Royal Medical Trust (Regd.) Mangode, Cherpulassery, Palakkad District, Kerala v. Union of India, Ministry of Health and Family Welfare, Department of Health, Nirman Bhawan, New Delhi, and Board of Governors, Medical Council of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 27TH DAY OF MAY 2013/6TH JYAISHTA 1935** ## **WA.No. 671 of 2013 ()** **-----------------------------------------(AGAINST THE ORDER/JUDGMENT IN WP(C).O. 1549/2013 DATED 26-02-2013) --------------------------------------------------------** ## **APPELLANT /PETITIONER:** **------------------------------------------** **ROYAL MEDICAL TRUST (REGD.) MANGODE, CHERPULASSERY, PALAKKAD DISTRICT, PIN- 679 503, KERALA, REPRESENTED BY THE CHAIRMAN DR.P.A.NAZAR** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. UINION OF INDIA,** **MINISTRY OF HEALTH AND FAMILY WELFARE,DEPARTMENT OF HEALTH, NIRMAN BHAWAN, NEW DELHI -110 001, THROUGH ITS SECRETARY.** ## **2. BOARD OF GOVERNORS,** **MEDICAL COUNCIL OF INDIA, THROUGH ITS CHAIRMAN, POCKET 14, SECTOR 8, DWARAKA PHASE-1, NEW DELHI- 110 001.** **R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.T.SANJAY.CGSC** **R2 BY ADV.SRI.ALEXANDER THOMAS, SC, MCI** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **W.A.NO.671/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A1 COPY OF THE ORDER OF THE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.13662/2013 DATED 18/4/2013** **ANNEX A2 COPY OF THE CONSENT OF AFFILIATION NO.2922/AC.1/1/2012/KUHS DATED 16/10/2012.** ## **RESPONDENT'S ANNEXURES:** **NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** # **MANJULA CHELLUR,C.J. &** ## **K.VINOD CHANDRAN, J.** **= = = = = = = = = = = = = = = =** **W.A.No.671 of 2013** **= = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** The writ petitioner has approached this Court with the following reliefs:- “ i. Issue a writ order or direction calling for the records in relation to the decision by the respondents on Ext.P9 application from the respondents and to pass order to meet the ends of justice. ii. Issue a writ in the nature of mandamus directing the respondents to register the application given as per Ext.P9 for the academic year 2013-14 and to process the same for the grant of letter of permission for 2013-14. iii) Issue a writ declaring that the delay in issuance of the consent of affiliatiion by the affiliating body by itself will not disentitle the registration of application resulting in rejection of the application when the application with essentiality certificate of the State Government and other documents having been submitted and received before 31.08.2012 and that the consent of affiliation having been produced on issuance of the same on 1.11.2012 before the date provided for making the recommendation of the Medical Council to the Central Government as provided in the annexure to the schedule. **W.A.No.671 of 2013** **2** iv) Issue a writ declaring that the rejection of Ext.P9 application for non submission of consent of affiliation along with Ext.P9 is bad and to set aside the said decision. v) Pass such other order or direction as this Court may deem fit and proper in the interest of justice.” 2. The appellant is none other than the writ petitioner who was unsuccessful before the learned Single Judge. The writ petitioner claiming to be the owner of 500 bedded hospital at Cherpulassery in Palakkad district intended to start a Medical College. Though the petitioner had initially obtained 'Essentiality Certificate' from the State Government which was valid up to 2012-13 but they were unable to submit application for permission during the relevant year. Later on they sought for grant of consent of affiliation from Kerala University of Health Sciences which came to be issued only on 01.11.2012. However, the writ petitioner without the Consent of Affiliation submitted Ext.P9 application before the 1[st] respondent-Union of India for establishment of a new medical college on 25.08.2012. The 2[nd] respondent-Board of Governors of Medical Council of India decided to reject the application on the ground that Consent of Affiliation was not enclosed along with the **W.A.No.671 of 2013** **3** application dated 25.08.2012. However, having learned this information, a representation was given by the appellant explaining the reason for the delay in submitting 'Consent of Affiliation' contending that there was no delay or laches on the part of the appellant/writ petitioner and that it was entirely due to the delay and laches on the part of the University, therefore, the applicant should not be made to suffer for fault of the University. However, there was no permission granted for academic year 2013-14 to establish a medical college. 3. Aggrieved by the said decision of the respondent, the writ petitioner approached with the above writ petition seeking the above releifs. According to the Medical Council of India (for short MCI), Ext.P9 application for the academic year 2013-14 was forwarded by the 1[st] respondent on 18.09.2012. When Consent of Affiliation was not found along with the application, in the meeting held on 8.10.12 the Board of Governors of M.C.I. took a decision that the application for the academic year 201314 though was submitted within the prescribed date was not a complete application as required documents, that is Consent of Affiliation, was not found, though Essentiality Certificate was **W.A.No.671 of 2013** **4** annexed. According to them, unless the applications are complete, they will not be able to register the same and therefore, not only the application has to be submitted within the time frame as per the statutory regulations, but it must be a complete application containing all the required documents. 4. During the course of arguments, several statutory provisions were brought to the notice of the Court as to how Medical Council issues permission for establishment of new college and how a scheme has to be submitted whenever a new college is intended to be established. 5. We are not concerned with those statutory provisions. The entire issue revolves around the question whether an incomplete application, though submitted within the time stipulated, could be considered as a complete application so as to allow the institution to establish a new Medical College. It is not in dispute that there is no such regulation in MCI Act like Dental Council of India permitting Union of India to extend the time in the discretion of the Central Government for submission of application. On the other hand, the scheme contemplates how and when the application has to be submitted. In Ext.P14, stage **W.A.No.671 of 2013** **5** of processing, right from the stage of receipt of applications by the Central Government, till issue of Letter of Permission by the Central Government is indicated which reads as under:“ |**_Sl._**<br>**_No._**|**_Stage of processing_**|**_Last Date_**| |---|---|---| |1|Receipt of applications by the Central Govt.|From 1stAugust to 31st<br>August (both days<br>inclusive of any year)| |2|Receipt of applications by the MCI from Central<br>Govt.|30thSeptember| |3|Recommendations of Medical Council of India to<br>Central Government for issue of Letter of Intent|15thDecember| |4|Issue of Letter of Intent by the Central<br>Government|15thJanuary| |5|Receipt of reply from the applicant by the Central<br>Government requesting for Letter of permission|15thFebruary| |6|Receipt of Letter from Central Government by the<br>Medical Council of India for consideration for<br>issue of Letter of Permission|1stMarch| |7|Recommendation of Medical Council of India to<br>Central Government for issue of Letter of<br>Permission.|15thMay| |8|Issue of Letter of Permission by the Central<br>Government|15thJune| 6. The contention of the learned counsel appearing for the appellant is, as a matter of fact in **Mridul Dhar and another v. Union of India** [(2005)2 SCC 65) there was no consideration of last date for submission of application and the discussion was **W.A.No.671 of 2013** **6** only with reference to last date for admission of the candidates to the course. Therefore, reliance placed by the learned Single Judge on **Priya Gupta v. State of Chhattisgarh and others [(2012)7 SCC 433** and **Mridul Dhar's case** was not justified. He took us through the decision reported in **Priyadarsini Dental College and Hospital vs. Union of India and others** [2012(7) SCC 433 : 2011(4) SCC 623] . Paragraphs 13 and 14 is relevant which read as under:- “13. It is necessary to refer to certain aspects of grant of permissions to avoid confusion, unnecessary delays and litigation. In Mridul Dhar, this Court primarily dealt with the time schedule for completion of admission process for medical and dental colleges. Mridur Dhar did not provide any time schedule, much less 15[th] July as the last date, for issue of letters of permissions or renewal of permissions by the Central Government to the dental colleges. Para 28 of the decision in Mridul Dhar referring to a time schedule stipulating 15[th] July as the last date for issue of letters of permission by the Central Government does not relate to dental colleges nor to permissions/renewal of permissions to dental colleges. The said time schedule is not even a direction of this Court, but is only an extract from the Medical Council of India Establishment of Medical College Regulations, 1999 applicable only to medical colleges. 14. This Court in Mridul Dhar however clearly directed that the Central Government should strictly adhere to the time schedule wherever provided for. This Court stated: (SCC pp. 83-84, para 32) “32. Having regard to the professional courses, it deserves to be **W.A.No.671 of 2013** **7** emphasised that all concerned including Governments, State and Central both, MCI/DCI, colleges-new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible.” (emphasis supplied)” 7. As already stated above Dental Council of India regulations provided for relaxation or extending date of receipt of application as the case may be, provided sufficient reasons are found by Central Government. There is no such provision so far as MCI regulations. On the other hand one cannot fix last date for admission of candidates to a particular course without having a time frame when an application has to be received and how it has to be processed with respect to sanction at of different stages. Unless there is a time schedule compliance, the candidates would not be admitted to a particular course within the last date for such admission. Therefore argument of the learned counsel appearing for the appellant that the law laid down in **Mridul Dhar and Priya Gupta** has no relevance and cannot be relied upon is rejected. On the other hand, the law **W.A.No.671 of 2013** **8** laid down may be with regard to the admission of candidates to a particular course but the principle underlying the said decision is whether a time frame is a necessity in those situations. Not in one case, but in several judgments the scheme with regard to the time frame as available in the regulations of MCI is referred to by their Lordships while dealing with several situations including last date for admission of candidates to different courses. 8. As a matter of fact, in **Mridul Dhar'** s case, direction Nos.14 and 15 in paragraph 35, specifically refer to time schedule for establishment of new college and time schedule provided in the regulations to be strictly adhered to by all concerned which read as under:- **==> picture [193 x 10] intentionally omitted <==** 14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned. 15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.” **W.A.No.671 of 2013** **9** 9. As a matter of fact, direction Nos. 3 and 4 refer to caution given by the Apex Court in holding the departments, Chief Secretaries of each State etc. responsible to see that the time schedules as laid down in the regulations to be followed strictly. Non-compliance would make them liable for requisite penal consequences. In that view of the matter, the law laid down in **Mridul Dhar** being followed in **Priya Gupta** clearly indicates the relevance of time schedule stipulated in the regulations. The learned Single Judge having regard to the law laid down by the Apex Court and the time schedule contemplated in the regulations of **Mridul Dhar'** s was justified in saying, the application of the appellant was incomplete so as to permit them to establish a new Medical College. It is not a valid application received within the time frame, i.e. prior to 30.09.2012. Unless the application had Consent of Affiliation, it was not a complete application. It is incomplete application which deserves to be rejected. This was done by the authorities concerned. If the University did not process their application for Consent of Affiliation within time, it was the responsibility of the appellant **10** ## **W.A.No.671 of 2013** to see that proper directions were taken against the University for consideration of their application, having regard to the time schedule prescribed under MCI regulations. In the absence of such exercise being done by the appellant they cannot blame the respondent-authorities for rejecting the incomplete applications submitted by them. Accordingly, we dismiss the appeal. ## **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** sj 28/5