Hon'ble Mrs. Vijay Lakshmi, J.
The petitioner-Divya Jyoti Institute of Medical Sciences and Research, which is run by a registered society by the name of Jassar Dental Medical Education Health Foundation, had applied for establishment of a new Medical College in Modinagar, Ghaziabad and was issued the essentiality certificate dated 20.12.2011 by the Government of India for conducting M.B.B.S. courses for 150 seats. On 26.9.2013, on an application made by the petitioner-Society, the Chaudhary Charan Singh University, Meerut issued consent for affiliation for the proposed Medical College of the petitioner. On 28.9.2013, the petitioner made an application to the Medical Council of India (hereinafter referred to as the 'M.C.I.') for establishment of new Medical College with annual intake capacity of 150 admissions for M.B.B.S. course for the academic year 2014-15. With the said application, the requisite fees along with detailed project report had been filed by the petitioner.
In response to the application filed by the petitioner, inspection was carried out by the M.C.I. on 8.5.2014/9.5.2014 and the Assessors of the M.C.I. prepared a report with respect to the infrastructure and facilities available with the petitioner-college. Then on 10.6.2014, the M.C.I. informed the respondent no. 1-Union of India that the Executive Committee of the M.C.I. in its meeting held on 3.6.2014 had decided to return the application, recommending disapproval of the application of the petitioner to establish the Medical College. In turn, the respondent no. 1-Union of India vide its communication dated 20.6.2014 required the petitioner to appear for hearing in the matter on 26.6.2014 and produce compliance report of deficiency pointed out by the M.C.I. Pursuant thereto, on 25.6.2014 the petitioner submitted the compliance report stating to have fulfilled/removed all the deficiencies pointed out by the M.C.I. vide its letter dated 10.6.2014. Opportunity of hearing was given to the petitioner on 26.6.2014 when the petitioner explained to the respondent no. 1 that the defects/deficiencies pointed out had been removed. Then on 1.7.2014 the respondent no. 1-Union of India, based on the compliance submitted by various colleges (including the petitioner college) in support of their claim, recommended that in respect to 43 colleges (including the petitioner college), the M.C.I. may review its decision.
In response thereto, on 10.7.2014 the M.C.I. returned the compliance received from the respondent no. 1-Union of India on the ground that as per the decision of the Apex Court in the case of Priya Gupta vs. State of Chandigarh, 2012 (7) SCC 433, after the cut off date which was 15.6.2014, no further recommendation could be made by the Medical Council of India to the Central Government for issuance of letter of permission. Then by communication dated 15.7.2014, the petitioner was informed by the respondent no. 1 that its scheme for establishment of new Medical College for the session 2014-15 stands disapproved in view of the recommendation made by the M.C.I. It further provides that disapproval of the scheme for 2014-15 would not prevent the applicant from submitting a fresh scheme for subsequent academic year.
Challenging the said order dated 15.7.2014, this writ petition has been filed with the further prayer that the recommendation of the M.C.I. dated 10.6.2014 may be set aside and a direction be issued to the Union of India to grant letter of permission for starting a new Medical College and allow the petitioner to take admissions for the session 2014-15. By an amendment application, a prayer for quashing the order dated 10.7.2014 passed by the M.C.I. has also been made.
We have heard Sri Ashok Khare, learned Senior Counsel along with Sri Kumar Anish, appearing for the petitioner as well as Sri Avanish Mishra, learned counsel appearing for the contesting respondent no. 2-Medical Council of India. Pleadings between the contesting parties have been exchanged. Though notice on behalf of the respondent no. 1 has been accepted by Sri Siddharth Saran, Advocate but no one is present on behalf of the said respondent no. 1 when the case has been heard today.
The submission of the learned counsel for the petitioner is that the order/report dated 10.6.2014 passed by the M.C.I. reporting disapproval of the application of the petitioner for establishment of a new medical college was done so without affording the petitioner any opportunity of hearing and was thus in gross violation of the principles of natural justice. It is submitted that Section 10A(3)(a) of the Indian Medical Council Act, 1956 (hereinafter referred to as the 'Act') provides for a reasonable opportunity being given to the college for making a written representation for rectifying defects, if any, specified by the Council. The submission thus is that no such opportunity was given to the petitioner to rectify the defects and the report was submitted ex-parte. It is thus submitted that any decision taken by the Government of India on the basis of such ex-parte report would thus be liable to the quashed. Sri Khare has next submitted that the order dated 15.7.2014, which has been passed by the respondent no. 1-Union of India, is solely based on the report of the M.C.I. dated 10.6.2014 and as such, the said order is liable to be quashed.
It is further submitted by the learned counsel for the petitioner that on 1.7.2014 the Government of India had written to the M.C.I. for reviewing its decision dated 10.6.2014, which was turned down by the M.C.I. vide communication dated 10.7.2014. It is contended that mere fact that the Government of India had sent back the matter to the M.C.I. for reconsideration, itself goes to show that the earlier report of the M.C.I. was not justified. It is also contended by Sri Khare that the ground taken for not submitting a fresh report or reviewing its earlier report dated 10.6.2014 is unjustified. In the order of the M.C.I. dated 10.7.2014 it is stated that as per the directions of the Apex Court in the case of Priya Gupta (supra) no report or recommendation could be submitted by the M.C.I. to the Central Government for issuance of permission after 15.6.2014 and in case the same is done, it would attract proceedings for contempt against a party making such recommendation. It is submitted that in another case, the M.C.I. had, on 12.7.2014, reconsidered its earlier report and made a recommendation to the Government of India for conditional approval for establishment of medical colleges of the State Governments, even though there were large number of defects and short comings found during the inspection made by the M.C.I. It is thus contended that when the M.C.I. could reconsider its decision and make a fresh recommendation in the case of the State Medical Colleges after 15.6.2014, the same could have been done in the case of the petitioner college also.
Learned counsel for the petitioner thus contends that order disapproving the scheme for establishment of a new medical college by the petitioner be set aside, and after fresh inspection and considering the compliance report regarding removal of deficiencies made by the petitioner on 25.6.2014, the M.C.I. be directed to make fresh recommendation on the basis of which the Government of India may be directed to pass fresh orders.
On the other hand, Sri Avanish Mishra, learned counsel appearing for the contesting respondent no. 2-M.C.I. has vehemently argued that after making its recommendation on 10.6.2014, which was based on the inspection made by the Assessors of the M.C.I. (who had visited the college premises of the petitioner on 8th and 9th May, 2014 in the presence of the representatives of the petitioner-college) and had found several deficiencies, which were reported in the communication dated 10.6.2014, there was no occasion for re-considering the said report especially after 15.6.2014, when there was specific mandate of the Apex Court in the case of Priya Gupta (supra) that no recommendation shall be made by the M.C.I. after the said date.
Sri Mishra has further submitted that the question of giving a reasonable opportunity would arise only when there were certain defects pointed out in the application of the petitioner, but in case where there were deficiencies which were found at the time of inspection, there was no requirement for any further time to be granted for removal of such deficiencies, especially when the petitioner college does not dispute that such deficiencies did exist, which include shortage of staff and other facilities, which, according to the learned counsel for the petitioner, had been removed by them and communicated to the Government of India on 25.6.2014. It is contended that after 15.6.2014 even the removal of the deficiencies could not be considered by the M.C.I.
As regards the fresh recommendations having been made by the M.C.I. with regard to the State Medical Colleges vide communicated dated 10.7.2014, Sri Mishra has contended that there is difference between the consideration of cases of private medical colleges and State Medical Colleges, and such recommendations had been made on 12.7.2014 only after the State Government had given an undertaking in writing that such defects/deficiencies would be removed by them.
We have heard learned counsel for the parties at length and have perused the record.
Sri Ashok Khare, learned Senior Counsel appearing for the petitioner has relied on two Division Bench decisions of this Court, one rendered in the case of Subharti Medical College vs. Union of India, passed in writ petition no. 37292 of 2014 decided on 22.7.2014 and the other by the Lucknow Bench of this Court in the case of F.I.S. Maulana Ali Mian Institute of Medical Sciences vs. Union of India, passed in Misc. Bench No. 7504 of 2014 decided on 13.8.2014.
In the first case of Subharti Medical College, the Court was considering the case for grant of permission for 50 additional seats for M.B.B.S. course in the session 2014-15 on the ground that the M.C.I. was required to re-assess/verify the compliance report submitted by it, but had expressed its inability to do so after the cut off date of 15.6.2014. This Court held that the Central Government could have itself examined the compliance report or could have again asked the Medical Council to submit its report, but since this was not done, the Division Bench, after quashing the order refusing to grant recognition, directed the Central Government to take a fresh decision on the scheme submitted by the Medical College after either requiring the Medical Council of India to reassess/verify the compliance report or examining the compliance report itself.
In the said decision, the Division Bench had not considered the decision of the Apex court in the case of Priya Gupta (supra) wherein a time schedule had been provided for making of recommendation by the M.C.I. to the Government of India and the issuance of the permission by the Central Government, which was 15.6.2014 and 15.7.2014 respectively. We are thus of the view that in the teeth of the specific directions of the Supreme court in Priya Gupta's case, the observations/directions issued in the case of Subharti Medical College cannot be a precedent to be followed by us in the present case.
In the case of F.I.S. Maulana Ali Mian Institute of Medical Sciences, the Division Bench of Lucknow Bench of this Court had considered the provisions of Section 10A(3) of the Act and held that since opportunity was not given to the College by the M.C.I. for removing defects, the matter was remanded back to the M.C.I. to re-decide the application/scheme of the petitioner therein taking into account the fact that the petitioner therein had alleged to have removed all the defects.
In the said judgement also, the clear mandate of the Apex Court in the case of Priya Gupta had not been considered wherein it was specifically provided that no recommendations shall be made by the M.C.I. after 15.6.2014.
We may now first consider the judgement of the Apex Court in the case of Priya Gupta (supra). In paragraph 45 of the said judgement, it has been noticed that the statutory provisions require the applications to be filed by a particular date, and certain recommendations to be made by the M.C.I. and the Government of India within the specified time, and finally the recommendations of the M.C.I. to the Central Government for issuance of letter of permission to be made by 15.6.2014 and issuance of letter of permission by Central Government by 15.7.2014. It has thus been observed that such 'statutory Regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may post impediments to the smooth implementation of laws and defeat the very object of the scheme'. In paragraph 47 of the said judgement, it has been specifically provided that any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite penal actions and even liable for action under the provisions of the Contempt of Courts Act and liberty was granted to interested party to take out the contempt proceedings before the High Court having jurisdiction over such institution/State.
Such directions were given by the Apex Court taking into consideration that delay in adherence to the schedule and delay in the commencement of courses etc., thereby encourage lowering of the standards of education in the medical college by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.
The endeavour of the Court should always be to ensure that the interest of education does not suffer. Not adhering the time schedule for recognition or for grant of permission to open a new college, would mean delay in the admission process, which would certainly hamper the cause of education and would also not be in the interest of students, as they would not get the advantage of full academic session or time for attending the classes in the academic session, if admissions are made beyond a particular date. If the question of grant of recognition or permission to open a new medical college is taken after the scheduled date, which in the present case is 15.7.2014, the entire process of admission to the students would be affected, meaning thereby that either proper and meritorious students will not join or if they join, they will not be imparted complete education in the academic session. There is a purpose behind a cut off date being given for grant of recognition to a college and for giving admission to students in a particular academic session, which will be defeated if recognition is permitted to be given after the cut off date provided in the Statute.
Learned counsel for the petitioner has then contended that for the session 2014-15, the admissions are to remain open upto 30.9.2014. Be that as it may, the recognition or permission to open a new college is to be finalized by 15.7.2014. If the process is permitted to go on indefinitely, and if we take a decision to direct for reconsideration of the matter regarding grant of permission and require the M.C.I. to reconsider the matter afresh, whereafter recommendation would be made by the M.C.I. to the Government of India, then delay would occur in taking final decision for grant of recognition and such process cannot be completed in few days or few weeks, but may take a few months, in which case, besides the time schedule for grant of permission to open a new college, the time schedule for grant of admissions would also not be adhered to.
It is not the case of the petitioner that there were no defects or deficiencies, which were required to be removed in the application of the petitioner submitted under the scheme and found at the time of inspection by M.C.I. on 8th/9th May, 2014 in the presence of the representatives of the college. As such, recommendation made by the M.C.I. on 10.6.2014 cannot be said to be erroneous. It is though correct that an opportunity to remove the defects ought to have been given, as provided by sub-section (3) (a) of Section 10A of the Act, but the defects here would mean some mistake or correction, which may be required to be made in the application. We are of the opinion, that deficiencies being there with regard to the mandatory requirement of teaching and non-teaching staff or other facilities in clinical material or laboratory investigations etc. cannot be permitted to be removed after submission of the report by the M.C.I. or opportunity given for such purpose. It would have been a different matter if after inspection on 8th/9th May, 2014, when such deficiencies had been found to be there in the presence of representatives of the petitioner college and the petitioner had removed the same and reported it to the M.C.I. before submission of report by M.C.I., then it could have been considered as to why such compliance by the petitioner made before the cut off date, was not considered by the M.C.I. It is for the college to give all the requisite information with regard to the facilities in its application, and if there were shortcomings, of which the petitioner was well aware of, and had not been removed by the petitioner and information given to the M.C.I. before the cut off date, it would itself make the petitioner college ineligible for consideration. The requirements are known to the applicant-college before filing of the application and if there are deficiencies (not defects) in the same and not removed within time, the same will automatically call for appropriate action/recommendation by the M.C.I., which has been done so in the present case by the M.C.I., vide its report dated 10.6.2014.
Deficiencies in this case are not such which were wrongly pointed out by the M.C.I. The same had to be removed. It would have been a different matter if defects/deficiencies were wrongly pointed out by M.C.I., which were not required to be removed and merely an order was required stating the same had been wrongly or incorrectly noted in the report. In such a case, an exception could have been carved out for reconsidering the matter, as in such a case a wrong report regarding deficiencies could have been said to be reported by the M.C.I.
In the present case, what we notice is that besides there being deficiencies in clinical material or laboratory investigations, there was a huge deficiency of teaching faculty, which included 22% shortage of teaching staff and over 55% shortage of resident doctors. In its compliance report dated 25.6.2014 explaining all the deficiencies, the petitioner college has itself accepted that there was shortfall in the teaching staff and it was only after submission of the report dated 10.6.2014, such new teaching staff had been recruited, evidence of which was given with such compliance report submitted after the cut off date.
The question of violation of principles of natural justice would arise in a case where some explanation is required to be called for from a party. In the present case, such question does not arise as the application of the petitioner college was to be considered by the M.C.I for recommendation on the basis of the information supplied by the petitioner college in its application, and since there is no allegation of wrong consideration of the information supplied by the petitioner in its application, the question of making a recommendation by the M.C.I. on the basis of the information, which had been supplied by the petitioner college, cannot be faulted.
As regards the order dated 10.7.2014 passed by the M.C.I., we may mention that while passing the said order, the M.C.I. had considered the various directions issued by the Apex Court in the case of Priya Gupta and followed the mandate of the Regulations of the M.C.I. as well as the directions issued in the aforesaid case, wherein it was specifically provided that no recommendation could be made by the M.C.I. after 15.6.2014 and thus refused to re-consider its earlier report dated 10.6.2014. Such decision also cannot be faulted.
As regards the question of equality, the submission of learned counsel for the petitioner is that fresh recommendation had been made by the M.C.I. on 12.7.2014 in the case of State Medical Colleges, which was after 15.6.2014. We may only state that we are not to examine the correctness of the same, as it is not an issue before us. There is no question of grant of negative equality to the petitioner, as the petitioner has to establish its case for grant of letter of permission on its own merit, which it has failed to do. If any party is of the view that the recommendation dated 12.7.2014 was against the directions of the Apex Court, for which proceedings for contempt should be drawn, it is for the party concerned to initiate such proceedings in terms of the order of the Apex Court in the case of Priya Gupta (supra) or approach the M.C.I. for taking suitable steps. But the petitioner would not be entitled to grant of any such equality, specially in the teeth of the specific directions of the Apex court for adhering to the time schedule for submission of report by M.C.I. and grant of permission by Government of India.
In view of the aforesaid, no case for quashing the order dated 15.7.2014 or setting aside the recommendation of the M.C.I. dated 10.6.2014, or quashing the order of M.C.I. dated 10.7.2014 is made out. The question of grant of permission for starting a new medical college with 150 admissions capacity in M.B.B.S. course for the session 2014-15 is also not made out.
However, in the facts of the present case, we provide that the M.C.I. may consider the compliance report of the petitioner college submitted on 25.6.2014 afresh for the next academic session 2015-16, if the same is permissible in law. Else the petitioner college may make a fresh application after fulfilling all the conditions as provided under sub-Section (4) of Section 10A of the Act for the next academic session, which shall be considered on its own merit. In the interest of justice, it is also provided that if the case of the petitioner is either considered afresh on the basis of the compliance report of the petitioner-college submitted on 25.6.2014 or on filing of its fresh application for the academic session 2015-16, the report may be submitted by the M.C.I. at least one month before the cut off date i.e. 15.6.2015 and if the petitioner removes such deficiencies, which may be pointed out in the report of the M.C.I., within time i.e. before 15.6.2015, the application for grant of permission shall be considered on merits and in accordance with law.
With the aforesaid observations, this writ petition is accordingly dismissed. However, there shall be no order as to costs.