defect in the scheme, the Council should consider the scheme on merit having regard to the factors referred to in Sub-section (7) and thereafter should submit the scheme together with its recommendations to the Central Government. The Central Government after considering the scheme and the recommendations of MCI and after obtaining, where necessary, such other particulars as it may consider necessary having regard to the factors referred to in Sub-section (7), may either approve the scheme with such conditions as it may impose or disapprove the scheme and any approval, if granted, should be treated to be permission under Sub-section (1). It is, however, provided that no scheme should be disapproved by the Central Government except after giving the applicant a reasonable opportunity of being heard. It is further provided that even if any scheme is not approved by Central Government, such fact will not stand in the way of the applicant to submit a fresh scheme and the provisions of the said section should apply to such scheme as if such scheme has been submitted for the first time.
16. Sub-section (5) of the said section, however, provides that where within a period of one year from the date of submission of the scheme to the Central Government, no order passed by Central Government has been communicated to the applicant, such scheme should be deemed to have been approved by the Central Government in the form in which it had been submitted and accordingly the permission of the Central Government required under Sub-section (1) should also be deemed to have been granted. Such 'deemed' declaration is, however, subject to the condition imposed in Sub-section (6) providing that in computing the time limit specified in the Sub-section (5) the time taken by the applicant in furnishing any particulars called for by the Council or by the Central Government should be excluded.
17. In the present cases, the schemes for Kolkata College as well as Midnapur College were submitted on 19th August, 2002. There is no dispute that after submission of the schemes, the MCI raised various objections pointing out deficiency of the applicants and accordingly those were also conveyed to the Central Government and the Central Government communicated such objections raised by MCI to the applicants. The applicants accepted those objections and consequently removed the deficiency and again invited the MCI for further inspection and in the process inspections have been held thrice. Ultimately, in the month of September, 2003 the MCI submitted recommendation for grant of letter of intent commencing, however, from the academic session 2004-05 and not from 2003-04. Thus, it appears that the scheme originally filed by the applicants were further modified pursuant to the objections raised by MCI and those schemes were under active consideration of the Central Government. In my view, in order that an applicant can ask the Court for giving declaration of deemed permission in terms of Sub-section (5) ofSection 10A, it must be proved that after submission of scheme, either the applicant removed the deficiency or defect in the scheme if pointed out or no objection had been raised by either MCI or Central Government as regards proposed scheme and inspite of existence of such a situation, the Central Government has not communicated its decision within the period of one year from the date of presentation of scheme after excluding the time taken by the applicant for furnishing further particulars, if demanded. But in a given case, where objections have been repeatedly raised and the applicants have accepted such objections and have tried to remove the deficiency, it necessarily follows that the applicants are not pressing the original scheme submitted by them and the time should further run from the date of removal of the shortcomings. In the instant case, even in the month of August, 2003 the applicants have removed the imperfections as per requisition of the MCI and, thus, no question of drawing the presumption of 'deemed permission' arises in the month of October, 2003. Mr. Kar in this connection has placed a letter written by the petitioner No. 2 dated August 1, 2003 to the Secretary of the Government of India, Department of Health showing that in the penultimate paragraph of the said letter the petitioner No.2 has admittedly abandoned the initial scheme so far college at Kolkata is concerned. The said paragraph of the letter is quoted hereunder:
'This State Government realized that it was not immediately possible to meet the infrastructural requirements necessary to satisfy the stipulations of the MCI apropos of a student intake of 150 and thereafter accordingly the Director, IPGME & R made a revised application to the Government of India for starting MBBS course with an annual admission capacity of 100 students, on 10th July, 2003, in modification to the earlier proposal. The Director of Medical Education, West Bengal issued necessary Essentiality Certificates for an annual admission capacity of 100 students.'
18. So far the medical college at Midnapore is concerned the applicants have similarly removed the deficiency as per demand of MCI thrice and thus, it can not be said that the original scheme proposed by the applicant in the month of August 2002 is still under consideration. The recommendation for letter of intent has been given by MCI on the basis of changed scheme pursuant to the objections raised by MCI. Therefore, it is apparent that the applicants are not entitled to get any declaration of 'deemed permission' in terms of Section 10A(5) of the Act in the month of October, 2003. I, thus, find no force in the aforesaid contention of the petitioners and I hold that the petitioners cannot be given the benefit of Section 10A(5) of the Act.
19. The next question is whether in these writ applications this Court can pass a direction restraining the MCI from raising 'untenable', 'unreasonable' or 'unlawful' objections to grant of permission for setting up new medical colleges.
20. As pointed out earlier, under provisions of Section 10A of the Act, the Central Government is the supreme authority which can grant permission to establish new medical college, after considering recommendations of the MCI. The word 'recommendations' used in Section 10A does not mean favourable recommendation. All that the said section requires is that before taking finaldecision the Central Government should take into consideration the comments of MCI on the proposed scheme and after giving opportunity of hearing to the parties concerned it is for the Central Government to take final decision whether it will grant permission or not. Such permission can even be granted with some conditions as mentioned in the said section. Therefore, in a writ application under Article 226 of the Constitution of India an applicant under Section 10A of the Act cannot insist on passing directions upon the MCI not to raise unreasonable objections. It is now settled position of law that a writ application under Article 226 is maintainable only if it is established that by the action or inaction on the part of the 'State' within the meaning of Article 12 of the Constitution of India, any of the legal or fundamental rights of the petitioners has been infringed. According to Section 10A it is within the competence of the MCI to give their comments or suggestions to the proposed scheme. If such recommendations are unreasonable or unlawful, the applicant is not without remedy inasmuch as the section provides that the Central Government will take appropriate decision after giving an opportunity of hearing to the applicant. Thus, it is for the Central Government to decide whether the recommendations of the MCI in the fact of a given case should be accepted or turned down. An applicant under Section 10A cannot have any right at this stage to ask a High Court to pass direction upon the MCI to give recommendation in a way which is suitable to the applicant. If the recommendations are unlawful and inspite of such unlawful recommendations Central Government accepts such recommendations and does not approve the scheme, the applicant can approach a High Court complaining violation of his legal or fundamental right to establish a new medical college complying with the requirement of law in this regard. Since, the Central Government has not yet taken any final decision in the matter, there is no scope of passing any direction upon MCI to give their recommendations in a propitious way.
21. Moreover, it appears from record that the MCI, although, was not fully satisfied even about the modified schemes of the applicants, has ultimately granted recommendations for grant of letter of intent in favour of the petitioners from the academic session 2004-05 but not from 2003-04. It appears from the affidavit-in-opposition used by the MCI that it is under the impression that in view of the Supreme Court decision in the case of MCI v. Madhu Singh, reported in : [2002]SUPP2SCR228 , the cut off date or the last date of admission in MBBS course being 30th September, 2003, there is no scope of granting the letter of intent in favour of the petitioners for the current academic session at this belated stage.
22. Mr. Kar has strenuously contended that pursuant to the said decision of the Supreme Court in Madhu Singh's case (supra) the MCI with the concurrence of Central Government took a resolution fixing 30th September of every year as the last date of admission in MBBS course and the same was communicated to all medical colleges and the universities for implementation. Mr. Kar contends that the Supreme Court has accepted 30th September, 2003 as the last date of admission in MBBS course as would appear from the orders passed in various matters and as such the said date can in no case be altered either by MCI or by the Central Government.
23. Mr. Kar in this connection has placed xerox copies of the certified copies of the orders of Supreme Court passed in five different matters and tried to impress upon this Court that in all those matters the applicants prayed for extension of the last date of admission in MBBS course beyond 30th September, but Supreme Court dismissed such prayer. By relying upon those decisions Mr. Kar submitted that Supreme Court has thus approved 30th September of every year as the last date of admission in MBBS course and, as such, Central Government and MCI are bound by such decision.
24. Mr. Roy, the learned Advocate General appearing on behalf of the petitioners has, however, opposed the aforesaid contention of Mr. Kar and has pointed out that a mere summary dismissal of a Special Leave Application does not imply that a law has been laid down by Supreme Court in terms of Article 141 of the Constitution of India.
25. After hearing the learned Counsel for the parties and after going through the decision of the Supreme Court in the case of MCI v. Madhu Singh (supra) I find that the Supreme Court in paragraph-23 of the said judgment directed, inter alia, that MCI should ensure that the examining bodies fix a time schedule specifying the duration of the course, the date of commencement thereof and the last date of admission. There is no dispute that in terms of Section 33 of the Act such direction should be incorporated in the regulation framed by MCI. Section 33(j) of the Act specifically points out that MCI should with the previous sanction of the Central Government make regulation regarding the courses and the period of study and practical training to be undertaken etc. and thus, MCI in exercise of such power can definitely fix the last date of admission in the course. There is no dispute that in the past, the Central Government and MCI jointly took decision fixing 30th September of every year as the last date of admission but such resolution was not incorporated in the existing regulation by way of amendment. It appears from annexure P-1 to the instant writ petition that subsequently the Central Government felt that the said resolution should not be given effect to at least for the academic session 2003-04 after taking into consideration various practical difficulties pointed out therein and, thus, suggested to the Council to examine the proposal for refixing the last date of admission in case of academic session 2003-04 by extending the same to 30th November, 2003 so that the Ministry can convey its approval under Section 33of the Act for incorporation of the time schedule in Graduate Medical Education Regulation, 1997 so as to ensure its strict compliance from academic session 2004-05 onwards. In my opinion, although the Regulation was not amended as per decision of the Supreme Court in Madhu Singh's case, since both the Central Government and MCI unanimously resolved to fix 30th September of every year as the last date of admission in MBBS course, the same was given effect to and the Supreme Court also did not allow any of the colleges to extend the said time limit. But the moment Central Government finds that such last date cannot be given effect to for the academic session 2003-04 and directs the MCI to reconsider such proposal so that necessary amendment can be made in terms of Section 33 of the Act in the Graduate Medical Education Regulation, 1997, it necessarily follows that the Central Government has withheld the previous consent given to the proposal of MCI for the academic session 2003-04.
26. Therefore, after 25th September, 2003 when a different proposal has been given by Central Government to extend the last date of admission for this year, it cannot be said that the previous unanimous decision of Central Government and MCI has still the force of law. I have already indicated that the Regulation has not been amended pursuant to the direction of the Supreme Court in Madhu Singh's case (supra) and, as such, in strict sense, there is no enforceable law as on this day by virtue of which it can be said that 30th September of every year is the last date of admission. I find substance in the contention of Mr. Roy that merely because Supreme Court summarily dismissed certain applications without giving any reason where the applicant prayed for extension of time, such dismissal orders should not be treated to be a precedent in terms of Article 141 of the Constitution of India laying down a law that 30th September cannot be altered in any case as the last date of admission.
27. Moreover, mere rejection of a special leave application, cannot, by itself be construed as the imprimatur of the Supreme Court on the correctness of the decision sought to be challenged. [See Rup Diamonds and Ors. v. Union of India and Ors., : 1989(40)ELT226(SC) ]. As pointed out by Apex Court itself in the case of Supreme Court Employees' Welfare Association v. Union of India, reported in , where no reason is given but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by the Supreme Court under Article 141 of the Constitution of India.
28. Mr. Kar could not place before this Court any decision of the Supreme Court where the Supreme Court has held that 30th September of every year should be treated to be the last date of admission in MBBS course in accordance with the present law and that such date cannot be even changed by the Central Government or MCI by exercising power in terms of Section 33 of the Act. In my view, even if the appropriate Regulation is amended by incorporating that date as the last date of admission, in terms of the Act, the Central Government has every right to prevail upon the MCI to change such date after making appropriate amendment in the Regulation.
29. Mr. Hazra, the learned Counsel appearing on behalf of the Central Government is unable to assert what is the stand of Central Government in this matter. It appears that the Central Government inspite of opportunity being given has not filed any affidavit-in-opposition. All that Mr. Hazra has submitted is that if direction is given upon the MCI to send their recommendations for grant of letter of permission on the basis of communication of the State Government dated 30th September, 2003 upon the recommendations of letter of intent given by MCI, it will take final decision in the matter within such time as this Court will fix.
30. Although both Mr. Roy and Mr. Kar made lengthy submissions on the question whether Hostel facility is a must or not, since the Central Government has not yet taken final decision in the matter, I am not inclined to go into such question. However, since both the Central Government and the MCI are under a wrong impression as regards the last date of admission and one of the grounds for not recommending grant of letter of intent for the present academic session is the aforesaid cut off date, I make it clear that so long the Central Government is unwilling to fix 30th September of this year as the last date for admission forthis academic year as would appear from Annexure P-1, the said date cannot be said to be the last date for admission in terms of Section 33 of the Act.
31. Mr. Hazra has submitted that the Central Government has already sent the comments of the State Government on the recommendations of letter of intent with effect from 2004-05 to the MCI. Under such circumstances I direct MCI to communicate its views on the question of grant of letter of permission within a week from date and within three days from receipt of such recommendations, the Central Government will take final decision whether letter of permission should be granted to the petitioners and whether the same should be with effect from this academic session. With the above observations the writ applications are disposed of.
32. In the facts and circumstances, there will be, however, no order as to costs.
33. Urgent xerox certified copy of this order, if applied for, be given to the parties by Monday next.