(Amended Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records relating to the Minutes of Meeting of the Board of Governors of the Medical Council of India held on 12.12.2011 and quash paragraph 4 of the Minutes insofar as it requires submission of a fresh Essentiality Certificate where the existing Essentiality Certificate is more than three years old and further quash the consequent order of the respondent in Proceedings No.MCI-37(1)/2012-Med/114890 dated 29.6.2012 and consequently direct the respondent to reconsider the application made by the petitioner for increase of MBBS seats from 100 to 150 without insisting upon a fresh or revalidated essentiality certificate.)
The prayer as amended in the writ petition is to quash paragraph 4 of the Minutes of Meeting of the Board of Governors of the Medical Council of India held on 12.12.2011 and the order of the Medical Council of India, dated 29.6.2012 and direct the respondents to reconsider the application made by the petitioner Medical College for increase of MBBS seats from 100 to 150 without insisting upon fresh or re-validated essentiality certificate.
2. The brief facts necessary for disposal of this writ petition as could be seen from the affidavit filed in support of the writ petition are as follows:
(a) Petitioner Medical College and Hospital is the Constituent of Bharath University and it applied for the status of Deemed Univerity to the first respondent. The said status of Deemed university was granted under section 3 of the UGC Act.
(b) The petitioner Bharath University was given permission for starting PG courses by the Central Government on the recommendations of the MCI during the year 2009. The institution was granted essentiality certificate for an annual intake of 100 students in MBBS course from the academic year 2003-2004 and MCI granted permission under Section 10A of the Indian Medical Council Act, 1956, in September, 2003. The Medical College was brought under the ambit of the Bharath University.
(c) In the year 2007, petitioner applied to the Government of Tamil Nadu for the grant of essentiality certificate for increasing the intake capacity in the first year MBBS course from 100 to 150. The Government of Tamil Nadu, after inspection, granted essentiality certificate for the said increase of intake by letter dated 30.8.2007 after considering the viability of the petitioner college, the financial back ground of the sponsoring Trust of the petitioner Medical College, as well as the infrastructure provided by the petitioner College to accommodate 150 students every year. The Central Government also granted renewal of permission year after year for admission of 100 students from 2003-2004.
(d) The petitioner management, in terms of the essentiality certificate issued for the increase of intake, submitted the proposal before the MCI for the year 2009-2010 before the Central Government. Consequently the MCI inspected the college and pointed out certain deficiencies. According to the petitioner, the proposal was not pursued for the year 2009-2010 due to administrative reasons.
(e) On 26.8.2010, petitioner again submitted an application to MCI for increasing the intake from 100 to 150 in the first year MBBS course for the academic year 2011-2012, along with essentiality certificate issued by the State Government and consent of affiliation, issued by the Deemed University. The MCI, through an inspection team, inspected the petitioner College on 5th and 6th April, 2011. On 5.5.2011 MCI pointed out certain deficiencies and requested the petitioner to file its compliance report within a period of two weeks along with a demand draft for Rs.3 lakhs for verification of compliance.
(f) On 2.6.2011 the respondent directed the petitioner to submit compliance report on or before 4.6.2011 as the cut-off date for the grant of permission was 15th June, 2011. According to the petitioner, for 2011-2012, a compliance report was submitted on 4.6.011 before the respondent. Again on 22.6.2011 petitioner requested the respondent to consider the grant of permission for the increase of intake for the year 2011-2012, in the event, the last date for granting letter of permission was extended upto 30th June, 2011 for 2011-2012. A demand draft for a sum of Rs.3 lakhs was also sent, which was acknowledged by the respondent on 28.6.2011.
(g) On 4.7.2011 petitioner received a letter dated 30.6.2011 from the respondent stating that the compliance report was not submitted before 4.6.2011 and there is no provision under the MCI Act and Regulation to keep the proposal pending with the Council for the next academic year and the petitioner was advised to apply afresh for the academic year 2012-2013.
(h) It is the contention of the petitioner that the application dated 22.6.2011 submitted for the increase of intake was not returned and the said application is kept pending. The said communication having been received, petitioner submitted representation to the Central Government on 3.8.2011 and requested for consideration of the scheme of proposal from the academic year 2012-2013 for the increase of intake.
(i) The Central Government, by letter dated 24.8.2011 forwarded petitioner's representation dated 3.8.2011 to the respondent for necessary action. Another representation was sent by the petitioner on 24.8.2011 for consideration of its proposal for the increase of intake from 100 to 150 from the academic year 2012-2013 along with the essentiality certificate already obtained, with fresh consent of affiliation by the Deemed University with a demand draft for Rs.4 lakhs towards processing fee.
(j) On 23.1.2012 the respondent sent an E-Mail stating that the petitioner had not enclosed the year-wise targeted time bound programme and also directed the petitioner to submit the documents along with a new revised essentiality certificate as per Form-II, within two weeks from 23.1.2012. The petitioner enclosed the year-wise targeted time bound programme along with a copy of application dated 24.8.2011 with a revised consent of affiliation.
(k) On 23.5.2012 the respondent sent a letter informing the fact that the essentiality certificate having been obtained three years ago from the state authority, revalidated essentiality certificate has to be produced and on 29.6.2012 the proposal was rejected for the increase of intake from 100 to 150 for the year 2012-2013 on the ground that new essentiality certificate or a re-validated essentiality certificate has been submitted by the petitioner for granting approval and the petitioner was informed that it can apply afresh for the next year i.e, 2013-2014 as there is no provision to keep the proposal pending in the Council Office.
(l) The order dated 23.1.2012 was issued based on the minutes passed by the Board of Governors of the Medical Council of India, held on 12.12.2011, particularly para 4, which states that fresh essentiality certificate is to be furnished by the Colleges seeking approval of prior permission for starting a new course or for increasing the intake, if the existing essentiality certificate produced is more than three years old. The said minutes dated 12.12.2011, more particularly para 4 and the consequential proceedings dated 29.6.2012 are challenged in this writ petition contending that the essentiality certificate already issued is without prescribing any time limit and the same is valid for getting increase of intake.
3. The main contention raised in the writ petition is that the Board of Governors of Medical Council of India is not vested with any power to pass minutes seeking to submit fresh essentiality certificate, if the existing essentiality certificate is more than three years old. Neither in the MCI Act nor in the regulations framed, such a condition is stipulated. Hence the resolution dated 12.12.2011 as well as the consequential order issued by the respondent on 29.6.2012 are liable to be set aside and the petitioner is entitled to get additional intake of MBBS seats from 100 to 150 without revalidating the essentiality certificate.
4. The respondent has filed counter affidavit contending that the essentiality certificate submitted by the petitioner College was issued by the State Government on 30.8.2007 which is now five years old. The earlier application for the increase of intake on the basis of the essentiality certificate issued on 30.8.2007 has already been rejected and the purpose of demanding fresh essentiality certificate or getting it re-validated by the State Government is to ensure that the State Government is still ready to undertake the responsibility in case the petitioner College fails to create infrastructure for the Medical College as per the MCI norms and fresh admissions are stopped by the Central Government, and the State Government will take the responsibility of the students who are already admitted in the college. Petitioner College having not obtained a new or re-validated essentiality certificate in spite of granting time, its claim could not be entertained for the increase of intake for this academic session. The object behind the necessity to obtain the essentiality certificate from the State Government under para 3 of the MCI Regulation 2000 is that in the event a private management become incapable of setting up the proposed Medical College or impart education therein, such a certificate by the State Government cast an obligation on the State Government to take over the affairs of such a Medical College and discharge the obligation of the private management. While granting essentiality certificate the respective State Government shall take into consideration the local needs. In support of the said contention several judgments of the supreme Court are relied on in the counter affidavit. Another objection raised in the counter affidavit is that the petitioner earlier approached the Honourable Supreme Court by filing writ petition under Article 32 of the Constitution of India for identical relief and as the relief was not granted by the Honourable Supreme Court, the said writ petition was withdrawn by the petitioner. Therefore the writ petition filed for identical prayer before this Court is not maintainable.
5. An additional counter affidavit was filed stating that demanding revalidated essentiality certificate from the writ petitioner is to ensure the desirability and feasibility of a new Medical College/increase of seats and to re-affirm the availability of infrastructure, including clinical materials for the increase of intake.
6. Mr.N.Vijay Narayan, learned Senior Counsel appearing for the petitioner argued that approval for new course or increase in intake is governed under the statutory provisions viz., Indian Medical Council Act, 1956, and the Medical Council of India Regulations issued in the year 2000, which are framed under section 33 of the Act. Under Section 10A(2) of the Act, an institution shall apply for permission under sub-Section (1) with the Central Government and the Central Government shall refer the scheme to the Medical Council for its recommendations. As per Section 10A(3), on receipt of the scheme by the Council, the Council may obtain such other particulars as may be considered necessary by it from the person or the Medical College concerned. As per Section 10A(4) Proviso, no scheme shall be disapproved by the Central Government, except giving the person or college concerned a reasonable opportunity of being heard. As per Section 10A(7), the Council while making its recommendations either approving or disapproving the scheme, shall consider certain factors, which are mentioned in clauses (a) to (g). Section 33 of the Act deals with power to make Regulations for the purpose of carrying out the provisions of the Act, with the previous sanction of the Central Government. The learned Senior Counsel further submitted that the Regulations framed under Section 33 nowhere mandates revalidation of the essentiality certificate already given, after expiry of three years or more. Therefore the decision taken by the Board of Governors to get revalidation of the essentiality certificate after three years of its issuance is without jurisdiction and the petitioner having been issued with essentiality certificate and pursuing the request for the increase of intake, its request is entitled to be considered, without revalidation of the essentiality certificate from the State Government.
7. Mr.R.Thiagarajan, learned Senior Counsel appearing for the respondent submitted that by Amendment Act 32 of 2010, the Board of Governors were ordered to exercise their powers and perform the functions of the Medical Council of India with effect from 15.5.2010 and the Board of Governors in its meeting held on 12.12.2011 took a decision to demand revalidation of essentiality certificates after three years from the date of issue of essentiality certificate for considering the grant of approval for new course or for the increase of intake. The learned Senior Counsel further submitted that neither the MCI Act, nor the Regulation which the petitioner is relying is mentioning the period for which the essentiality certificate holds good and in the absence of any statutory provision, fixing the time limit, the Board of Governors is entitled to issue administrative instruction/resolution to fill up the gap. The learned Senior Counsel also cited some decisions of the Supreme Court in support of his contentions.
8. In reply, the learned Senior Counsel appearing for the petitioner submitted that as per MCI Act, 1956, Section 2(g), the word 'prescribed' means 'prescribed by regulations' and therefore unless and until the Regulations are amended with previous sanction of the Government of India, no new condition can be imposed for the grant of approval of course or for additional intake.
9. I have considered the rival submissions made by the respective learned Senior Counsels for the petitioner as well as respondent.
10. The issue to be decided in this writ petition is as to whether the decision of the Board of Governors, MCI dated 12.12.2011 insisting for revalidation of essentiality certificate issued by the State Government after expiry of three years for granting approval of additional intake of students from 100 to 150 is justified or not.
11. The petitioner College was granted permission in September, 2003, for admission of 100 students in MBBS course annually from the academic year 2003-2004 under Section 10A of the Indian Medical Council Act, 1956. The college was brought under the ambit of Bharat University (Deemed University) by proceedings dated 3.1.2004. The College was granted permission for starting Post Graduate course by the Central Government on the recommendations of the MCI during 2009. The petitioner College applied to the Government of Tamil Nadu for the grant of essentiality certificate for increasing the intake capacity from 100 to 150 in the first year MBBS course in the year 2007. The State Government by order dated 30.8.2007 granted essentiality certificate for the increase of intake, considering the availability of 870 bedded hospital and adequate clinical material as per the Medical Council of India norms as well as considering the viability as well as financial status of the sponsoring Trust and infrastructural facilities provided. The petitioner submitted proposal before the Central Government seeking permission for the increase of intake from 2009-2010, and an inspection was made by the MCI team and certain deficiencies were pointed out. The deficiencies were not complied with and the matter was not pursued by the petitioner management for that year. Again an application was submitted to the respondent on 26.8.2010 for the increase of intake from 100 to 150 in the first year MBBS course for the academic year 2011-2012. Again an inspection was made by the inspection team of the respondent on 5th and 6th April, 2011. Based on the said inspection a letter of rejection was issued by the respondent on 27.4.2011. The same was challenged in W.P.No.24051 of 2011 and the said writ petition is pending before this Court.
12. Again on 5.5.2011 petitioner was directed to file compliance report within two weeks along with a demand draft for Rs.3 lakhs towards verification of compliance. The cut-off date for the grant of permission for the academic year 2011-2012 was 15th June, 2011. It is the contention of the petitioner that compliance report was submitted on 4.6.2011 and another letter along with demand draft for Rs.3 lakhs was sent on 22.6.2011 as the last date for the grant of letter of permission was extended upto 30.6.2011 for the year 2011-2012. The respondent sent a reply on 30.6.2011 stating that the compliance report was not submitted on or before 4.6.2011 and there is no provision to keep the proposal pending for the next academic year. On 3.8.2011 the petitioner submitted representation to the Central Government and requested to consider increase of intake from the academic year 2011-2012, which was forwarded to the Central Government to the respondent on 3.8.2011 and by another communication dated 24.8.2011 the petitioner requested the respondent to keep the proposal for the academic year 2012-2013. Petitioner also sent a demand draft for Rs.4 lakhs towards processing fee.
13. For the representation dated 7.6.2012 respondent herein gave a reply stating that the request of the petitioner was reconsidered and the Board of Governors decided not to issue letter of permission for increase of intake from 100 to 150 for the academic year 2012-2013, as new essentiality certificate nor a validated essentiality certificate was submitted by the petitioner. Further, petitioner was informed that it can apply afresh for the next academic year i.e, 2013-2014 as there is no provision to keep the proposal pending. The said order alone was challenged initially and in the counter affidavit filed by the respondent, the decision of the Board of Governors dated 12.12.2011, particularly paragraph 4 was relied on to justify the said order. Hence petitioner filed M.P.No.3 of 2012 and prayed for amending the prayer in the writ petition challenging the decision dated 12.12.2011 and the consequential order dated 29.6.2012. The said amendment was ordered on 3.9.2012 and additional counter affidavit was directed to be filed by the respondent and the same was also filed by the respondent on 24.9.2012.
14. In the counter affidavit filed it is stated that revalidating the already obtained essentiality certificate or to get new essentiality certificate, was only to get a commitment from the State Government to the effect that in the event the private management becomes incapable of setting up the proposed medical college or impart education, the same will cause an obligation on the State Government to take over the affairs of such private medical college and discharge the obligations of the private management. The essentiality certificate issued on 30.8.2007 is now five years old and therefore reaffirmation from the State Government is required.
15. Section 10A of the Indian Medical Council Act,1956 mandates every person to obtain previous permission of the Central Government for establishing a medical college, new course or increase of intake in the existing course. If a scheme is submitted for the said purpose, the Central Government is bound to pass an order within a period of one year from the date of submission of the scheme as per Section 10A(5). Section 10A(7)(g) states that while considering the scheme by the Medical Council for recommending to the Central Government, any other factors as may be prescribed, may also be considered. The Opening of a New or Higher Course of Study or Training (including Post-graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000, also prescribe the procedures and as per Regulation No.3(2) the person applying for permission shall enclose a permission letter regarding the desirability and feasibility for opening a new or higher course in the Medical College/Institution obtained from the respective State Government or Union Territory concerned and also the letter of the University. Annexure-VII of the Regulation is the prescribed proforma of the essentiality certificate and consent of affiliation to be submitted by the applicant institution. Qualification criteria fixed in Annexure-III by notification dated 29.12.2009 reads as follows:
"3. .........................
3.2 That the Essentiality Certificate in the prescribed format regarding no objection of the State Government/Union Territory administration for opening of New or Higher Course of Study or Training (Including Post Graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (Including a Post Graduate Course of Study or Training) in the medical college/institution and availability of the adequate clinical material as per the Council Regulations have been obtained by the applicant from the concerned State Government Government/Union Territory administration, as the case may be.
3.3 That Consent of Affiliation in the prescribed format with respect to opening of New or Higher Course of Study or Training (Including Post Graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (Including a Post Graduate Course of Study or Training) has been obtained by the Medical College/Institution from the University to which it is affiliated."
4. That the medical college/institution has a feasible and time bound programme to provide additional equipment and infrastructural facilities like the number of staff, space, funds, equipment and teaching beds etc., for increased numbers as laid down in the Medical Council of India Regulations.
5. The ratio of teaching staff and students shall be as laid down in the Medical Council of India Regulations on Minimum Standard Requirements for the Medical College for 50/100/150 Admissions in a medical college for Bachelor or Medicine and Bachelor of Surgery (MBBS) and the Post-graduate Medical Education Regulations for post-graduate admissions.
6. That the maximum number of admissions in MBBS course shall not exceed 150 annually."
On perusal of the above conditions, which were notified on 29.12.2009, it is evident that certain changes were made regarding availability of clinical materials, etc., for starting a new course or for increase of intake in existing course. Essentiality Certificate issued to the petitioner in the year 2007 was prior to the said new norms, which came into force from 29.12.2009.
16. Further, after 2007 several new medical colleges are established in the State and in number of colleges student strength was increased. The requirement of getting essentiality certificate from the State Government for establishment of a new medical college and for increasing the student strength, is well settled. The Hon'ble Supreme Court in the decision reported (2002) 1 SCC 589 (State of Maharashtra v. Indian Medical Association) and the Division Bench of this Court in the decision reported in (2003) 2 MLJ 568 (H.E.T.C. Educational Society v. State of Tamil Nadu) held that Essentiality Certificate is bound to be obtained. In this case, petitioner is not disputing the said proposition.
17. It is also relevant to note that neither in Section 10A of the Indian Medical Council Act, 1956, nor in the Regulations framed, the validity period of the essentiality certificate issued is stated, which means, the Act and Regulations are silent about the validity period of the essentiality certificate once issued. The Board of Governors, which is now functioning as MCI as per Section 3A from 15.5.2010, is therefore entitled to fix the validity period. The only prohibition is, if there is a specific provision, no decision contrary to the same can be taken, except with the approval of the Central Government. It is well settled principle of law that if the Act/Regulations are silent about any issue, administrative instructions can be issued to fill up the gap, provided the same is not in contravention of the statutory provision. Following judgments can be usefully cited for the above said proposition.
(a) In the Constitution Bench decision reported in AIR 1967 SC 1910 : (1968) 2 LLJ 830 : (1968) 1 SCR 111 (Sant Ram Sharma v. State of Rajasthan) in paragraph 7 it is held thus,
"7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
(Emphasis Supplied)
(b) In AIR 1991 SC 2288 : (1992) 1 SCC 20 (Comptroller & Auditor General of India v. Mohan Lal Mehrotra) in paragraph 12 it is held thus,
"12. The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. (See: the observations in Sant Ram Sharma v. State of Rajasthan (AIR 1967 SC 1910). In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India ((1981) 1 SCC 246 : AIR 1981 SC 298)."
(c) In the Constitution Bench judgment reported in AIR 1996 SC 352 : (1995) 6 SCC 1 (Krishna Chandra Sahu v. State of Orissa) in paragraph 31 (in SCC) it is held thus,
"31. Now, power to make rules regulating the conditions of service of persons appointed on Government posts is available to the Governor of the State under the proviso to Article 309 and it was in exercise of this power that the present rules were made. If the statutory rules, in a given case, have not been made, either by Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions (See: Sant Ram Sharma v. State of Rajasthan (AIR 1967 SC 1910.)"
(Emphasis Supplied)
(d) In (1998) 8 SCC 753 (State of Orissa v. Mamtarani Sahoo) in para 11 the Supreme Court held thus,
"11. ............. It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. In the present case, the Rules provide, inter alia, for constitution of a State Selection Board. They are silent on the question of appointment of District Selection Boards and the procedure for inviting applications and selecting candidates by the District Selection Boards. Since the Rules are silent in this regard, administrative instructions have been issued confined to these aspects on which the Rules are silent. Undoubtedly, it would have been far better, had the Government amended the existing Rules to provide for these matters; but that is no ground for preventing District Selection Boards from functioning when there are administrative instructions which supplement these Rules. It has been strenuously urged before us that unless statutory rules are framed in respect of District Selection Boards, no regular appointments can be made by the District Selection Boards. We do not find any merit in this contention looking to the fact that there are administrative instructions which supplement the existing Rules."
(e) In (2008) 4 SCC 171 (Dhananjay Malik and Others v. State of Uttaranchal and Others), in paragraph 15 it is held thus,
"15. The aforesaid ruling has been reiterated in para 9 of the judgment by a three-Judge Bench of this Court in Union of India v. K.P. Joseph7 as under: (SCC p. 196)
“9. Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan3 that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.”
(f) A Division Bench of this Court in the order dated 25.4.2002 made in W.P.Nos.1256 and 5657 of 1999 considered the issue as to whether administrative instructions can be issued in the absence of any statute or rule prevailing, and upheld the direction issued by the Government through Government Order debarring the candidates, who obtained PG degrees through open universities, as not eligible for promotion as Headmasters. The contention that in the absence of any statutory bar or amending the rule, no Government Order could be issued to defeat the right of persons seeking promotion, was not accepted by the Division Bench and upheld the Government order.
18. In this case, the impugned decision of the Board of Governors of the respondent requesting the institution/management to produce fresh essentiality certificate or get the essentiality certificate re-validated after expiry of three years, is having a nexus to the object sought to be achieved viz., whether the increase of intake is necessary at this point of time, whether the institution is having infrastructural and instructional facilities as required as per the present norms, etc., The said decision is not in any manner running contra to the provisions of the Indian Medical Council Act, 1956 and Regulations.
19. In the light of the above findings, which is arrived at based on the above cited decisions, I hold, there is no illegality in the impugned orders. Thus, the issue raised in this writ petition is answered against the petitioner. Consequently the writ petition is dismissed. No costs. Connected miscellaneous petitions are also dismissed.