Judgment:
M.N. Rao, C.J.
1. This is an unusual writ petition with hardly any parallel. The State of Himachal Pradesh represented by its Secretary, Department of Health is seeking judicial review of the action of the Central Government represented by the Secretary, Ministry of Health and Family Welfare and the Medical Council of India represented by its Secretary, New Delhi, concerning permission for a Medical College --Dr. Rajendra Prasad Government Medical College, it wants to establish at Tanda in Kangra District with an annual intake of 50 students in the first year, the academic year 1997-98.
2. The State of Himachal Pradesh comprises mountainous terrain of 55,693 sq. km. with 19388 villages scattered all over the State and most of the inhabitants are of tribal and rural background. For the entire State there is only one medical college Indira Gandhi Medical College established in 1960 in the capital city Shimla, long before the State of Himachal Pradesh came into being. The annual intake for admission to the first year medical course in the Indira Gandhi Medical College, Shimla used to be 65 uptill 1996-97 session, and now it is raised to 100. Medical education being costly, it is hardly possible for the overwhelming population to send their children to Medical Institutions outside the State. Fully conscious of this situation, the Hon'ble Chief Minister made an announcement in the Legislative Assembly during the budget speech in 1996 that the State would establish a Medical College in Kangra district in order to provide the much needed medical facilities to the people. This Medical College proposed to be set up in Tanda in Kangra district is intended to serve the people of five districts covering an area of 20,000 sq.kms.Thisplace was chosen because of the existence of a 300 bedded well equipped hospital at DharamshaJa at a distance of 12 kms. where about 7500 patients are treated every year. In order to co-ordinate the activities of various Government branches for the purpose of establishment of the Medical College with effect from the academic year 1997-98 the State Government had appointed a special officer.
3. An application for permission to start the College was made on 26-7-1996 by the State Government to the Central Government. A detailed project plan comprising the actual scheme for setting up the College apart from other necessary related information, was also submitted to the Central Government. The financial aspects as contained in the project plan disclose that the overall capital budget required was for a period of four years. The necessary bank draft for a sum of two lakh rupees was also enclosed with the application (vide Annexure P-1). Simultaneously, the State Government also applied to the Himachal Pradesh University for grant of affiliation.
4. A Committee ofthree experts comprising the Vice-Chancellor, the Director, Medical Education and Research and the Principal of Indira Gandhi Medical College, Shimla after inspecting the available facilities recommended for affiliation (vide Annexure P-2) and accordingly affiliation was granted by the University on 11-9-1996 (Annexure P-3) subject to the condition that 'the College shall start classes only after the approval of the Medical Council of India'.
5. Under Sub-section (1) of Section 10-A of the Indian Medical Council Act, 1956 (for short 'the Act') no person shall establish a Medical College except with the previous permission of the Central Government obtained in accordance with the provisions of that Section. Sub-section (2), inter alia, mandates that the Central Government to whom a Scheme is submitted seeking permission, shall refer the same to the Medical Council of India 'for its recommendations'. If the Scheme is defective, opportunity shall be given as per Clause (a) of Sub-section (3) for making a written representation for the purpose of rectifying the defects specified by the Medical Council. While making the recommendations to the Central Government, the Medical Council, by Clause (b) of Sub-section (3), shall have regard to the factors specified in Sub-section (7) of the Act.
6. On a reference by the Central Government the Medical Council had deputed two Inspectors to inspect and submit their report concerning the scheme in question. The inspection team consisted of Dr. Aken Kumar Desai, Prof, and Head, Department of OBG, Government Medical College, Surat and Dr. S.K. Sharma, Prof, and Head, Department of Urology, P.G.I., Chandigarh. The Inspectors after studying the project plan in detail expressed satisfaction about the feasibility and the necessity for a second medical college in the State at Tanda. The inspection report dated 11-12-1996, inter alia mentions that the State Government proposes to spend a total of 118 crores of rupees by the end of 4th year i.e. 1999-2000, out of which 70 crores is earmarked for capital work and 48 crores for other requirements. The Inspectors expressed satisfaction that with the Government itself being the applieant and is very keen to start the new college 'financial sanction should not cause any problem.' Referring to the extent of the commitment on the part of the State in this regard the Inspectors stated :
'We have gone in detail and studied the project plan which was satisfactory and have checked the essential certificate and have verified that the need for a medical college in the area is worthwhile and the applicant has complete commitment to the cause and purpose shown by them in the application to establish a new medical college as per MCI norms was felt by the Inspectors. There will be no paucity of hospital material.
We both the Inspectors are satisfied about the evaluation of feasibility and requirements of a new Medical College in Himachal Pradesh and have been convinced that the purpose and intention is. sincere and with combined effort a good standard viable College and hospital can function in this area.'
7. The Medical Council of India after examining the report of the Inspector had advised the Central Government favourably and so the latter by an order dated 4-2-1997 (Annexure P-4) granted Letter of Intent for the establishment of Medical College with certain conditions 'for 50 annual admissions from the academic session 1997-98'. Paragraph 3 of the Letter of Intent specifies the conditions :
'(i) The applicant should provide in all infrastructural facilities in terms of teaching and non-teaching staff, buildings, equipments and hospital facilities as per the Medical Council of India norms.
(ii) The applicant should provide 300 bedded hospital and the beds should be allocated as per Medical Council of India norms for various specialities. The existing hospital should be expanded upto 700 beds within a period of four years. 100 beds being increased annually.
(iii) The applicant shouldprovide undertaking -- one for establishment of medical college and its infrastructural facilities and the second for establishment of a teaching hospital and its infrastructural facilities--as per Medical Council of India norms that all the facilities would be provided and that necessary budgetary provision will be provided in Plan Budget for the purpose.
(iv) Other deficiencies as pointed out in the inspection report should be rectified. A copy of inspection report is enclosed.'
8. The State Government by their reply dated 12-2-1997 informed the Central Government of their acceptance concerning the conditions laid down in the Letter of Intent and assured removal of discrepancies pointed out by the Inspectors and sought formal approval.
9. In August, 1997 Dr. R.D. Bansal, wholetime Inspector, Medical Council of India, New Delhi, conducted the inspection 'for verification of the compliance'.
10. The deficiencies pointed out by Dr. R.D. Bansal were brought to the notice of the State Government by the Central Government by their letter dated 4-11-1997 (Annexure R-VII) with a request to forward a compliance report in respect of the deficiencies. The letter cautioned that if the deficiencies are not rectified, the Letter of Intent will be withdrawn but before doing so an opportunity for personal hearing will also be given.
11. We are told at the Bar that such an opportunity was in fact given but unfortunately neither the Central Government nor the State Government maintained the minutes of the personal hearing. The reasons are inexplicable.
12. The State Government responded to Annexure R-VII by writing adetailed letter dated 17-11-1997 (Annexure P-8) wherein it was mentioned that they have complied fully with the requirements of Medical Council of India's Scheme and the conditions laid down in Section 10-A of the Act. Specifically it was mentioned by the State Government :
'that the 50 seats for the proposed Medical College have been advertised for admission along with those of the other Medical/Dental Colleges, etc. and common entrance testhas been conducted by the Himachal Pradesh University in June, 1997. The merit list has been drawn up on the basis of this common entrance test by the H.P. University. This was done in good faith, on the hope and understanding that the permission would be forthcoming from the Government of India in due course.'
13. The fact that large amount of public funds had been invested was clearly highlighted with the request for permission 'at the earliest, so that the pending admissions and course of studies could start immediately, in the interest of the students and the general public'. The State Government's communication was accompanied by the observations of the Inspectors and the details of compliance. .
14. For the third time one more inspection was done on behalf of the Medical Council of India by one Dr. J. K. Tandon, a whole-time Inspector, on 25th and 26th Nov. 1997 and he accordingly submitted a report. One aspect prominently highlighted by the Inspector during the 3rd inspection concerns shortage of staff, out of the 21 departments which would start functioning with full capacity by the end of the fourth year, 8 posts remained unfilled.
15. Presumably based upon the third inspection report, the Executive Committee of the Medical Council of India at its meeting held on 10-12-1997 at Goa at which seven members besides the Secretary attended, had taken the decision to recommend to the Government of India not to issue letter of permission for establishment of the College. The relevant minutes of the Executive Committee reads :
'The Executive Committee considered the compliance verification report (Nov. 97) and decided to recommend to Central Govt. not to issue letter of permission for establishment of Dr. Rajendra Prasad Medical College at Tanda in view of the deficiencies in staff and other infrastructure facilities as pointed out in the Inspectors report.'
16. The recommendations of the Executive Committee were conveyed to the Government of India on 29-12-1997 (Annexure R-VIII). Although the Central Government had not issued any formal orders accepting the recommendations, it is admitted by the learned Additional Standing Counsel appearing for the Union of India that a decision was already taken not to grant permission. This is also supported by the reply affidavit filed by Shri C. L. Bhatia, Under Secretary to the Government of India, in which it is averred in paragraph 15 :
'In view of the deficiencies, it is not possible to grant formal permission to the State Government to start Dr. Rajendra Prasad Medical College at Tanda. However, the Ministry has taken a decision that instead of disapproving the scheme submitted by the State Government to start a medical college, the State Government may be given another opportunity to rectify the deficiencies and to submit a compliance report for further verification.'
17. Slated differently the decision taken is that the College will not be permitted to admit students and that the State Government has to pursue the matter further for rectifying the discrepancies pointed out in the third inspection report of Nov. 1997.
18. To complete the narration, we must state that the writ petition was filed making the Union of India the sole respondent. When the matter came up before us for admission on 29-12-1997, we ordered that the Medical Council of India be impleaded as respondent No. 2 and directed issue of notices. On 1-1-1998, when the matter came up for interlocutory orders a reply-affidavit on behalf of the Medical Council of India was filed and the learned Additional Standing Counsel for the Central Government sought time till 5-1-1998 for filing their reply. We have not granted any interim order as we felt that the proper course should be to hear the main case itself as the situation was likely to assume irreversibility by the date of final hearing.
19. We have heard the learned counsel for the parties fully on Monday and Tuesday (5-1-1998 and 6-1-1998) and indicated delivery of judgment by Friday (9-1-1998) in view of the real urgency involved.
20. Learned Advocate General contends for , the petitioner-State that in respect of the subjects taught in the first year of M.B.B.S. course, namley. Anatomy, Physiology and Bio-Chemistry there is no deficiency, as the total period for completion of infrastructure facilities stretches over a period of four years and in respect of any deficiencies noticed which are not relatable to the first yer course, no objection could validly be taken by the Medical Council of India for recommending grant of permission. It is only in cases where an applicant in the private sector with a view to earning profits by commercialising medical education provides infrastructure relatable only to the first year and does nothing concerning the steps to be taken for the second year onwards, a valid objection could be taken and permission rejected. Cases of such nature patently show either lack of capacity or unwillingness on the part of the concerned applicant. But where the State in the discharge of its constitutional obligation under Article 47 of the Constitution seeks to set up a medical college which will necessarily result in improvement of public health, rejection of the request on the ground that a few requirements relatable to the M.B.B.S. course from the second year onwards have not been immediately complied with would amount to a patently unjust and arbitrary action. Further, believing in good faith that the requirements to be fulfilled are not of immediate necessity and the resources at the cbrrimand of the State being adequate, entrance lest for admissions to medical courses not only in the Indira Gandhi Medical College, Shirnla. but also for the proposed college at Tanda had been completed and the results published in July, 1997. As the admission have to be made from among the successful candidates in the entrance test in regard not only the two Medical Colleges but also two other institutions -- Dental College and College of Ayurveda -- in the orderof merit and unless admissions to Dr. Rajendra Prashad Medical College at Tanda are completed the seats in Dental and Ayurveda Colleges cannot be filled. According to the learned Advocate General; the student population has become restive because of the inordinate delay in finalising admission, any further loss of time may result in out break of activities likely to cause breach of peace. The possibility of the aggrieved students bringing civil actions claiming huge damages against the State also cannot be ruled out. He has also mentioned that already one writ petition has been filed in this Court (C.W. P. No. 555/97) by two students seeking directions for their admission to Dr. Rajendra Prasad Medical College at Tanda on the basis of ranks secured by them in the entrance test.
21. The learned Advocate General also contended that as the State Government has substantially complied with all the conditions necessary for starting the first year course, it was legitimately expecting grant of permission from the Government of India and there are no legally sustainable grounds to belie such expectations.
22. Controverting these submissions. Shri Maninder Singh, learned counsel for the Medical Council of India has argued with considerable vehemence that tne Medical Council of India, being an autonomous body consisting of experts in the field, is the only competent body toevaluate and report whether the infrastructure provided measures up to the norms laid down in that fegard. Mere grant of Letter of Intent does not amount to giving a green signal for sorting the college, unless all the conditions laid down in the Letter of Intent are fully complied with no applicant even if it happens to be the State Government can run a medical institution. The recommendation of the Medical Council of India is a necessary pre condition for the Government of India to grant permission and in the absence of such a permission no one can start a medical college. Even now the petitioner can comply with the discrepancies pointed out by the Medical Council of India and the latter after verifying the same, if satisfied, will recommend to the Government of India for grant of permission. Mere compliance with the requirements for the first year course will not entitle the petitioner to seek to seek a writ of mandamus from this Court directing the Government of India to grant permission. What are the requirements necessary for starting a medical college is a matter to be dealt with exclusively by experts and this Court in exercise of the power of judicial review under Article 226 cannot examine this aspect for the purpose of substituting its opinion for that of the Medical Council of India, the expert body under the Act.
23. We have been referred to a number of rulings by Shri Maninder Singh concerning the limits of the jurisdiction of this Court under Article 226 of the Constitution of India in matters relatable to grant of permission for establishing medical and other educational institutions.
24. Shri Ashwani Pathak, learned Standing Counsel for the Central Government while adopting the arguments advanced by Shri Maninder Singh forthe Medical Council of India, has stated by way of additional submissions, that due to paucity of time no formal orders could be issued by the Government of India on the basis of the recommendation of the Executive Committee of the Medical Council of India not to grant permission to the petitioner. However, the scheme submitted by the State Government has not been disapproved and that a decision was already taken by the Ministry to the effect that 'the State Government may be given another opportunity to rectify the deficiencies and to submit a compliance report for further verification'.
25. Before considering the rival contentions advanced by the learned counsel for the both sides, we think it appropriate to advert to the necessary statutory provisions. Section 3 of the Act speaks of Constitution and composition of the Medical Council, which by Section 6 enjoys a distinct legal personality. The Council consists of representatives from each State and each University in the country, besides other categories specified in Clauses (c) (d) and (e) of Section 3(1) of the Act. Section 9, among other things, speaks of Constitution of an Executive Committee for general or special purposes as the Council deems necessary to carry out the purposes of the Act. By Section 10, the Executive Committee shall consist of the President and Vice-President and not less than seven and not more than ten other members, who shall be elected by the Council from amongst its members. The Executive Committee by Sub-section (3) of Section 10 shall also exercise and discharge, in addition to the powers and duties conferred and imposed upon it by the Act, such other powers and duties as the Council may confer or impose upon it by any regulations which may be made in that behalf.
26. Section 10-A was inserted by Act No. 31 of 1993. The statement of Objects and Reasons, inter alia, says that the amendment became necessary because of indiscriminate mushroom growth of medical colleges which must be curbed in the public interest.
27. Omitting the immaterial portion, Section 10-A reads :
'10-A. 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 post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any bourse of study or training (including a postgraduate 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 riot include the Central Government.
Explanation 2.-- For the purposes of thissection, 'admission capacity', in relation to anycourse of study ortraining (including post-graduate course of study or training) in a medicalcollege, means the maximum number of studentsthat may be fixed by the Council from time totime for being admitted to such course or training.
(2) (a) Every person or medical college shall,for the purpose of obtaining permission underSub-section (1), submit to the Central Govern-mcnt a scheme in accordance with the provisionsof Clause (b) and the Central Government shallrefer the scheme to the Council for its recommendations.
(b) The scheme referred to in Clause (a) shallbe in such form and contain such particulars andbe preferred in such manner and be accompaniedwith 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 subsection 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) & (6) .....
(7) The Council, while making its recommendations under Clause (b) of Sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under Sub-section (4), shall have due regard to the following factors, namely :--
(a) whether the proposed medical college or me existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standard 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 col lege 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 by person having the recognised medical qualifications;
(f) the requirement of manpower in (he 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 disapprovi ng a scheme under this section, a copy of the order shall be communicated to the person or college concerned.'
The other provisions of the Act are not very material for the purposes of this case.
28. As we have already referred to the three inspection reports submitted to and considered by the Medical Council of India, it is not necessary once again to mention (hem in detail. The last inspection was made on 25th & 26th November, 1997. Thereafter the Medical Council of India informed the Secretary, Government of India by letter dated 29-12-1997 (Annexure R-VIII), its decision not to recommend issue of letter of permission for the college 'in view of the deficiencies in staff and other infrastructure facilities as pointed out in the Inspector's report'. It is therefore, necessary to examine closely the report of the inspector - the report in this regard must only be third inspection report - concerning 'the deficiencies in staff and other infrastructure facilities'.
29. During the entire course of the M.B.B.S. the students are taught in twenty one disciplines. In the first year the subjects taught are Anatomy, Physiology and Bio-Chcmis(ry : vide Annexure I to Annexure R-VIII. The position of the staff in respect of the three departments as mentioned in the third inspection report is as follows :
'There is no shortage of staff in regard to Physiology.
In regard to Anatomy, the shortage noticed is one Lecturer and with respect to Bio-Chemistry, the shortage is one Professor.'
30. The following table prepared by the Inspector indicates the required staff, staff available and the alleged shortage :
Deptt./Staff Required Presept Shortage ANATOMYProfessor 1 2 -Reader 1 - - Lecturer 2 1 1 Tutor/Demons 2 2 - BIO- CHEMISTRYProfessor 1 - 1 Reader 1 1 -Lecturer 1 2 -Tutor/Demons 1 2 -
31. The shortage of one Lecturer in Anatomy is no shortage at all for the obvious reason that as against the required strength of one Professor the College has already two Professors and thus the short-fall is more than made up. What is important to notice is that even this shortage of one Lecturer was rectified; a Lecturer in fact has been appointed after due process of selection and he has not yet given the joining report. This has been slated in the supplementary affidavit filed by the Slate Government, the authenticity of which we do not doubt nor has other side expressed any doubts in this regard.
32. Shri Maninder Singh, learned counsel for the Medical Council of Indiaorally stated that the Associate Professor, who has been appointed in the Department of Anatomy by transferring him from Indira Gandhi Medical College, Shimla, has obtained an order of interim stay from the Stale Administrative Tribunal. Learned Advocate General seriously disputed this oral submission. We need not consider this controversy any further as an additional affidavit has been filed that the stay granted by the State Administrative Tribunal has been vacated and the person appointed as Associate Professor of Anatomy was asked to report for duty immediately.
33. In the discipline of Bio-Chemistry although it is mentioned that there is short-fall of one Professor, in the supplementary-affidavit filed by the petitioner-State, it is specifically averred that a Professor has already been appointed after due selection and he has not imme-diately joined because of the ill-health of his wife and any moment, he is likely to give joining report. The affidavit also clearly states that one extra Associate Professor has also been appointed in the faculty of Bio-Chemistry.
34. We now come to the alleged deficiencies in the infrastructure facilities referred to in the Inspector report.
35. So far as the pre-clinical departments of Anatomy, Physiology & Bio-chemistry are concerned, necessary for the first year course, the report of the Inspector, which is at page 106 of the paper-book, explicitly mentions that the departments are 'adequately equipped for 50 admissions as per MCI requirements. The infrastructure mentioned were verified and found to be correct'.
36. The para-clinical subjects are taught from the second year onwards. The State Government has taken adequate steps in this regard. The Director of Medical Education assured the Inspector that the building where at present TB & Chest patients are lodged will be made available for this purpose by moving them to another building within one month. The Inspector has remarked in his report that 'the space thus available will be more or less adequate for the para-clinical departments'.
37. In respect of 'the clinical material andoccupancy in the hospital', the Inspector recorded his opinion :
'Teaching beds required for 50 admissions at inception are adequate. The clinical material, OPD attendance and the bed occupancy is also adequate'.
38. Concerning the departments of Anatomy, Physiology and Bio-Chemistry, the Inspector stated that the claim of the State Government that all the departments are well equipped and ready to start classes 'was verified to be true'. All major purchases concerning equipments for basic departments have been made available for verification by the Inspector and the latter made the remarks :
'All basic instruments & equipments required for Under-graduate teaching are available'.
39. There are no infrastructure shortages for starting first year classes. Even with regard to , classes commencing from the second year onwards, the report of the Inspector shows that in every respect proper and adequate arrangements are almost complete.
40. There is an adequate space for Central Library and the general reading room accommodates 30 to 40 students, according to the Inspector's report. Sanction was also given for purchase of books worth Rs. 18.00 lakhs for the library and a Committee has already been appointed, the members of which have gone to Delhi to buy the books.
41. The report of the Inspector shows that hostel facilities are available and buildings have been purchased to provide accommodation to the staff and the allotments in favour of the staff members will be made within a month.
42. For conducting clinical classes, which will be necessary from second year onwards two Lecture theatres are available. On the question of improvement of the emergency/casualty department, the Inspector remarked that :
'An adequately equipped casualty with 5 emergency beds has been, provided. A C.M.O. (Casualty Medical Officer) is posted round the clock on 8 hourly duty'.
43. By. spending Rs. 17.00 lakhs one minibus and another large bus and also three extra vehicles for carryipg the students and the staff have, been purchased was also noted by the Inspector.
44. The Clinical Laboratories, which are required after the first year course is over, ac-cording to the Inspector 'are being gradually improved by additional staff and equipment'.
45. Out of the 21 disciplines, as already noted, in respect of the 3 disciplines, which are taught in the first year, there is neither shortage of staff nor shortage of infrastructure. In regard to present deficiencies the requirements from the second year onwards even according to the report of the Inspector, are not such which cannot be complied with by the time the first year course is over. Huge expenditure has already been incurred by the State to provide for the requirements from second year onwards. The project plan does not envisage coming into being of the infrastructure at one time for accommodating all the students covering the entire duration of the four years. It is neither required nor contemplated. Necessarily, when the College is started teaching of subjects should begin from the first year and when the first year batch moves to the second year, teaching and infrastructure facilities should be made available. What is required for the entire four year period cannot be expected to be made available in the first year itself. Even so, the State Government, out of the total outlay of 118 Crores for the entire period has already incurred huge expenditure to make the project a successful one.
46. Out of 21 disciplines, after excluding the three disciplines in which as we have already noticed the available staff is sufficient, the shortage in regard to the rest of 18 departments is only 6 as against the total requirement of 31. In other words, overwhelming teaching staff required for the second year onwards also has already been made available.
47. The Medical Council of India made regulations on 20th September, 1993 in exercise of powers under Section 10-A read with Section 33 of the Act relating to establishment of new Medical Colleges, opening of higher courses of study and increase of admission capacity in medical colleges. Sub-section (2) (a) of Section 10-A requires that the applicant should submit a scheme to the Central Government and the same shall be referred by the Central Government to the Medical Council for its recommendations. The regulations incorporate the scheme prescribing qualifying criteria for grant of permission. Paragraph 6 of the 'qualifying criteria' of the scheme says
'that the applicant has a feasible and time bound programme to set up the proposed medical college along with required infrastructural facilities including adequate hostel facilities for boys and girls and as prescribed by the Medical Council of India, commensurate with the proposed intake of students, so as to complete the medical college within a period of four years from the date of grant of permission'.
48. It only contemplates that the applicant should have a time bound and feasible programme for setting up a medical college and the required infrastructural facilities should be commensurate with the proposed intake of students and the whole thing should be completed within a period of four years from the date of grant of permission. It is, therefore, clear that the infrastucture facilities required must be completed within a period of four years from the date of grant of permission.
49. So far as grant of permission is concerned, the scheme, in accord with the statute lays down that the Letter of Intent will be given first by the Central Government on the recommendations of the Medical Council of India incorporating con-ditions for compliance and that formal permis-sion will be granted after the conditions are complied with. The permission should include a clear-cut definition of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipment, faculty and staff etc. before admitting the Ist batch of students. The permission should also indicate the annual targets to be achieved by the applicant commensurate with the intake of students during the following years. The permission is granted initially for a period of one year and will be renewed on yearly basis subject to verification of the achievements of annual targets and the process will be continued till such time the establishment is completed and a formal recognition is granted by the Medical Council of India.
50. An examination of the regulations makes it abundantly clear that they neither contemplate nor require that the infrastructure for the entire course of four years should be made available at one time.
51. What are the factors the Medical Council of India should bear in mind while making its recommendations and the Central Government while approving or dis-approving the scheme, are clearly specified in Clauses (a) to (f) of Subsection (7) of Section 10-A of the Act. The capacity of the applicant to start the College, its financial resources the facilities in respect of staff, equipments and accommodations, hostel facilities, man-power in the field of practice of medicines are the factors comprehended in Sub-Section (7), which must be borne in mind by the Medical Council of India when it makes a recommendation to the Central Government in respect of an applicant for grant of permission.
52. The requirements contained in Sub-section (7) of Section 10-A of the Act are mandatory in nature which admit of no departure.
53. When the applicant is the State Government with enormous resources at its command both in regard to finance and infrastructure facilities, it must be presumed, in the absence of good reasons to the contrary, that it would discharge its Constitutional obligation. The object behind seeking permission for setting up the College is a bona fide and laudable one and the work completed by the date of the third inspection was far more than what is required for granting initialpermission for one year are very relevant factorsthat ought to have been considered by the Executive Committee. Apart from this, the primordialfact is that public funds have been expended in alarge measure in pursuit of promotion of publichealth. We, therefore, think it to be Tight andproper that unaffected by sterile legalism, evenremotely, the questions at issue call for determination.
54. The decision of the Executive Committee not to recommend for permission, which we have already extracted supra, shows that the factors found in Sub-section (7) were not at all taken into consideration. The Executive Council's recommendation was the inference from 'the deficiencies in the staff and othe rinfrastructure facilities' pointed out in the report of the Inspector. We have already adverted to the report of the Inspector which so far as the first year of the course is concerned, cannot be said to contain any deficiencies at all, and in regard to the facilities for the subsequent years the requirement of the scheme is not that at one time all the facilities should be made available.
55. Whether really there are deficiencies warranting recommendation to the Government of India not to grant permission to start the first year course and whether the preliminary require-ments for admitting the first batch of students have been met as warranted by the scheme did not engage the intention of the Executive Committee; at any rate it is difficult to discern the same from the resolution of the Executive Committee.
56. When there is a time bound programme and initially permission was for one year the approach of the Executive Committee ought to have been from this angle. Whether or not the requirements relatable to the subsequent years were complied with in toto by the applicant could not be a valid factor in considering the scheme for the purposes of making a recommendation to the Central Government for grant of permission.
57. The Executive Committee, we are, therefore, constrained to say was swayed by only one consideration, namely, that there are deficiencies in staff and other infrastructure facilities without applying their mind as to the nature of deficiencies and whether really they are deficiencies at all for granting initial permission for one year.
58. The Medical Council of India being a statutory body its discretion is circumscribed by the authority granted by the Statute. The Executive Committee, the restricted representative body of the Council reached the conclusion totally contradicted by the facts found in the report of the. Inspector. It is, therefore, a case of total misdirection as to the entire gamut of the fact situation.
59. The recommendation made by the Executive Committee to the Central Government not to issue letter of permission is based upon : 'there are deficiencies in the staff and other infrastructure facilities, as pointed out by the Inspectors in the report'.
60. For the purpose of considering the legality of the action of the Medical Council of India, the deficiencies in staff and other infrastructure facilities must be assumed to be facts pointed out in the Inspector's report from which the inference or conclusion was drawn by the Executive Committee that recommendation should not be made to the Government of India for grant of permission. The Inspector's report is referrable to the third one submitted in November, 1997, which was not evaluated or examined by the Executive Committee with reference to the aspect for recommending permission initially for one year. Whether the deficiencies pointed out in the Inspector's report pertain to the requirements to be satisfied within the four year period allowed or they are of the threshold stage warranting rejection of permission is a matter germane and very relevant which had escaped the attention of the Executive Committee. The inference drawn by the Executive Committee that there should be no recommendation for grant of permission is in our view whotjy erroneous and clearly unreasonable. The matters which are germane and relevant have been over looked and matters which ought to have been eschewed from consideration entered into the estimate of the Executive Committee. The discretion conferred upon the Medical Council is neither absolute nor unlimited. It must be used in accord with the intention of the statute which conferred it and failure to do so must result in the action being voided on the ground of improper exercise of discretion (vide Padfield v. Minister of Agriculture, Fisheries and Food, (1968) 1 All ER 694, House of Lords). The recommendation, therefore, is clearly unsustainable in law.
61. Speaking for the Court of Appeal. Lord Greene said in Associated Provincial Piclure Houses Ltd. v. Wednesbury Corporalion, (1947) 2 All ER 680 :
'.....a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'.' (at pages 682-683).
62. Lord Brightman in his speech in the Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 explaining the scope of judicial review said :
'Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.....
Other considerations arise when an administrative decision is attacked on the ground that it i,s vitiated by self-misdirection, by taking account of irrelevant factors or neglecting to lake account of relevant factors.....'
Lord Green's views were accorded judicial assent by the House of Lords.
63. Although we have not been referred to these precedents by the learned counsel for both sides, we thought fit to advert to the legal position supported by British precedents.
64. The English Courts always adopt conservative approach in the application of administrative law principles for voiding actions of the executive. Technicalities to a very large extent are at the back of the mind of the British Court in judging the legality of an impugned action of the executive falling within the domain of public law. For this a very realistic reason was given by a well known American author on Constitutional Law :
'British judges are acutely conscious of the fact that they are at the mercy of a sovereign Parliament, which can quickly clip their wings if they fly too high. By instinct they keep close to solid legal ground'.
65. Contrasting the approach of the British Judge with that of the American Judge, who enjoys total independence from legislative control, the same author said :
'The American Judge may seem high-handed and self-confident 'aggressive' is a favourite commentators' term) compared with that of the British Judge, whose natural inclination, as mentioned earlier, is to shelter behind technicality'.
(Bernard Schwartz : Administrative Law -- A case book, Page 543).
66. We are advening to this position not from any desire to inject abstract academic vagueness in the adjudication of the concrete issues, but only to emphasise the point that the Constitu-tional Courts in our country being fully insulated from interference by the other two wings of the State -- Executive and Legislature -- should adopt a broader activist approach in deciding public law issues.
67. The principles and precedents of British public law mentioned supra are pan of our public law (Vide : (1994) 6 SCC 651 : (AIR 1996 SC 11). Tata Cellular v. Union of India).
68. It was urged by Shri Maninder Singh, learned counsel for the Medical Council of India that the Government of India has only acted upon the recommendation of the Medical Council of India, the expert body under the Act, consisting of highly competent Doctors, who are best fitted to tender correct advice. He stressed the aspect that this Court has neither the authority nor expertise to examine the correctness of the recommendation of the Executive Committee. At the same time he has not disputed the legal position that if the recommendation of the Medical Council of India falls to the ground, the consequential decision of the Government of India also fails, he has also referred us to certain rulings.
69. Krishna Priya Ganguly v. University of Lucknow, (1984) 1 SCC 307 : (AIR 1984 SC 186) concerns admissions to Post-graduate Medical courses. It lays down, inter alia, the proposition that in exercise of the jurisdiction under Article 226 of the Constitution of India, the High Court cannot ignore the rules framed by the admission Committee in respect of admissions to . medical courses, Where an academic body has applied the rules in a bona fide manner to all the students equally, the High Court should not interfere with the internal working of the academic body.
70. J. R. Raghupathy v. State of A.P., (1988) 4 SCC 364 : (AIR 1988 SC 1681) is an oft cited precedent for the proposition that administrative instructions not having statutory force cannot be enforced by issue of a writ in the nature ol mandamus.
71. The Constitutional Courts in our country in exercise of their power of judicial review cannot indulge in policy making nor can issue directions to the Legislature or Executive to enact a particular law is the principle laid down in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. The Court should remain within the self-imposed limits and that (at p. 1906 of AIR) :
'the Constitution does not permit the Court to director advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.' (Per Kuldip Singh, J.).
72. The Court cannol issue a direction to a statutory authority to exercise discretion in a particular manner not expressly required by law. was highlighted by the Supreme Court in U.P State Road Transport Corporation v. Mohd. Ismail, AIR 1991 SC 1099.
73. If an education institution grants admission without requisite recognition and the students seek entry into such an institution with their eyes wide open, it would not be permissible for the Court to direct the University to hold examination for the benefit of such students was the opinion expressed by the Supreme Court in Dental Council of India v. Harpreet Kaur Bal, 1995 Supp (1) SCC 304 - a case concerning admissions to dental courses.
74. The settled legal principle that in the exercise of power under Article 226 of the Constitution the High Court cannot go into the merits, of a controversy like an appellate authority and that in Ihe exercise of power of judicial review there is no room for benevolence was reiterated by the Supreme Court in Haryana Urban Development Authority v. Roochira Ceramics, (1996) 6 SCC 584.
75. The recommendations of an expert body are entitled to deference, the Supreme Court ruled in Tata Iron & Steel Co. Ltd. v. Union of India, (1996) 9 SCC 709 : (AIR 1996 SC 2462).
76. None of these precedents lays down the proposition that even in the face of procedural impropriety, mis-direction in facts and non-application of mind the opinion tendered by an expert body must be allowed to remain unaffected and that it is immune from interference in an action for judicial review. The parameters of appellate power on facts and the power of review in exercise of writ jurisdiction are fairly well-settled.
77. We have subjected the recommendation of the Executive Committee to strict scrutiny on the touch stone of well accepted principles of public law rooted in binding precedents. Whether one particular building is sufficient or two buildings are required, whether or not one Lecture Hall would do or whether the qualifications possessed by the staff members would be sufficient to get on with the administration of the institution and related matters definitely fall outside the power under Article 226. Fully conscious of this, we have eschewed from our scrutiny matters that fall properly within the ambit of appellate power.
78. Repeatedly Shri Maninder Singh has stressed the aspect that because the Executive Committee consists of expert Doctors, it is impermissible for us to interfere with its recommendation. The thrust of his argument as we could discern, is that the Executive Committee's opinion is immune from interference. This contention, we are constrained to say, is unattractive and unacceptable. We cannot ignore the judicially tested and approved norms governing the exercise of power of judicial review, and what we have done is nothing more than the application of the existing principles of law to the fact situation emerging from the record. We are inclined in this context by way of response to the repeated assertions of Shri Maninder Singh as to the immunity from judicial scrutiny of decisions made by expert bodies, to point out the rationale behind the exercise of power of judicial review to interfere with such decisions. Instead of expressing the same in our words, we think it best to quote Professor Bernard Schwartz as to the limitations of the expert and the subjection of his opinion to the trained scrutiny by a non-expert judge :
'The utilization of administrative expertness does not, however, militate against control by the courts. 'The well-learned lesson of democratic government with 'experts' is that they should be kept on tap but not on top'. In ensuring this subordination the nonexpertness of our courts plays an essential part. It is the great virtue of our judicial process that it employs men not specialists in any one field of legal endeavour but capable by disposition and training of dealing with all types of cases. 'The judicial process', as an eminent American jurist has put it, 'requires a different kind of expertise - the unique capacity to see things in their context. Great judges embrace within their vision a remarkably ample ' context. But even lesser men, presiding in courts of wide jurisdiction are constantly exposed to pressures that tend to expand the ambit of their ken'. The limitations of the expert -- inability to see beyond the narrow confines of his own experience, intolerance of the layman, and excessive zeal in carrying out his own policy regardless of the cost to other, broader interests of. society --are subjected under our system tp the trained scrutiny of the nonexpert judge, who, unhindered by the professional bias of the specialist, is able to take a broader view than that of merely promoting administrative policy in the case at hand without counting the ultimate cost.'
(Administrative Law -- A case book by Bernard Schwartz, pages 658-659)
We think, we have done, what the judicial process expects of us to do -- 'seeing things in their context....., unhindered by the professional bias of the specialist..... to take a broader view'.
79. In the unreported case No. I.A. No. 5 in Special Leave Petition No. 18168-68A of 1994 in Baba Mungipa Medical College v. Government of Tripura, dated 3-11-1997, (since reported in AIR 1997 SC 3999), the petitioner was a private trust which established a medical college in Tripura without recognition and without rectifying the deficiencies in regard to infrastructure facilities pointed out by the Medical Council of India and they include lack of land for construction of building and lack of proper building. An attempt was made to secure judicial assent for admission of students. Rejecting the prayermade in this regard a two judge bench of the Supreme Court pointed out that the college may apply to the Medical Council for further inspection and il is for the latter to decide whether the college had all the facilities for imparting proper medical education. After perusing the report of the Medical Council of India the Supreme Court held that (at p. 4000 of AIR) :
'On the facts brought out in the report, no direction can be given to the Medical Council of India or the Union of India to take any step for granting recognition to the college.'
80. In the face of this fact situation, the Supreme Court concluded :
'.....Admission of first year students to the college even before grant of recognition by the Medical Council of India or affiliation by the University was a very irresponsible step.'
81. Citing this case Shri Maninder Singh, learned counsel, endeavoured to approximate the facts of that with the instant case. We entirely disagree with the submissions of the learned counsel on this aspect. The present case stands entirely on a different footing. The greed of a private organisation to amass wealth by commercialising medical education can by any stretch of legal reasoning or interpretative process be equated with the Constitutional duty of the State to protect the health of the people and provide medical education to the students who otherwise lack financial resources. The principle that in judging the validity of a legislation, no motive can be attributed to a law making body though does not apply in all its rigour to State actions in other spheres we think, applies in its spirit to welfare activities taken up by the Stateas mandated in the Directive Principles of State policy. Even the regulations framed by the Medical Council of India fully recognise the fact that the Government as an applicant to establish a medical college stands on a quite different footing, indeed on a higher footing vis-a-vis an applicant in the private sector. Paragraph 10 of the qualifying criteria in the scheme formulated by the Medical Council of India as part of the regulations under Section 10-A speaks of the duty of an applicant to furnish performance of bank guarantees in a sum of Rs. 1 crore in a case of annual admission of 50 students and one and a half crore for admission of 100 students and two crores in case of 150 annual admissions and like-wise in respect of infrastructure facilities the performance bank guarantee ranges from three crores to 7 1/2 crores depending upon the number of beds, the teaching hospital wants to establish, Excluding government from the purview of this obligation an exception is provided to paragraph 10, which is in the following terms :
'Exception - The above condition shall not apply to applicants who are State Governments provide that they shall give an undertaking to provide funds in their Plan Budget regularly till facilities are fully provided as per the time bound programme indicated by them.'
82. The record clearly shows that the State Government had already given the necessary undertaking to provide funds in the Plan Budget as obligated by the aforesaid exception; about this there is no controversy. Any attempt to portray the State Government as an adventurist in the commercialisation of medical education would be a totally unrealistic approach.
83. The Constitutional Courts are and ought to be guided by practical considerations with reference to ground realities was taken note of by the Supreme Court in A1-Karim Educational Trust v. State of Bihar, (1996) 8 SCC 330 : (AIR 1996 SC 1469), a case concerning establishment of a medical college. While stating that grant of affiliation is the function of the State after consulting the Medical Council of India the Supreme Court cautioned (at p. 1473 of AIR) :
'However, if it is found that the affiliation is being withheld unreasonably or the decision is being prolonged for one reason or the other, this Court would, though reluctantly, be constrained to exercise jurisdiction. We must make it clear that we are not diluting the importance of fulfilling the essential prerequisite set by the Medical Council before granting recognition. The facts of this case are very special and exceptional.'
84. After judicially noticing the exceptional facts and unreasonableness of insisting upon the fulfilment of 'all requirements at a stretch and the desirability of adopting a practical way' and formulating the test 'whether there exists minimal and satisfactory requirements to keep the matter going', the Supreme Court in emphatic terms depreciated attempts to adhere to 'a wooden rule' by approaching the problem whether 'better arrangements will render the set-up more efficient and more satisfactory'. Minor deficiencies call for rectification and they can be set right and a total, practical and overall urgent action must be taken was highlighted by the Supreme Court (AIR 1996 SC 1469 at p. 1474) :-
'(j) It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view in the light of the latest tabular statement filed along with the affidavit dated 4-9-1995. Material placed before the Court goes to show that there has been 'substantial' though not literal compliance with the deficiencies pointed out in the latest report dated 28-6-1995.
(k) Lapse of time and the turn of events call for urgent action and any delay on that score will entail untold hardship to the students and the Institution.'
85. In the view we have taken as to the legal infirmities afflicting the recommendation of the Executive Committee of the Medical Council of India, which formed the foundation for the Government of India to negative the request of the State Government, we think it unnecessary to examine the contention advanced by the learned Advocate-General relalablc to legitimate expectations of the State Government that it would be allowed to go ahead with the scheme as all the requirements necessary for commencing the classes for the first year are completed.
86. What relief we should grant in this case after setting aside the recommendation of the Medical Council of India? Should we remit the matter to the Government of India for further consideration or any other course is open by which effective justice could be rendered? Our discussion supra as to the nature of the regulations, the requirements to be met with, the extent to which the State Government has complied with the requirements and there being no deficiencies at all with regard to starting of first year M.B.B.S. Course, no purpose will be served by remitting the matter to the Government of India which in turn will have to consult Ihe Medical Council of India for according 'formal permission'. That would only enlail furtherdelay which is obviously avoidable; it serves no purpose either from legal or factual point of view as regards initial permission for the first year. Whether staff and infrastructural facilities are available for the first year no further facts need be found. What is required is only a formal grant of permission without any further enquiry. Even so we would have in order to adhere lo rigid formalistic requirement of enabling the statutory authority to perform a rouline mechanical function resorted to that course of action, but the existing situation does not brook any further delay. The apprehension expressed by the learned Advocate-General appears to be real. Eversince the results of the entrance test were published in July, 1997 the successful studenl have been eagerly waiting foradmission. Unless the 50 seats in Dr. Rajendra Prashad Medical College at Tanda in question are filled, the scats in Dental College and Ayurveda College cannot be filled. As the classes have already been started in the Indira Gandhi Medical College, Shimla in the month of September, 1997 any further delay with regard to the starting of classes in Dr. Rajendra Prashad Medical College, Tanda will result in one academic year going waste not only in respect of Tanda College but also Dental and Ayuveda Colleges. This will have larger deleterious affects : the unrest among the students is likely to disturb the even tempo of the society. The amount speni by the Stale is quite huge having regard to its limited resources, the monthly salaries bill on the teaching and other staff is ten lakh rupees. These special facts propel us to depart from the usual relief which would otherwise have been granted in the normal course.
87. For these reasons, the recommendation of the Executive Committee of the Medical Council of India in the communication addressed by it to the Secretary to the Government of India, Ministry of Health and Family Welfare, New-Delhi on 29-12-1997 in No. MCI-34(41)/97-Med./29972 and the consequential decision of the Government of India not to grant formal permission to the Stale Government to start Dr. Rajendra Prashad Medical College at Tanda as averred in paragraph 15 of the reply-affidavit filed on behalf of the Union ol India are set-aside. The first respondent -- Union of India is directed to accord permission forthwith to the petitioner initially for one year for the establishment of Dr. Rajendra Prashad Medical College at Tanda in District Kangra in Himachal Pradesh to commence the first year classes ol M.B.B.S. course and until the formal orders in this regard are issued the pelitioner is at liberty to proceed with the admissions and start the classes. The admissions given shall be in accordance with the norms governing selection of candidates on the basis of the combined entrance test already held. Any other direction in the given situation, we think would be unjust and inequitable. Public interest, as we comprehend it, warrants no direction other than the present one.
88. A writ will issue accordingly. No costs.
89. Gratefully acknowledging the assistance rendered by Shri Indar Singh, the learned Advocate General for the petitioner-State and Shri Maninder Singh, learned counsel for the Medical Council of India, we part with the case.