JUDGMENT

Issue involved in this writ petition pertains to permission for establishment of a new Medical College proposed to be started by the petitioner trust. Brief facts enumerated is as follows. The petitioner is running a 500 bedded Hospital at Cheruplassery in Palakkad district. For starting the Medical College the petitioner had initially obtained Ext.P1 ‘Essentiality Certificate’ from the State Government, which was valid upto the year 2012-2013. The petitioner could not submit application for permission during the relevant year. Subsequently an application before the Kerala University of Health Sciences was submitted for provisional affiliation and for grant of ‘Consent of Affiliation’. The University has not issued the Consent of Affiliation since the petitioner has not produced the renewed Essentiality Certificate, obtained from the State Government. Later the State Government had issued Ext.P7 renewed Essentiality Certificate on 16-08-2012, with validity for the academic years 2013-2014 and 2014-2015. It is stated that the petitioner had immediately produced Ext.P7 before the University. However, before getting the Consent of Affiliation, the petitioner submitted Ext.P9 application before the 1st respondent seeking permission for establishment of the Medical College, on 25-08-2012. The application was accompanied with all requisite documents, except the Consent of Affiliation. Thereafter the University had issued Ext.P10 Consent of Affiliation, on 01-11-2012. Exhibit P10 was forwarded to the 2nd respondent, as per Ext.P11 letter. But it is understood that the 2 respondent had decided to reject the application on the ground that the Consent of Affiliation was not enclosed along with the application. Hence the petitioner submitted Ext.P12 representation stating that the delay caused in submitting the Consent of Affiliation was not due to any fault on the part of the petitioner, but only on account of delay on the part of the University. Since there was no response this writ petition is filed seeking direction for registration of Ext.P9 application for the academic year 2013-2014. Inter alia the petitioner is seeking a declaration that the delay caused in issuing the Consent of Affiliation by the University will not disentitle registration of the application, when the application was submitted along with the Essentiality Certificate and other documents, before 31-08-2012, and when the Consent of Affiliation was subsequently produced. Petitioner also seeks to set aside the decision to reject Ext.P9 application.

2. In the counter affidavit of the 2 respondent it is stated that Ext.P9 application was forwarded by the 1 respondent on 18-09-2012. The 2 respondent found that the Consent of Affiliation was not attached along with Ext.P9 The Board of Governors of the Medical Council of India in its meeting held on 08-10-2012 has taken a decision that applications submitted for the year 2013-2014 within the prescribed date in which the Consent of Affiliation is lacking are required to be returned along with refund of the application fee. Such a decision is taken in view of the Regulation mandating that incomplete applications cannot be registered. It is contended that the statutory regulations stipulates time frame for receipt of the applications and the hon'ble Supreme Court in Mridul Dhar v. Union of India(2005) 2 SCC 65 and in Priya Gupta v. State of Chhattisgarh(2012) 7 SCC 433 has issued directions to all concerned to strictly adhere to the time frame stipulated in the schedule of Regulations. Therefore the incomplete application received before the date stipulated in the schedule is liable to be returned. Hence the non-registration of Ext.P9 application was perfectly valid and justified, is the contention.

3. Section 10A of the Indian Medical Council Act, 1956 (hereinafter referred to as the ‘Act’) deals with permission for establishment of new Medical colleges. Sub Section 2(a) insist upon every person intending to establish a college to submit a scheme in the prescribed form, containing such particulars as prescribed, accompanied by payment of the fee prescribed. The Central Government shall refer the scheme to the Medical Council for its recommendations and the Medical Council has to consider the scheme and to submit its recommendations to the Central Government. By virtue of the Indian Medical Council (Amendment) Act, 2000 and introduction of Section 3A, 3B and 3C, powers vested with the Medical Council now stands vested with the Board of Governors. By virtue of Section 3B (b) the Board of Governors are vested with powers to grant permission for establishment of new Medical colleges. The Board of Governors is the competent authority to deal with Ext.P9 application. By virtue of Section 33 of the Act, power is vested on the Medical Council to formulate Regulations, with prior approval of the Central Government, with respect to the scheme contemplated under Section 10A (2) of the Act. The Regulations now in force is the Medical Council of India Establishment of Medical College Regulation, 1999 (hereinafter referred to as the ‘Regulations’).

4. It is not in dispute that Ext.P9 application submitted in the month of August, 2012, was not accompanied with the Consent of Affiliation. It is also not in dispute that the Consent of Affiliation was issued by the University only on 01-11-2012 and it was received in the office of the 2 respondent only on 05-11-2012, as evident from the endorsement contained in Ext.P11 (in the affidavit of the 2 respondent it is mentioned that it was submitted only on 07-11-2012). Regulation 2 enumerates the ‘qualifying criteria’ to make application for permission. One of the conditions to be fulfilled is obtainment of Consent of Affiliation in the prescribed form, from a University. Regulation 5 deals with registration of applications which specifically provides that, the registration of an application will only signify acceptance of the application for evaluation and incomplete application will not be registered and will be returned along with enclosures and processing fee, stating the deficiency in such applications. A schedule appended to the Regulations prescribes time limit for receipt of applications, for processing at various levels, for issuance of letter of indent and the letter of permission etc. Copy of the schedule valid at present is produced as Ext.P14 It indicates that the last date prescribed for receipt of application by the Central Government was 31 August, and the last date for receipt of application by the Medical Council is 30th of September. Since the power to grant permission is now vested with the Board of Governors the last date for receipt of application can be construed as 30 September. Going by the schedule the last date prescribed for issue of the letter of permission is 15 of June. Therefore it is evident that Ext.P9 application with respect to permission for the academic year 2013-2014, should have received by the Council before 30 of September, 2012, and if eligible the Council should have granted the letter of permission before 15 of June, 2013. From the stand taken by the 2 respondent it is evident that the application was not registered since the Consent of Affiliation was not produced before the cut-off date of 30-09-2012. Question mooted for consideration is as to whether the application is liable to be rejected or returned for the above said reason, and as to whether this court can direct registration and consideration of the application on the basis that the Consent of Affiliation was subsequently produced during the month of November. 2012.

5. Sri George Poonthottam, learned counsel for the petitioner had drawn attention to Section 10A(3)(a) which provides that, if the scheme is defective and does not contain any necessary particulars the Council shall give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to rectify the defects, if any, specified by the Council. Contention is that in view of Section 10A(3)(a) the 2 respondent ought to have requested the petitioner to rectify the defect by providing the Consent of Affiliation. Per contra Sri Alexander Thomas, Standing counsel for 2 respondent contended that, failure to obtain Consent of Affiliation from the University will amount to non-fulfillment of the qualifying criteria, and it is not a defect in the scheme as contemplated under Section 10A(3)(a). In this regard reliance is placed on Regulation 2 which prescribes the qualifying criteria. He had drawn attention to the contents of the prescribed form of the application, appended to the Regulations. It enumerates a list of enclosures to be supplied along with the application. It includes certified copy of the Consent of Affiliation issued by a recognised University. Under Regulation 5 it is stipulated that incomplete applications will not be registered and will be returned along with the processing fee. According to the 2 respondent an application not accompanied by Consent of Affiliation is liable to be returned because there is failure to fulfill the qualifying criteria. Along with the affidavit of the 2 respondent, a copy of the decision taken by the Council on 08-10-2012 is produced as Ext.R2(I). Council took a decision to include those applications which does not fulfill the criteria of obtaining Consent of Affiliation under type III. It was decided that such applications should be returned along with the application fee. The decision is taken strictly in tune with the Regulations and the schedule appended, is the contention.

6. From the schedule appended to the Regulations it is evident that the 2 respondent has got time till 15 June for grant of letter of permission. Can this court interfere in the matter for issuing any direction to consider Ext.P9 application, on the basis of the fact that the Consent of Affiliation was already obtained and produced in the month of November, 2012. Judicial precedents assumes much importance in the context. It is well settled that the Medical Council Regulations has got statutory force and are mandatory. The Regulations stipulate time frame for receipt of the application, and for its processing and for grant of permission. Contention of the 2 respondent is that it is mandatory for all concerned to strictly follow and to adhere to the time schedule. In this regard attention is drawn to Mridul Dhar's case (cited supra). The hon'ble Supreme Court observed that adherence to the time schedule by every one is paramount for the timely grant of admissions, commencement of academic session and for closure of admission after 30 September each year. Referring to the Regulations it was observed that, the Regulations as modified from time to time shall qualify an eligible organisation to apply for permission to establish a new Medical college, only if the conditions therein are fulfilled. The time schedule for receipt of applications for establishment of new Medical Colleges and processing of the applications by the Central Government and by the Medical Council of India is fixed under the schedule to the 1999 Regulations. Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State & 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; no admissions in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The hon'ble Supreme Court in paragraph 34 of the said decision had issued strict directions. Among those directions Sl No. 14 and 15 is of importance with respect to the issue involved, which is extracted below:

“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.”

In Priya Gupta's case (cited supra) the hon'ble Supreme Court, after referring to so many other decision made the following observations:

“The schedules prescribed have the force of law, inasmuch as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the Regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counselling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this court and the Medical Council of India Regulations.”

It further observed that,

“The Medical and Dental Councils of India, the Governments and the universities are expected to act in a tandem with each other and ensure that the recognition for starting of the medical courses and grant of admission are strictly within the time-frame declared by this Court and the Regulations. It has come to the notice of this Court that despite warnings having been issued by this Court and despite the observations made by the Court, that default and non-adherence to the time schedules shall be viewed very seriously, matters have not improved. Persistent defaults by different authorities and colleges and granting of admission arbitrarily and with favouritism have often invited criticism from this Court.”

In the above decision the hon'ble apex court further observed that, “in view of the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection”. Thus the hon'ble Supreme Court issued directions in rem for their strict compliance, without demur and default, by all concerned. Among the directions so issued, paragraph 46.3 is of importance which is extracted below;

“After 15 July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15 July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15 July of the relevant year, the name of that college and all seats shall be included in both the first and the second counselling, in accordance with the Rules.”

After issuing such directions the hon'ble Supreme Court observed that all these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and Medical and Dental colleges and the management of the respective Universities for Dental and Medical colleges. Any default in compliance with the directions or attempt to overreach these directions shall, without fail, invite consequences and penal actions.

7. In paragraph 47.1, 47.2 and 47.3 the hon'ble Supreme Court enumerated the consequences to follow, which is extracted below:

“47.1 Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such institution/State etc.

47.2 The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.

47.3 Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.”

8. In view of the positive directions contained in Mridul Dhar's case and Priya Gupta's case, can this court grant any equitable relief in relaxation of the time schedule, is the question. Contentions of learned counsel for the petitioner relying upon Section 10A(3)(a) cannot be countenanced in view of the fact that the Regulations has got statutory force and it provides that an application cannot be registered without fulfilment of the ‘qualifying criteria’ which include production of Consent of Affiliation. The time schedule appended to the regulations prohibits registration of any application after the cut-off date of 30 September. Therefore on the facts, production of the Consent of Affiliation after the cut-off date will not entitle the petitioner for registration of the application and for its scrutiny. Even on considering that the time stipulated for grant of LOP has not expired, this court is prevented from considering grant of any equitable relief, in view of the strict directions issued by the hon'ble Supreme Court.

9. Sri George Poonthottam, learned counsel appearing for the petitioner raised strenuous arguments to distinguish the facts of the case at hand from the facts and context of the decision of the hon'ble Supreme Court, and attempted to establish that the ratio is not applicable on the given facts and circumstances. It is contended that in both the above decisions, the hon'ble Supreme Court only dealt with the time schedule for admissions and not with the time schedule for grant of permission for establishment of new Medical colleges. It is vehemently contended that the directions contained in Mridul Dhar's case and Priya Gupta's case are applicable only with respect to adherence of the time stipulated for the process of admissions and not with respect to the time schedule for submitting applications for permission for new Medical colleges. He had placed much reliance on a decision of the hon'ble Supreme Court in Priyadarshini Dental College and Hospital v. Union of India(2011) 4 SCC 623. The hon'ble Supreme Court in that case, while referring to Mridul Dhar's case, observed as follows:

“In Mridul Dhar, this Court primarily dealt with the time schedule for completion of admission process for medical and dental colleges. Mridul Dhar did not provide any time schedule, much less 15 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 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.”

10. Learned counsel contended that the above clarifications will indicate that the directions in Mridul Dhar's case cannot be insisted for strict adherence in the matter of application for establishment of new Medical colleges. Per contra, standing counsel for 2 respondent pointed out that, in Priyadarshini Medical College's case (cited supra) the hon'ble Supreme Court was dealing only with the question of grant of permission by the Dental Council of India and the clarification was only to the effect that the directions in Mridul Dhar's case is not applicable in the matter of issue of letter of permission by the Central Government or by the Dental Council. He had drawn my attention to the schedule appended to the Dental Council of India Regulations relating to receipt of application for establishment of new Dental colleges. It is pointed that Note (2) in the schedule prescribes that, “the time schedule indicated above may be modified by the Central Government, for reasons to be recorded in writing, in respect of any class or category of applications.” But such a relaxation is not provided in the time schedule of the Medical Council Regulations. Therefore even the Central Government cannot direct any relaxation in the time schedule, is the contention. I am of the opinion that the observations in Priyadarshini Dental College's case, which is extracted above, will not in any manner dilute the binding force of the directions contained in Mridul Dhar's case and Priya Gupta's case.

11. Learned counsel for the petitioner placed much reliance on Ext.P13 It is an unreported decision of a Division Bench of Madras High Court. Almost identical situation of facts prevails in that case also. The observation contained in Ext.P13 are as follows:

“Given the fact that the role of the 2 respondent, as given under Section 10A of the Act, is more pronounced on assessing the merits of the scheme, we feel, on the mere absence of consent of affiliation as on the date when it took the application for consideration, the second respondent should not have rejected the application, without even affording an opportunity to the appellant. On the other hand, in fairness to the claim of the appellant, particularly in the context of the fact that granting of consent of affiliation is a matter of procedure, over which the appellant has no control, the second respondent ought to have called upon the appellant to produce the letter of consent of affiliation from the 5 respondent University within a time frame for the 2 respondent to get into the merits of the scheme. Eventhough learned counsel for the 2 respondent pointed out that the application was an incomplete application which cannot be processed for considering the merits of the scheme, we feel that when the second respondent chose to return the application on the ground of the application being incomplete, nothing prevented the 2 respondent from forwarding the same to the 1 respondent herein, pointing out the error committed by the 1 respondent in forwarding such incomplete application form. When none of the courses were adopted by the respondents herein, we do not think there exists any legality or factually a justifiable reason, to make the appellant a victim of the circumstances, which are solely within the domain of every one of the statutory bodies. In the circumstances, the contention of the learned counsel for the 2 respondent that the time limit for considering the scheme under the Act had gone against the appellant, does not merit any acceptance by this court.

In view of the said observations the High Court of Madras directed the Medical Council of India to return the application for enabling the party to re-present the same before the Central Government for registering the same and to place it before the 2 respondent, without any further delay.

12. Learned counsel for the petitioner made an earnest endeavour for persuading this court to adopt such a course for granting an equitable relief. But counsel for the 2 respondent had pointed out that Ext.P13 judgment was under challenge before the hon'ble Supreme Court. The Special Leave Petition filed by the 2 respondent was dismissed. But the hon'ble Supreme Court in Ext.R2(f) order observed as follows:

“Dismissed. However, questions of law raised by the petitioner are kept intact to be agitated in an appropriate case.

Now, the Board of Governors shall comply with the directions issued by the High Court in paragraph 28 of the judgment on or before 15-04-2012.

We also make it clear that the judgment and order passed by the High Court in Writ Appeal (MD) No. 8 of 2012 dated 02-02-2012 shall not be treated as a precedent in any other case.”

I take note of the fact that Ext.P13 judgment has not dealt with the question regarding the binding nature of the directions contained in Mridul Dhar's case and Priya Gupta's case. Since the hon'ble Supreme Court has specifically held that the said decision shall not be treated as a precedent in any other case, this court is not in a position to follow the course adopted.

13. On behalf of the 2 respondent, reliance was placed on Exts. R2(a) and R2(b) judgments of this court. In Ext.R2(a), a learned Judge of this court, in an almost identical situation issued direction to the 2 respondent to conduct necessary inspection with respect to the next academic year and to finalise the proceedings in accordance with law on the basis of the application already preferred and on the basis of Consent of Affiliation granted by the University, which was already produced, without insisting upon the party to submit a fresh application for the next academic year. But the 2 respondent had challenged Ext.R2(a) in Writ Appeal. The Division Bench in Ext.R2(b) judgment while disposing the writ appeal observed as follows:

“Subsequent to the submission of application within the time frame all the relevant and essential documents must be sent along with the application. Apart from submitting the application in time, there has to be compliance of several things within the time schedule. There will be two inspections that is Letter of Indent (LOI) and Letter of Permission (LOP). Even for these two inspections, the time limit for LOI is 15 of December and for LOP is 15 of May. In that view of the matter, right from the process of submitting the application till the second inspection i.e; LOP which has to be done on or before 15 of May, everything has to be processed within the time fixed in the schedule. This is the dictum of the Apex Court in Mridul Dhar (supra), Government of A.P v. Medwin Educational Society(2004) 1 SCC 86 and the unreported judgment in Priya Gupta v. State of Chattisgargh [C.A No. 4318/2012 dated 08-05-2012]

In Ext.R2(b) judgment the Division Bench found that the applicant cannot claim any benefit on the basis of any application made earlier, or on the basis of any fee paid earlier or on the basis of any certificate which has to accompany the application, unless it is valid for the next academic year. It was made clear that the applicant therein will be at liberty to seek permission to start Medical College for the next academic year by complying the time schedule and requirements of essential documents.

14. Under the above mentioned context, it is clear that this court is bound by the decisions of honble Supreme Court and also Ext.R2(b) decision rendered by a Division Bench of this Court. Considering the judicial constrains to follow the binding precedents, this court cannot consider the appeal for exercise of its discretionary jurisdiction for granting any equitable relief in this case.

15. In the result, none of the the reliefs sought for in this writ petition can be granted. Consequently the writ petition fails and the same is accordingly dismissed.

16. However, it is left open to the petitioner to submit application for the next academic year, after fulfilment of all the requisite conditions, before the date stipulated in the time schedule appended to the Regulations.