Aditya Educational Society and Others Vs The Union of India and Others

@JUDGMENTTAG-ORDER

Ramesh Ranganathan, J.

1. The order of the 2nd respondent dated 10.09.2013, rejecting renewal of permission for the fourth batch of 100 MBBS students to the 2nd petitioner-College for the academic year 2013-2014, is questioned in this Writ Petition as being arbitrary, illegal and contrary to the provisions of the Indian Medical Council Act, 1956 and the Regulations made thereunder. Facts, to the extent relevant, are that the 3rd petitioner is the chairman of the 1st petitioner Society and the Director of the 2nd petitioner-college. The 1st petitioner is a society registered under the Societies Registration Act, 1860. It claims to be a charitable organisation whose aims and objects include spreading education among the backward classes in Srikakulam district - a predominantly agency area in the State of Andhra Pradesh. It is the petitioners'' case that the 2nd petitioner-college was established in furtherance of its objects of imparting quality medical education to the youth from the backward classes; more than 66% of all students in the 2nd petitioner-college are from the backward classes, and 76% are from the same region; the 2nd petitioner-college was established in the year 2010, and the first batch of MBBS students were admitted during the academic year 2010-2011; permission was granted by the Medical Council of India ("MCI" for short) after inspection and verification of compliance of various requirements; they spent a huge amount to establish the medical college, and are successfully running it; they applied for renewal of permission for the academic year 2011-2012; on renewal being refused, they filed W.P. No. 20834 of 2011; this Court passed an interim order dated 18.08.2011 suspending the order of the M.C.I. dated 30.06.2011, and directed the 3rd respondent to include the 2nd petitioner-college in the ongoing counselling being conducted by them; by its proceedings dated 23.06.2012 the 2nd respondent granted renewal of permission, for admission of the third batch of MBBS students, for the academic year 2012-2013; on their submitting an application, seeking renewal of permission for the fourth batch of 100 MBBS students for the academic year 2013-2014, the assessors of the 2nd respondent inspected the 2nd petitioner-college on 08th and 09th March, 2013; after examining the assessors report the 2nd respondent informed them, vide letter dated 22.04.2013, of eleven deficiencies and called upon them to show-cause why renewal of permission, for the fourth batch of 100 MBBS students, should not be refused; by their reply letter dated 11.05.2013, they informed the 2nd respondent that the alleged deficiencies, which were trivial in nature, had been complied with; as the deficiencies, after rectification, were less than 8%, they requested that further action be dropped; the 2nd respondent, thereafter, issued letter dated 21.06.2013 calling upon them to appear before it on 26.06.2013, and submit documentary proof; as no orders were passed on their representation, they filed W.P. No. 21506 of 2013 and this Court, by order dated 05.08.2013, directed the Board of Governors to consider the matter afresh and, if considered necessary, accord an opportunity of personal hearing to the petitioners, and then take an appropriate reasoned decision in the matter; and on the matter being remitted back for its re-consideration the 2nd respondent, by its proceedings dated 10.09.2013, rejected renewal of permission, for admission of the fourth batch of 100 MBBS students for the academic year 2013-2014, citing three deficiencies of which two were originally referred to and the third was raised afresh. The impugned order dated 10.09.2013 records that the Board of Governors had considered the petitioners'' representation and had referred the matter to the under-graduate committee to scrutinize the additional documents, submitted by the representatives of the 2nd petitioner-college during the personal hearing held on 27.08.2013, and place the matter before the Board of Governors for passing an order in the matter; and the under-graduate committee, in its meeting held on 29.08.2013, noted three deficiencies. The impugned order contains a table wherein these three deficiencies, and the remarks of the under-graduate committee thereupon, are detailed.

2. The Board of Governors, thereafter, noted the requirements under the "Minimum Requirements for 100 MBBS Admissions Annually Regulations, 1999" and Regulation 8(3)(1) of the Establishment of Medical College Regulations, 1999 (for short, the �Regulations"). It observed that, during the course of inspection, the team of assessors had found that the bed occupancy was far below the minimum percentage prescribed in the Regulations; even in the compliance report, submitted by the College, the bed occupancy was less than the requirement of the Regulation; and, in terms of Regulation 8(3)(1)(b), the college could not be considered for renewal of permission for the current academic year. It is the petitioners case that the deficiencies pointed out by the M.C.I., with respect to shortage of books, was false and erroneous as the bills enclosed by them showed that 199 books, exclusive of the existing 2676 books, were there in the library of the 2nd petitioner-College. Reference is made by them to various invoices, relating to purchase of books, which are said to have been made available to the 2nd respondent in the compilation of submissions furnished to them on 26.06.2013. With regards the second deficiency, it is stated that the 2nd petitioner-college is a rural hospital wherein patients come from remote areas and, in view of logistical difficulties regarding stay and transportation, they choose to stay overnight and request for observation; moreover, the hospital has evolved a policy of safety norms wherein minor surgical cases are admitted for a day; and the second deficiency is, therefore, not tenable. With respect to the third deficiency regarding bed occupancy, it is contended that the 2nd respondent had calculated the bed occupancy of 67.1%, basing on the occupancy for a limited period of 10 days i.e., from 10.03.2013 to 20.03.2013; the bed occupancy for the period from 10.03.2013 to 31.03.2013 was 68%; the monthly bed occupancy for April and May, and 20 days of June (1st to 20th June), was 77%, 70% and 80% respectively; if the entire period is taken, the bed occupancy is more than the prescribed norms, and the respondents have erred in holding that the petitioner-college was deficient in the aspect of bed occupancy.

3. In the counter-affidavit dated 28.09.2013, filed on behalf of the 2nd respondent, it is stated that an assessment was carried out by the assessors of the M.C.I. on 8th and 9th March, 2013; the assessment report detailed several deficiencies, including bed distribution to the effect that most of the patients in the surgical specialty were non-surgical patients; the bed occupancy was inadequate (50% available as against the requirement of 75%); in their meeting held on 15.04.2013, the Board of Governors had considered the assessment report, and had decided that the 2nd petitioner-College be asked to submit their compliance report within 15 days, after rectifying the deficiencies as pointed out in the assessment report; the decision of the Board of Governors was communicated to the 2nd petitioner-college by letter dated 20.04.2013; the college submitted its compliance report vide letter dated 08.05.2013; both the compliance report dated 08.05.2013, and the assessment report dated 08th and 9th March, 2013, were considered by the Board of Governors in their meeting held on 11th and 12th June, 2013; the Board of Governors noted that no documentary proof was annexed with the compliance report and certain declaration forms needed physical verification; they decided to grant a personal hearing to the 2nd petitioner-college to produce evidence/documents in proof of rectification of the deficiencies; a personal hearing was granted to the college on 26.06.2013, and it was decided thereat that renewal of permission, for admission of the fourth batch of 100 MBBS students, should not be granted; the decision of the Board of Governors was communicated to the 2nd petitioner-college vide letter dated 02.07.2013; the representation of the 2nd petitioner-college dated 27.06.2013, requesting them to have a re-look, was examined; the earlier decision was reiterated and communicated to the petitioners vide letter dated 10.07.2013; the Principal of the 2nd petitioner-college submitted a compliance report, along with the declaration of the faculty, by their letter dated 08.07.2013; this Court, by its order dated 05.08.2013, directed M.C.I. to consider the matter afresh, and accord an opportunity of personal hearing if considered necessary; accordingly, an opportunity of personal hearing was granted to the 2nd petitioner-college on 27.08.2013; during the personal hearing, the 2nd petitioner-college submitted additional documents in support of their having complied with the deficiencies; the matter was, thereafter, referred to the under-graduate committee which considered the matter in its meeting held on 29.08.2013, and noted three deficiencies; and the impugned order dated 10.09.2013 was passed thereafter.

I. Section 10A of the Act and Regulation 8(3)(i) of the Regulations: ITS Scope:

4. Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioners, would submit that the 2nd respondent had issued show cause notice dated 22.04.2013 pointing out that the bed occupancy, as on the date of inspection, was 50% as against the requirement of 70%; proviso (b) to Regulation 8(3)(1) should be read in such a manner as to give meaning to the opportunity contemplated under Regulation 8(3)(1); and, in other words, the proviso cannot take away what is given by the main provision.

5. On the other hand Sri C. Gunaranjan, Learned Standing Counsel for the MCI, would submit that Regulation 8(3)(i) contemplates renewal of permission on a yearly basis, subject to verification of achievement of the annual targets; it also stipulates that the Central Government may, at any stage, convey the deficiencies to the applicant and provide them an opportunity and time to rectify the deficiencies referred to in Regulation 8(3)(i); the deficiencies which the applicant is entitled to rectify, are those which are capable of being rectified such as shortage of material and equipment, providing infrastructure etc; the deficiency in clinical material and bed occupancy are not capable of being rectified within a short duration; it requires the institution to build its name and reputation over a period of time, for attracting and sustaining the same; on an harmonious reading of Regulation 8(3)(i), and proviso (b) thereto, any college which, during any inspection, is found deficient in the specified faculty or bed strength cannot be considered for renewal; the provisos relate only to these two deficiencies; and there is a conscious departure therein from other possible deficiencies.

6. The Indian Medical Council Act (hereinafter called the ''Act'') is referable to Entry 66 of List I (Union List) of the Seventh Schedule to the Constitution. Medical Council of India Vs. State of Karnataka and Others, . Section 10A of the Act relates to permission for establishment of new medical colleges and new courses of study. Under subsection (1) thereof, notwithstanding anything contained in the Act or any other law for the time being in force, (a) no person shall establish a medical college; (b) no medical college shall (i) open a new or higher course of study or training which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of Section 10A of the Act. Explanation 1 thereto provides that, for the purpose of Sec. 10A, a "person" shall include any university or a trust but would not include the Central Government. It is thus clear that no medical college can be established by a university, a trust, a society or an individual, or even the State Government, without permission from the Central Government u/s 10A(1) of the Act.

7. Section 10A(1) of the Act is a substantive provision in itself and begins with a non obstante clause. It prohibits increase in the admission capacity in a medical college, unless previous permission of the Central Government is obtained in accordance with the recommendation of the MCI. The object, of achieving high standards of medical education, can be ensured only if a medical college has the requisite infrastructure to impart medical education. Unless an institution can provide complete facilities for imparting training to students, admitted in various disciplines, their medical education would remain incomplete; and the medical college would be turning out half-baked doctors which, in turn, would adversely affect the health of the public in general. K.S. Bhoir Vs. State of Maharashtra and Others, . What is postulated, u/s 10A of the Act, is evaluation of the application made by the institution concerned by the Central Government in the first instance and then forwarding the same to the MCI for its further examination. There are various steps envisaged under the Scheme such as (a) issuance of letter of intent by the Central Government on the recommendation of the Council; (b) issuance of letter of permission by the Central Government on the recommendation of the Council for starting admissions; (c) issuance of annual renewal to be granted by the Central Government on the recommendation of the Council; (d) at the stage when the first batch of students, admitted in MBBS course, go for the final year examination, grant of formal recognition by the Central Government on the recommendation of the Council; (e) if at any stage, after the grant of initial permission entitling permission of 1st batch of students, any college fails to fulfill the minimum norms in any successive year, as per the statutory regulations, further admissions are liable to be stopped at any stage Medical Council of India Vs. Rajiv Gandhi University of Health Sciences and Others, .

8. MCI, an expert body constituted under the provisions of the Act, has been assigned the task of maintaining high standards of medical education in the country; to supervise eligibility standards for admission in medical institutions; and to regulate their observance. This high-powered council has been conferred the power to prescribe minimum standards of medical education Manohar Lal Sharma Vs. M.C.I. and Others, ; State of Kerala Vs. Kumari T.P. Roshana and Another, . Section 10A(3) of the Act requires the M.C.I., on receipt of a scheme under sub-section (2), to obtain such particulars, as may be considered necessary by it, from the medical college concerned and, thereafter, it may (a) if the scheme is defective and does not contain the necessary particulars, give a reasonable opportunity to the college concerned for making a written representation and it shall be open to such medical college to rectify the defects, if any, specified by the Council; (b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government. Sub-section (7) of Section 10A requires the M.C.I. while making its recommendations under clause (b) of sub-section (3), and the Central Government while passing an order, either approving or disapproving the scheme, under sub-section (4), to have due regard to certain factors viz., (a) whether the proposed medical college or the existing medical college would be in a position to offer the minimum standards of medical education as prescribed by the MCI u/s 19A(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities, to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity, have been provided or would be provided within the time limit specified in the scheme; and (d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time limit specified in the scheme. Section 19A(1) empowers the MCI to prescribe the minimum standards of medical education required for granting recognised medical qualifications by universities or medical institutions in India. Section 33 of the Act enables the M.C.I., with the previous sanction of the Central Government, to make regulations generally to carry out the purposes of the Act and to provide for the form of the scheme, the particulars to be given in such a scheme, the manner in which the scheme is to be preferred, the fee payable with the scheme under clause (b) of sub-section (2) of Section 10A, and the standards of staff, equipment, accommodation, training and other facilities for medical education.

9. In the exercise of its powers u/s 10A read with Section 33 of the Act, and with the previous sanction of the Central Government, the MCI made the Establishment of Medical College Regulations, 1999 (hereinafter called the "Regulations"). Regulation 3 relates to the establishment of a medical college and, thereunder, no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a Scheme as annexed to the Regulations. Regulation 3 gives details of the scheme for obtaining permission of the Central Government to establish a medical college. All applications under the scheme are required to be made in Form-I which contains three parts. Part-III requires the applicant to furnish the name and address of the existing hospital and its details including: (a) the bed strength; (b) bed distribution; (c) built-up area; (d) clinical and para-clinical disciplines, etc. Regulation 6 requires the MCI to evaluate the applications. Regulation 7 stipulates that, after examining the application and after conducting necessary physical inspection, the MCI should send to the Central Government a factual report and its recommendation whether a Letter of Intent should be issued and, if so, the number of seats per academic year. The MCI is required to recommend a time bound programme for the establishment of the medical college, and expansion of hospital facilities. Regulation 8 relates to grant of permission. Under Regulation 8(1) the Central Government, on the recommendation of the Council, may issue a letter of intent to set up a new medical college with such conditions or modifications, in the original proposal, as may be considered necessary. On acceptance of the conditions, and on the College furnishing the required performance bank guarantee, the Central Government is empowered, after consulting the MCI, to grant formal permission. Regulation 8(2) stipulates that the formal permission may include a time bound programme for the establishment of the medical college and expansion of the hospital facilities. These Regulations were amended by the "Establishment of Medical College Regulations, (Amendment), 2010 (Part II)", which came into force on 16.04.2010. Regulation 8(3), under the heading "Grant of Permission", was amended by insertion of Regulations 8(3)(1) to 8(3)(4). The amended Regulation 8(3)(1) and its provisos are relevant, and read as under:

8(3)(1). The permission to establish a medial college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.

PROVIDED that in respect of

(a) Colleges in the stage upto II renewal (i.e. Admission of third batch): If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 60%, such an institute will not be considered for renewal of permission in that Academic Year.

(b) Colleges in the stage from III renewal (i.e., Admission of fourth batch) till recognition of the institute for award of M.B.B.S. degree:

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 70% such an institute will not be considered for renewal of permission in that Academic Year.

(c) Colleges which are already recognized for award of M.B.B.S. degree and/or running Postgraduate Courses:

If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 10% and/or bed occupancy is < 80%, such an institute will not be considered for processing applications for postgraduate courses in that Academic Year and will be issued show cause notices as to why the recommendation for withdrawal of recognition of the courses run by that institute should not be made for Undergraduate and Postgraduate courses which are recognized u/s. 11(2) of the IMC Act, 1956 along with direction of stoppage of admissions in permitted Postgraduate courses.

10. It needs no emphasis that a medical student requires grueling study for which proper facilities must be available in a medical college, the hospital attached to it should be well equipped, and the teaching faculty and doctors must be competent enough to ensure that, when a medical student comes out, he is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges with inadequate facilities of teaching, and lack of exposure to the patients and their ailments during the course of their study. Manohar Lal Sharma Vs. M.C.I. and Others, ; Medical Council of India Vs. State of Karnataka and Others, The Regulations, framed by the MCI u/s 33 of the Act, stipulate the infrastructural and institutional facilities to be provided by a medical college with an attached hospital, and are mandatory in character. K.S. Bhoir Vs. State of Maharashtra and Others, Manohar Lal Sharma Vs. M.C.I. and Others, and Dr Preeti Srivastava and Another Vs. State of M.P. and Others, . In the absence of compliance with the mandatory requirements of the Act and the Regulations, no permission can be granted K.S. Bhoir Vs. State of Maharashtra and Others, . After evaluation of the application/scheme, submitted by the applicants, verification takes place and a physical inspection is conducted by a team of inspectors of the MCI. The letter of permission, if any granted by the Board of Governors enabling the applicant to make admissions in the first year MBBS course, is renewed each year subject to the college achieving the yearly target specified in the Regulations. The Board of Governors have no power to dilute the statutory requirements mentioned in these Regulations. Manohar Lal Sharma Vs. M.C.I. and Others,

11. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place the full complement of teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college would be catering only to a limited number of first year students. During the second, third, fourth and fifth years, the students strength increases. Thereafter, the strength may remain constant. As the strength increases gradually every year, the infrastructure and faculty will have to be increased correspondingly. Priya Darshni Dental College and Hospital Vs. Union of India (UOI) and Others, . While deciding to grant or refuse permission, the MCI is not functioning as a quasi-judicial authority, but only as an administrative authority. Regulation 8(3)(1) provides only for an "opportunity and time to rectify the deficiencies". A compliance report is called for only to ascertain whether the deficiencies pointed out were rectified or not. If the MCI is not satisfied with the manner of compliance, it can conduct a surprise inspection. After that, no further time or opportunity to rectify the deficiencies is contemplated, nor further opportunity of being heard is provided. A surprise inspection contemplates no notice for, if notice is given in advance, it would not be a surprise inspection and will give room for the college to hoodwink the assessors by making perfect what was imperfect. Surprise inspection is conducted to ascertain whether the compliance report can be accepted, and to ascertain whether the deficiencies pointed out in the regular inspection were rectified or not. By pointing out the deficiencies, the MCI is giving an opportunity to the college to rectify the deficiencies, if any, noticed by the inspection team. It is the duty of the college to submit the compliance report after rectifying the deficiencies. The MCI can conduct a surprise inspection to ascertain whether the deficiencies are rectified, and whether the compliance report should be accepted or not Manohar Lal Sharma Vs. M.C.I. and Others,

II. Provisos (a) to (c) of Regulation 8(3)(i) - its Effect:

12. While Regulation 8(3)(1) provides for an opportunity to be provided to the medical college to rectify the deficiencies, the question which arise for consideration is whether such an opportunity is required to be provided for the deficiencies referred to in the "provisos" also. It is in this context that the scope of a "proviso" needs to be examined. A statutory proviso "is something engrafted on a preceding enactment". The proviso hath diverse operations. Sometime it worked a qualification or limitation; sometime a condition; and sometime a covenant Binani Industries Ltd., Kerala Vs. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore and Others, . A proviso, to a statutory provision, has several functions and, while interpreting a statutory provision, the court is required to carefully scrutinise and find out the real object of the proviso appended to that provision. It is not a proper rule of interpretation of a proviso that the enacting part or the main part of the provision be construed first without reference to the proviso and, if the same is found to be ambiguous, only then recourse may be had to examine the proviso. On the other hand the accepted rule of interpretation is that a provision and the proviso thereto must be construed as a whole. A proviso is normally used to remove special cases from the general enactment and provide for them specially. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision a portion which, but for the proviso, would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself. J.K. Industries Ltd. and Others Vs. Chief Inspector of Factories and Boilers and Others, ; The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, . A proviso cannot be torn apart from the main Section nor can it be used to nullify or set at naught the real object of the main Section. S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, ; Craies: Statute Law 7th Edn.). A proviso must be construed harmoniously with the main enactment. Abdul Jabar Butt Vs. State of Jammu and Kashmir, ; The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, ; Ram Narain Sons Ltd. Vs. Asst. Commissioner of Sales Tax and Others, ; and State of Punjab Vs. Kailash Nath,

13. It is settled rule of statutory construction that "the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case". AIR 1944 71 (Privy Council); Holani Auto Links Pvt. Ltd. Vs. State of Madhya Pradesh, ; The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, ; A.N. Sehgal v. Raje Ram Sheoran 1992 SUPPL. (2) SCC 651). A proviso is a qualification of the preceding provision, and is not to be interpreted as stating a general rule. Haryana State Cooperative Land Development Bank Ltd. Vs. Haryana State Cooperative Land Development Banks Employees Union and Another, ; Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, The Calcutta Tramways Co. Ltd. Vs. The Corporation of Calcutta, ; A.N. Sehgal 1992 SUPPL. (2) SCC 651 Tribhovandas Haribhai Tamboli Vs. Gujarat Revenue Tribunal and others, and Kerala State Housing Board and Others Vs. Ramapriya Hotels (P) Ltd. and Others, . A proviso, to a particular provision of a statute, only embraces the field which is covered by the said provision. It carves out an exception to the provision to which it has been enacted as a proviso, and to no other. The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, A.N. Sehgal 1992 SUPPL. (2) SCC 651; Tribhovandas Haribhai Tamboli Vs. Gujarat Revenue Tribunal and others, Kerala State Housing Board and Others Vs. Ramapriya Hotels (P) Ltd. and Others, Binani Industries Ltd., Kerala Vs. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore and Others, ; AIR 1944 71 (Privy Council) , 122 : AIR 1944 PC 71; Nagar Palika Nigam Vs. Krishi Upaj Mandi Samiti and Others, Ram Narain Sons Ltd. (1955) 2 SCR 483). When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. ( Binani Industries Ltd., Kerala Vs. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore and Others, Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, ; The Calcutta Tramways Co. Ltd. Vs. The Corporation of Calcutta, Kerala State Housing Board and Others Vs. Ramapriya Hotels (P) Ltd. and Others, ). The effect of the benefit, extended by the main part of the rule, can be nullified or taken away by a proviso. M/s. Hyderabad Asbestos Cement Products and Another Vs. Union of India and Others,

14. A proviso must be limited to the subject-matter of the enacting clause. It must, prima facie, be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such a manner that they mutually throw light on each other and result in a harmonious construction. Dwarka Prasad Vs. Dwarka Das Saraf, . The sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. Tahsildar Singh and Another Vs. The State of Uttar Pradesh, ; Maxwell''s Interpretation of Statutes, 10th Edn., at p. 162). The ordinary and proper function of a proviso, coming after a general enactment, is to limit that general enactment in certain instances. (Jennings v. Kelly 1940 AC 206: (1939) 4 All ER 464 (HL); Binani Industries Ltd., Kerala Vs. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore and Others, .

15. The minimum bed occupancy requirement, under provisos (a) to (c) to Regulation 8(3)(i), varies from batch to batch. While the minimum bed occupancy is 60% for admission of the third batch it increases to 70% for admission of the fourth batch and for colleges, which are already recognized for award of the MBBS course, the minimum bed occupancy requirement is 80%. In the case on hand, the 2nd petitioner-College has been found deficient, in its bed occupancy requirement, on the day of its inspection. The proper function of provisos (a) to (c) is to except, limit and deal with cases which would otherwise fall within the general language of Regulation 8(3)(i). While the deficiencies in achievement of the annual targets specified in the Regulations are required under Regulation 8(3)(i) to be conveyed, and time and opportunity given to the college to rectify them, the deficiencies mentioned in the provisos thereto, relating to teaching faculty, residents and bed occupancy, stand on a different footing and the college is not entitled to an opportunity to rectify them. A proviso is also required to be read with the main Regulation and construed harmoniously. On a conjoint reading and a harmonious construction of Regulation 8(3)(1) and provisos (a) to (c) thereunder the deficiencies, for which an opportunity is required to be provided to the institution and time granted to rectify them, are other than those referred to in the provisos. It is evident, therefore, that the deficiencies in teaching faculty and/or residents and/or bed occupancy are fatal, and no opportunity can or need be given to the subject medical college for rectification of such deficiencies.

16. As a general rule, in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity. J.K. Industries Ltd. and Others Vs. Chief Inspector of Factories and Boilers and Others, . It would not be a reasonable construction of any statute to say that a proviso, which in terms purports to create an exception, should be held to be otiose and to have achieved nothing. Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, ). A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. ( Tahsildar Singh and Another Vs. The State of Uttar Pradesh, .

17. Accepting the submission of Sri C.V. Mohan Reddy, learned Senior Counsel, that, even for the deficiencies mentioned in the provisos, the college would be entitled for an opportunity to rectify them would render the provisos otiose and unnecessary. If an opportunity of rectification is required to be provided even for the deficiencies mentioned in provisos (a) to (c), it was wholly unnecessary for the rule making authority to prescribe the provisos, as Regulation 8(3)(i) would have sufficed to deal with the situation and provisos (a) to (c) would be inapposite surplus sage. Both on a literal, and on a harmonious, construction of Regulation 8(3)(i) and its provisos, the interpretation suggested by the Learned Senior Counsel does not merit acceptance. As the "bed occupancy" requirement, under the provisos to Regulation 8(3)(i), are deficiencies which cannot be rectified, the data furnished by the college to the M.C.I., regarding "bed occupancy" after the dates of inspection on 8th and 9th March, are irrelevant. It is wholly unnecessary for this Court, therefore, to deal with the submission of Sri C.V. Mohan Reddy, learned Senior Counsel, that though the 2nd petitioner had submitted data regarding bed occupancy for the period 10.03.2013 to 20.06.2013, in support of their submission that the bed occupancy satisfied the norm of 70%, the 2nd respondent had taken into consideration the data only for the period 10.03.2013 to 20.03.2013 without any rationale, and had concluded that the bed occupancy was only 67.1%.

III. Contemporaneo Expositio:

18. Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioners, would submit that matters which are understood and implemented as a legal practice for long, and is supported by the basic rule of law, should then be accepted as part of the interpretative process with the aid of the doctrine of contemporanea exposition; there is abundant evidence on record to show that the MCI has understood the rule to mean that the bed occupancy and the faculty deficiencies are rectifiable, after an opportunity is given to the college to do so; such an opportunity was, in fact, granted to Karuna Medical College, Palakkad to rectify its "bed occupancy" deficiency which was a mere 13% and, after an opportunity was afforded, the deficiency was rectified and, on the next inspection, was found to have increased to 60%; and though this deficiency remained less than the prescribed bed strength of 70%, the MCI had granted renewal of permission to the said college.

19. Where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time. ( National and Grindlays Bank Ltd. Vs. The Municipal Corporation of Greater, Bombay, . The terms of the statute can well be construed by reference to such exposition, in the absence of anything in the statute to indicate to the contrary. ( State of Tamil Nadu Vs. Mahi Traders and Others, ; Desh Bandhu Gupta and Co. and Others Vs. Delhi Stock Exchange Association Ltd., and K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, Contemporanea expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes ( Bakhtawar Singh Bal Kishan Vs. Union of India (UOI) and Ors, , but not to interpreting Acts which are comparatively modern. ( The Senior Electric Inspector and Others Vs. Laxmi Narayan Chopra and Others, ; and J.K. Cotton Spinning and Weaving Mills Ltd. and Anr Vs. Union of India (UOI) and Ors, Even if the MCI, which dealt with the statutory regulations, understood its requirements in another sense, such mistaken construction of the Regulation and its provisos does not bind the court so as to prevent it from giving it its true construction. ( National and Grindlays Bank Ltd. Vs. The Municipal Corporation of Greater, Bombay, M/s. Punjab Traders and others Vs. State of Punjab Traders and others, The rule of construction, by reference to contemporanea expositio, must give way where the language of the statute is plain and unambiguous. K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, . As the language of Regulation 8(3)(i) and its provisos are clear and unambiguous, and the only possible construction is that no opportunity can or need be given to the college to rectify the deficiencies referred to in the provisos, the rule of construction, by reference to contemporaneo exposition, must give way.

IV. Observations During the Regular Inspection are not Confined Only to the Date of Inspection but Include those Which are Noticed on Verification of the Records:

20. While examining the scope and application of Regulation 8(3)(i) and its provisos, it must be borne in mind that the MCI, on the basis of the reports - regular and compliance, is legally obliged to form an opinion on the capacity of the college to provide necessary facilities in respect of staff, equipments, accommodation, training etc. to ensure proper functioning of the medical college or for increase of its admission capacity. ( Manohar Lal Sharma Vs. M.C.I. and Others, The assessment form, statutorily prescribed by the M.C.I., is required to be filled by the assessors when they cause inspection of the medical college and the various infrastructural and instructional facilities offered by it. Clause 2.6 of the assessment form relates to clinical material, and requires the assessors to randomly verify the monthly data and compute the daily average of bed occupancy for three randomly selected months. Annexure-VI is the tabular form whereunder separate columns are provided for the daily average (for the last three randomly selected months), and for "the day of the assessment". The application submitted by the 2nd petitioner-College was for admission to the fourth batch of MBBS students, and it is proviso (b) of Regulation 8(3)(1), whereunder the minimum bed occupancy is prescribed as 70%, which is attracted. It is in this context that the requirements of proviso (b) to Regulation 8(3)(1) needs to be examined. From the words used therein, i.e. "if it is observed during any regular inspection of the institution", it is clear that the observations of the assessors, during a regular inspection, is not confined merely to the bed occupancy on the day of inspection. When proviso (b) is read along with the statutory assessment form, it is clear that the expression "if it is observed during any regular inspection" would require the assessors to observe the bed occupancy for both "the daily average for the last three randomly selected months" and "on the day of inspection". The percentage of bed occupancy of the 2nd petitioner-College, calculated on a daily average for the last three randomly selected months, as noted by the assessors during the course of their inspection on 09.03.2013, was 75% (more than the stipulated minimum of 70%). However the bed occupancy, on the day of inspection, was only 50% far less than the minimum stipulated 70%.

21. While a strict adherence to the statutory regulations is imperative to ensure maintenance of high standards of medical education, the respondents cannot also be permitted, under the guise of ensuring such high standards, to act arbitrarily as the petitioners have the fundamental right, to establish and run institutions of higher learning, under Article 19(1)(g) of the Constitution of India. It is the duty of the State, under the directive principles of state policy enshrined in Article 41 of the Constitution, not only to establish educational institutions but also to effectively secure the right to education. The State is, admittedly, in no position to perform its sovereign function of imparting education. Such functions are, necessarily, required to be performed by private actors. As it is not in a position to establish colleges with its financial resources, the State Governments have evolved a policy to encourage setting up of private colleges. ( Teja Educational Society Vs. A.P. State Council of Higher Education, Hyderabad and Others, ; Election Commission of India Vs. St. Mary''s School and Others, ; Brown v. Board of Education 98 L Ed 873 : 347 US 483 1954). Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education, and the inability or unwillingness of the Government to provide the necessary support, has brought private higher education to the forefront. The fundamental right to establish and administer educational institutions, under Article 19(1)(g) of the Constitution of India, broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of its employees. ( Society for Un-aided Private Schools of Rajasthan Vs. Union of India (UOI) and Another, ; T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others,

22. It is a matter of common knowledge that establishing a medical college, with an attached hospital, requires huge investment running into several crores of rupees. The infrastructural and instructional facilities, statutorily required to be provided by the medical college, would not only involve a huge initial financial investment, but would also require the management of the institution to periodically and regularly incur expenditure in crores. If a college were to be refused renewal of permission, merely on the ground that the bed occupancy on a single day is less than the statutorily prescribed minimum, it would result in disastrous consequences. The bed occupancy of a teaching hospital, on a particular day, may fall below the statutorily prescribed minimum for reasons beyond the control of the management of the institution - bandhs, floods, earthquakes or other natural calamities may well result in such an eventuality. Penalizing the medical college, with refusal to renew permission for an entire academic year, merely on the ground that the bed occupancy on a single day was below the minimum stipulated percentage, is not only irrational, arbitrary and in violation of Article 14 of the Constitution of India but would also result in rendering the other statutory requirement, of ascertaining "the daily average for the randomly selected three months", redundant. The prescription of the daily average, for the past three randomly selected months, is to enable the M.C.I. to satisfy itself that, on an average, the daily bed occupancy is more than the statutorily prescribed minimum of 70%. It also safe-guards an institution from being needlessly penalized for a fall in the bed occupancy, below the statutorily prescribed minimum, on a single day.

23. The requirement of the bed occupancy on the day of inspection, satisfying the minimum stipulated percentage under the provisos to Regulation 8(3)(1), cannot also be ignored or treated as inapposite surplus sage. A conjoint reading of both the requirements - (1) the daily average for three randomly selected months and (2) on the day of inspection - makes it clear that if the assessors observe, during the course of inspection of the institution, that the records, produced by the medical college for inspection, are cooked-up and the data reflected therein are suspect, the bed occupancy on the day of inspection would assume significance. Lack of the minimum statutorily stipulated bed occupancy on the day of inspection, when examined in the light of the incredulous data placed before the assessors by the college, may necessitate a stringent view being taken against them by the M.C.I.

24. It is not even the case of the respondents that the daily average bed occupancy of 75% for three randomly selected months, (as noted by the assessors in their inspection report), is a figure conjured by the petitioners or is not supported by the data reflected in the records produced by them. Refusal of renewal of permission should neither be abrupt nor for insignificant or technical violations. The application of the medical college should also not be dealt in a casual manner. The object of providing for annual renewal of permissions for four years is to ensure that the infrastructural and faculty requirements are fulfilled in a gradual manner, and not to cause disruption. ( Priya Darshni Dental College and Hospital Vs. Union of India (UOI) and Others, ). In the absence of any finding being recorded, either by the assessors or by the M.C.I., that the daily average of three randomly selected months is below the statutorily stipulated minimum or that the records relating to the bed occupancy are not genuine, refusal to renew permission to the petitioner-college, solely on account of the bed occupancy falling below the statutorily prescribed minimum on a single day, is arbitrary, irrational and in violation of the petitioner''s fundamental rights under Article 14 of the Constitution of India.

V. Selective Application, of Regulation 8(3)(I) and its Provisos, is also Discriminatory:

25. A party seeking relief, on the ground of discrimination, must take appropriate pleadings, lay down the factual foundation and must provide details of comparable cases so that the court may, after assessing the facts of both sets of cases together, reach a conclusion whether the authorities have actually discriminated against that party; and whether there is in fact any justification for the discrimination. The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Others, ).

26. In the affidavit filed in support of the writ petition, the petitioners claim that the action of the 2nd respondent is discriminatory and several other colleges, with deficiencies relating to "bed occupancy", were accorded renewal of permission. In the affidavit, filed in support of W.P.M.P. No. 37337 of 2013, the petitioners stated that the 2nd respondent had conducted regular inspection of Thiruvarur Government College, Thiruvarur; Government Medical College, Kannauj and Vardhaman Institute of Medical Sciences, Nalanda, wherein the "bed occupancy" was less than the minimum stipulated 70% despite which these three colleges were granted renewal of permission for the academic year 2013-2014. Copies of the relevant assessors report, and the orders renewing permission to them for the year 2013-2013, were annexed thereto. In their counter-affidavit, filed to W.P.M.P. No. 37337 of 2013, it is stated, on behalf of the M.C.I., that Vardhaman Institute of Medical Sciences, Nalanda, for which permission was sought for the year 2013-2014 with an admission capacity of 100 MBBS students, was established by the Government of Bihar; the application of the college was considered and, as per the requirement of Regulation 8(3)(1)(a), the minimum requirement of bed occupancy was 60% and not 65%; Baba Saheb Dr. Bhim Rao Ambedkar Medical College, established by the Government of U.P., was considered for admission of the second batch of 100 MBBS students for the academic year 2013-2014; their daily average, of three months of IPD patients, was 60%; the data submitted by Government Medical Colleges are reliable and are, therefore, given due consideration; the Board of Governors had obtained a letter from the Principal Secretary, Medical Education Department, Government of U.P. dated 28.06.2013, that all necessary efforts would be made to rectify the shortages; further documentary proof of budget allotment for the proposed project, aimed to rectify the deficiency, was referred to in the said letter; the M.C.I. had granted permission for renewal subject to the said undertaking; the OPD attendance of Thiruvarur Government Medical College was 1100 and, on the date of inspection, it was 1050; and, though the bed occupancy was on the lower side, the Board of Governors deemed it appropriate, having regard to the overall factor of high availability of clinical material, to grant permission of renewal to them.

27. In their affidavit, filed in reply thereto, the petitioners have referred to Karuna Medical College, (a private medical college) which was granted the third stage renewal on 25.06.2011 though, on the date of inspection, the said College had a bed occupancy of merely 13%; the said college was issued notice by the M.C.I. to rectify the deficiencies; and, after such an opportunity was granted, the bed occupancy was revised to 70% and 50% respectively.

28. In the additional affidavit filed on behalf of M.C.I. dated 03.12.2013, it is stated that information has been compiled by them in a tabular form for the academic years 2011-2012, 2012-2013 and 2013-2014 which was being filed along with the affidavit; the information showed that the requirement of bed occupancy have been met, by and large, in all cases; in one or two cases, relating to the government medical colleges, the M.C.I. had acted on the undertaking given by Chief Secretary of the concerned State; for the North-Eastern States the bed occupancy requirement, at the stage of grant of letter of permission, is only 50%; Karuna Medical College, Palakkad had a bed occupancy of 60% on the date of assessment as per the compliance verification report dated 04.06.2011; the assessors had observed that the bed occupancy was 60%, and had noted in the remarks column that other clinical material was adequate, and the deficiency had been complied with; and the Board of Governors, based on the said observation, may have permitted renewal of permission for the sixth batch of students to Karuna Medical College.

29. Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioners, would submit that the data now furnished by the MCI discloses that several medical colleges were granted permission/renewal of permission though their "bed occupancy" compliance was far below the statutorily stipulated minimum; and the statutory regulations make no distinction between government and private medical colleges in so far as the "bed occupancy" requirement is concerned. On the other hand, Sri C. Gunaranjan, Learned Standing Counsel for MCI, would submit that all the three colleges, referred to in the WPMP, were Government Medical Colleges; it has been the experience of M.C.I. that the data, regarding clinical material availability, was accurate in government colleges and clinical material (patients) were in abundance; comparison of the data of government medical colleges with the petitioners'' private medical college is misconceived; even in the Regulations, government medical colleges are treated differently in as much as the fee for inspection of a government medical colleges is half the fee for private medical colleges; government medical colleges are also not required to submit bank guarantees in terms of the Regulations, which private medical colleges are required to furnish; the M.C.I., without compromising the standard of medical education, had endeavoured to consider the cases of government medical colleges in larger public interest; further there is no issue of capitation fee in government medical colleges; the satisfaction of the Board of Governors, u/s 10A(7) of the Act, is subjective and is based on the material placed before it; the satisfaction of the Board of Governors that the colleges, whose "bed occupancy" is below the stipulated minimum, would be in a position to meet the minimum requirements of the Regulations cannot be said to be erroneous or without any material; and comparison between government medical colleges and private entities is without any basis.

A. Is the Classification of Medical Colleges, for the Purposes of Satisfying the "Bed Occupancy" Requirement of the Regulations, into Government and Private Colleges, Valid?

30. A valid classification based on a just objective is truly a valid discrimination. The result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. Legalistically, the test for a valid classification may be summarized as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. ( Kallakkurichi Taluk Retired Official Association, Tamilnadu and Others etc. etc Vs. State of Tamilnadu and Others etc. etc, ). Every instance of discrimination does not necessarily fall within the ambit of Article 14 of the Constitution. Discrimination means an unjust, an unfair action in favour of one and against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Others, Narmada Bachao Andolan Vs. State of Madhya Pradesh and Another, ; Madhu Kishwar v. State of Bihar (1966) 5 SCC 125). Classification must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. ( State of Maharashtra and Another Vs. Indian Hotel and Restaurants Assn. and Others, The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, . To pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases. What is necessary is that there must be a nexus between the basis of classification and the object of the provision under consideration State of Maharashtra and Another Vs. Indian Hotel and Restaurants Assn. and Others, ; Budhan Choudhry and Others Vs. The State of Bihar, . Classification, to be valid under Article 14, need not necessarily fall within an exact or a scientific formula for exclusion or inclusion of persons or things. There is no requirement of mathematical exactness or for doctrinaire tests to be applied for determining the validity, as long as it is not palpably arbitrary. ( State of Maharashtra and Another Vs. Indian Hotel and Restaurants Assn. and Others, Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, Welfare Assocn. A.R.P., Maharashtra and Another Vs. Ranjit P. Gohil and Others, Shashikant Laxman Kale and Another Vs. Union of India (UOI) and Another, ). So long as there is a nexus between the basis of classification and the object sought to be achieved, the classification is valid. ( The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, ).

31. While the Regulations prescribe half the fee, stipulated for a private medical college, for inspection of a government medical college and do not require them, unlike private institutions, to submit a bank guarantee, they make no distinction between Government Medical Colleges and Private Medical Colleges in so far as the requirement of "bed occupancy" is concerned. The object of the provisos to Regulation 8(3)(i) of prescribing a minimum bed occupancy requirement is to ensure high standards of medical education. While government medical colleges and private medical colleges may constitute two different classes, such a classification has no nexus with the aforesaid object and does not satisfy the test of a valid classification. As the classification between government medical colleges and private medical institutions, in so far as the "bed occupancy" requirement of the Regulations is concerned, is not a valid classification, the MCI has discriminated against the petitioners in not extending to them a concession which it had given to government medical colleges.

32. In enforcing its statutory obligations, of ensuring maintenance of high standards of medical education, the M.C.I. cannot apply different yardsticks to Government Medical Colleges on the one hand, and Private Medical Colleges on the other, as the deficiency of "bed occupancy" in both Government and Private Medial Colleges would result in a fall in the standards of medical education. The test ought not to be what would be a ''better'' basis for the categorization for that would introduce subjectivity in the process. The test is whether categorization, on the basis adopted, results in hostile discrimination and adoption of the criteria has no reasonable nexus with the object sought to be achieved. ( Samaj Parivartana Samudaya and Others Vs. State of Karnataka and Others, . If there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, State of Maharashtra and Another Vs. Indian Hotel and Restaurants Assn. and Others, ; Shashikant Laxman Kale and Another Vs. Union of India (UOI) and Another, As the Regulations do not exempt government medical colleges from the "bed occupancy" requirement, the MCI could not have extended them any relaxation of this requirement, which it has chosen not to extend to the petitioner college. If the MCI intended to make a departure from the standards laid down in the Regulations, or for carving out an exception in favour of any identifiable class of persons, it should then have amended the Regulations after previous sanction of the Central Government. The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others,

33. In Dr. B.R. Ambedkar Medical College and Others Vs. Union of India (UOI) and Another, the notification, under challenge before the Supreme Court, related to enhancement of the annual intake capacity of undergraduate medical courses in medical colleges for the academic year 2013-2014, only to government medical colleges. The Establishment of Medical College Regulations (Amendment) 2012, provides for a time schedule for the M.C.I. to grant letters of permission for establishment of a medical college as well as an increase in admission capacity in the MBBS course. The note, to the schedule to the aforesaid Regulations, stipulates that the time schedule, prescribed in the schedule, may be modified by the Central Government, for reasons to be recorded in writing, in respect of any class or category of applications. The last date prescribed in the schedule for receipt of applications by the Board of Governors of the M.C.I., was 15th July, 2013. This was modified by the Central Government to 24th July, 2013. The Supreme Court observed that Section 3C of the Indian Medical Council Act required the Board of Governors of the M.C.I. to be bound by such directions, on questions of policy, as the Central Government may give in writing to it from time to time; and as power is vested with the Central Government, to modify the time schedule in respect of a class or category of applications, their decision to extend the last date from 15th July, 2013 to 24th July, 2013 was in order. Reliance placed by Sri C. Gunaranjan, Learned Standing Counsel for M.C.I. on the judgment of the Supreme Court in Dr. B.R. Ambedkar Medical College and Others Vs. Union of India (UOI) and Another, is misplaced as the ''bed occupancy'' requirement, stipulated under the Regulations, was neither in issue therein nor is it the case of the MCI that they have obtained permission of the Central Government before exempting Government medical colleges from the minimum "bed occupancy" requirement.

34. The data furnished to this Court by the MCI, along with their affidavit dated 30.11.2013, makes startling reading. As it reflects the whimsical ways of the MCI, in according/refusing renewal of permission even for a fall in the "bed occupancy requirement" below the statutorily stipulated minimum, it is necessary to make a detailed reference thereto. The data furnished by the M.C.I. is referred to hereunder in three tables.

^(Table)

35. Not mentioned in MCI reply dated 30.11.2013. Even if we consider J and K a Hill State with relaxed requirements, there requires to be a 60% occupancy, which is not fulfilled.

36. Assessment date was 22.01.2013, and no further assessment were done. The case was taken up on the BOG meeting on 02.07.2013 and the permission was granted based on "Considered by the BOG and approved to admit students".

37. From the aforesaid tables, it is evident that M.C.I. has arbitrarily and whimsically exercised its power to grant or refuse renewal of permission to medical colleges. No explanation, much less one which can be said to reasonable, is forthcoming for their selective application of the "bed occupancy requirement" of the Regulations. While the scope of judicial review in academic matters is extremely limited, and the recommendations/decisions of expert bodies should not be lightly interfered with, the court is bound to intervene where statutory authorities act contrary to the provisions of a statute - plenary or subordinate - or their action is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India.

B. Can Selective Application of the Regulations Be Justified on the Plea of Subjective Satisfaction?

38. Exempting Karuna Medical College, Palakkad (a private medical college), and other medical colleges, from complying with the ''bed occupancy'' requirement of the Regulations cannot be justified by the M.C.I. on the ground that the exercise of power is based on its subjective satisfaction. Formation of opinion must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, ; Devinder Singh and Others Vs. State of Punjab and Others, . The competent authority is required to form an opinion from circumstances suggesting what is set out in the Act and the Regulations. Even if the formation of opinion is subjective the existence of circumstances, relevant to the inference as the sine qua non for action, must be demonstrable The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Swadeshi Cotton Mills Vs. Union of India (UOI), . If the satisfaction, in regard to the existence of any of the conditions stipulated in the Act and the Regulations, is based on no evidence or on irrelevant evidence or on extraneous considerations, the Court will be justified in quashing such an illegal order. ( Swadeshi Cotton Mills Vs. Union of India (UOI), .

39. In the formation of opinion regard must be had to all the factors relevant for the exercise of that power. Formation of opinion must be based on objective considerations. India Cement Ltd. etc. Vs. Union of India and others, , Rajesh Kumar v. Dy. CIT (2007) 2 SCC 181). There must exist circumstances which, in the opinion of the competent authority, suggest what has been set out in Act and the Regulations. Existence of such circumstances is a condition precedent for formation of the required opinion and, if the existence of those conditions is challenged, Courts are entitled to examine whether those circumstances existed when the order was made. Rohtas Industries Vs. S.D. Agarwal and Others, . If it is shown that the circumstances do not exist, or that they are such that it is impossible for any one to form an opinion therefrom, the opinion can be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the Statute. ( The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, ). Formation of opinion by the M.C.I., to grant exemption to a few select medical colleges from the ''bed occupancy'' requirement, falls foul of the statutory Regulations and is, therefore, illegal. Subjective satisfaction does not justify whimsical application of the law.

C. Exercise of Discretion to Grant or Refuse Renewal of Permission Must Not Only be in Accordance with the Regulations But Should Also be Reasonable:

40. While a feeble attempt was made by Sri C. Gunaranjan, Learned Standing Counsel for the M.C.I., to gloss over the flagrant acts of discrimination by the M.C.I., contending that no mandamus can be issued to perpetuate an illegality, it would be wholly inappropriate for this Court to exercise judicial restraint on this specious plea, and permit M.C.I. to arbitrarily pick and choose medical colleges for grant of, or to refuse, renewal of permission, from among all of those who have failed to comply with the "bed occupancy" requirement. Exercise of discretion to grant or refuse permission should not only be in accordance with the statutory regulations, but must also be uniform and reasonable. Discretion must be bound with the rule of reason and law. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought. In other words he must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably. The word ''unreasonable'' is frequently used as a general description of the things that must not be done. A person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably''. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. The rule of reason has thus become a generalized rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as ''irrelevant considerations'', and mistakes and misunderstandings which can be classed as self-misdirection. (Administrative Law: HWR Wade and C.F. Forsyth - Tenth Edition). Greater the power, greater the caution in its exercise. Selective and irrational application of the statutory regulations would necessitate action being taken by the Government of India to clean up the augean stables of the MCI. Unless this unseemly mess is sorted out at the earliest, and the MCI house put back in order, it would spell the doom of maintenance of high standards of medical education in this country, and leave medical colleges to the mercy of the officials of the M.C.I. Capricious exercise of statutory power, and indifference to the plight of the medial colleges and its students, would not only financially cripple such institutions forever, but also destroy the career of students undergoing medical education thereat. Vagarious and irrational enforcement by the MCI, of the statutory regulations, necessitates immediate course correction. The Government of India would do well to cause an enquiry into, and ascertain the reasons for, the arbitrary application of the Regulations by the MCI and why it has adopted a "pick and choose method" in according permission to medical colleges which have not satisfied the "bed occupancy" requirement of the Regulations. While the impugned order of the MCI dated 10.09.2013 must be set aside, the next question which needs to be examined is the nature of relief which the petitioner is entitled to be granted?

V. TIME SCHEDULE FIXED UNDER THE REGULATIONS: CAN IT BE RELAXED BY THE COURT:

41. Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioners, would submit that the time schedule for admissions, as fixed under the Establishment of Medical College Regulations, can be relaxed; and the 2nd respondent cannot take advantage of its illegal action in taking its own time in rejecting the petitioner''s request, and then turn around and contend that the time schedule fixed cannot be relaxed.

42. On the other hand Sri C. Gunaranjan, Learned Standing Counsel for the M.C.I., would submit that the Regulations provide a schedule for making applications, and passing orders on the applications for increase/starting of a medical college; and the date for issuance of the letter of permission is 15th June which was extended upto 15th July, 2013; the M.C.I. is required to strictly adhere to the time schedule mentioned in the Regulations; the last date for grant of renewal of permission, for MBBS course for the academic year 2013-14, is only upto 15th July 2013; and the Board of Governors (BOG) cannot now grant permission for the academic year 2013-14.

43. Reliance placed on behalf of the MCI, on the judgment of Supreme Court in Board of Governors v. Kushal Educational Trust Order dated 21.10.2013 passed in SLP No. 32731 of 2013, to contend that, as the Supreme Court had directed the M.C.I. to apprise the High Court that it was also not entertaining any matter relating to MBBS or Post Graduate Medical Courses for the year 2013-2014, this Court should refrain from interference is misplaced. The issue which fell for consideration in the aforesaid judgment of the Supreme Court has no relevance to the facts of the present case or the issues which arise for consideration herein.

44. In The Board of Governors in Super-cession of the MCI rep. by its Secretary v. Tagore Medical College and Hospital rep. by its Dean Dr. S. Shantha Rathinamangalam Judgment in WA No. 1638 of 2013, dt. 07.08.2013, a Division Bench of the Madras High Court held:-

............ The learned counsel appearing for the appellant by referring to the decision in Priya Gupta, (supra) submitted that no renewal of permission could be granted beyond 15th July of each calendar year. However, in the case on hand we have found that the appellant did not apply their mind to the compliance verification assessment report and the UG committee while analysing the report appears to have applied the norms fixed for the fourth renewal when in fact the respondent institution had submitted their application for the third renewal. Furthermore, no reasons were assigned either in the resolution of the appellant or in the impugned order dated 14.07.2013, and a vague statement has been made stating that there are large number of deficiencies still persisting.

.............Thus, when there is arbitrariness in the action of the appellant and when decision has been taken without assigning any reason, it clearly offends Article 14 of the Constitution and in such circumstances, this Court is not denuded of its jurisdiction in issuing appropriate directions to meet the ends of justice. That apart, the last date for completion of all admissions to the medical course is yet to be over and it comes to an end only on 30.09.2013. Though the respondent was unsuccessful before the High Court of Delhi in respect of the grant of renewal of permission for the academic year 2012-13, that would not disable or disentitle the respondent from seeking for renewal of approval for the year 2013-14, which has been independently assessed by the appellant.

Therefore, the respondent cannot be non-suited on this ground.....

45. In Madha Medical College and Hospital v. Union of India Judgment in W.A. No. 1600 of 2013 and M.P. Nos. 1 and 2 of 2013 dated 14.08.2013, another Division Bench of the Madras High Court directed the Inspection Committee of the M.C.I. to inspect the medical college and find out whether the deficiencies pointed out in the earlier report were complied with or not. The M.C.I. was directed to complete the exercise and pass final orders, in accordance with law, within a period of two weeks from the date of receipt of a copy of the order. The Division Bench held that, since it had set aside the earlier order of the M.C.I., the time limit prescribed by the Supreme Court for admission to the current academic year need not be put against the college. Reliance placed on behalf of the petitioners, on the aforesaid judgments of the Madras High Court, is also misplaced as the law laid down by the Supreme Court, in the judgments referred to hereinafter, prohibit Courts from extending the time, prescribed in the Regulations, for grant of renewal of permission.

46. In State of Bihar and others Vs. Dr. Sanjay Kumar Sinha and others, , the Supreme Court held that everyone, including the States, the Union Territories and other authorities running Medical Colleges, must strictly follow the time schedule; and everyone concerned should strictly comply with the time-frame. In Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, , the Supreme Court held that there was a necessity for specifically providing the time schedule for the course, and fixing the period during which admissions can take place; no admission can be granted after the scheduled date which, essentially, should be the date for commencement of the course; no variation of the schedule, so far as admissions are concerned, shall be allowed; and, in case of any deviation by the concerned institution, action as prescribed should be taken by the MCI. In Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, the Supreme Court issued several directions including that the time schedule, provided for in the Regulations, should be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded against. In Priya Darshni Dental College and Hospital Vs. Union of India (UOI) and Others, the Supreme Court observed that Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, primarily dealt with the time schedule for completion of the admission process for medical colleges; and the stipulation of 15th July as the last date, for letters of permission to be issued by the Central Government, is an extract from the Medical Council of India Establishment of Medical College Regulations, 1999. In Priya Gupta Vs. State of Chhatishgarh and Others, the Supreme Court held that the statutory regulations should be enforced so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance; these schedules were prescribed upon serious consideration; and they cannot be moulded to suit the convenience of some economic or other interests of any institution, especially in a manner that is bound to result in compromise of principles. The Supreme Court directed that commencement of new courses, or increase in the seats of existing MBBS courses, should be approved/recognised by the Government of India by 15th July of each calendar year, for the relevant academic sessions of that year; the Medical Council of India should, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of the admission process within one week thereafter; after 15th July of each year, neither the Union of India nor the Medical Council of India shall issue any recognition or approval for the current academic year; if any such approval is granted after 15th July of any year, it shall only be operative for the next academic year, and not in the current academic year; these directions should be complied with by all concerned, including the Union of India, Medical Council of India, State Governments, Universities and medical colleges and the management of the respective universities or medical colleges; and any default in compliance with these conditions, or attempt to overreach these directions, would be liable for action under the provisions of the Contempt of Courts Act.

47. It is no doubt true that, in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, , the Supreme Court held that, having returned a finding on merits in favour of the appellant, it had to grant relief even, if necessary, by moulding the relief appropriately and in accordance with law; and it must do complete justice between the parties, particularly where the legitimate right of the appellant stands frustrated because of the inaction or inappropriate action on the part of the respondents concerned. In the guise of granting relief, it is not permissible for this Court to direct MCI to consider the petitioners'' application for renewal of permission for the academic year 2013-14, as the last date for grant of permission expired by 15th July, 2013, and the last date for admission of students expired by 30th September, 2013. Compassion and sympathy have no role to play where the rule of law is required to be enforced. Any direction by the High Court to the MCI to now grant permission would not be a proper exercise of jurisdiction under Article 226 of the Constitution. ( K.S. Bhoir Vs. State of Maharashtra and Others,

48. Even otherwise the Supreme Court, in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, was examining the entitlement of a student for admission into the MBBS course for which the last date was 30th September. Even in such a case of admission of a student it was held that, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission is permissible after 30th September; it is only in the rarest of rare cases or exceptional circumstances where the ends of justice would be subverted, or the process of law frustrated, can the court mould the relief and make exception to the cut-off date of 30th September, and exercise its extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year; this can only be done if the conditions stated in Priya Gupta Vs. State of Chhatishgarh and Others, are found to be unexceptionally satisfied, and the reasons therefore are recorded by the court of competent jurisdiction; even in such cases, the Court must first return a finding that no fault is attributable to the candidate; the fault lay on the part of the authorities; and there is apparent breach of the rules, regulations and principles in the process of selection and grant of admission; where denial of admission violates the right to equality, and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate; and, even if these conditions are satisfied, the court would still have to decide whether the relief should or should not be granted and, if granted, should it be with or without compensation. Unlike in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, wherein the admission of a student to a medical college was in issue, the present case relates to grant of renewal of permission for a medical college, for the academic year 2013-14, the last date for which expired on 15th July, 2013.

VI. WRIT OF MANDAMUS: ITS SCOPE:

49. According to Sri C.V. Mohan Reddy, Learned Senior Counsel, a mandamus can be issued in cases where the authority, vested with the jurisdiction to take action and pass an order, has passed an order in an irrational or illegal manner or in cases where the authority, vested with the jurisdiction to take action, has not taken any action at all; in the latter cases the High Court may direct the authority to take action and no more; however, in the former cases where the action is found to be illegal, the High Court has the power to direct the authority to act in a particular manner; and, in this case, this Court has the power, under Article 226 of the Constitution of India, to direct MCI to grant renewal of permission, for the academic year 2013-14, as the authority has already taken a decision. On the other hand Sri C. Gunaranjan, Learned Standing Counsel for the M.C.I., would submit that there is no illegality or irregularity in the impugned order rejecting renewal of permission to the 2nd petitioner institution for the academic year 2013-14; and the Writ Petition should, therefore, be dismissed in the interest of the justice.

50. While the impugned order of the 2nd respondent dated 10.09.2013, rejecting the petitioners'' application for renewal of permission, is illegal, arbitrary and discriminatory and necessitates being set aside, this Court may not be justified in directing them to grant renewal of permission to the petitioners college as these are matters of discretion which the MCI is required to exercise in accordance with law. It is no doubt true that a writ of mandamus is equitable in nature, its issuance is governed by equitable principles and the prime consideration, for issuance of the writ, is whether or not substantial justice will be promoted. ( The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Others, The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, ; Punjab Financial Corporation and Another Vs. Garg Steel and Another, ; Union of India (UOI) and Another Vs. Arulmozhi Iniarasu and Others, and Khela Banerjee and Another Vs. City Montessori School and Others, It is, however, not for the Court to dictate what decision should be taken by the statutory authority, in the exercise of its discretion, in a given case. The Court cannot direct the statutory authority to exercise its discretion in a particular manner or in favour of a particular person. That would be beyond the jurisdiction of the Court. ( U.P. State Road Transport Corporation and another Vs. Mohd. Ismail and others, . Adjusting equities, in the exercise of the extraordinary jurisdiction under Article 226, is one thing and the High Court assuming the role of the MCI u/s 10A of the Act is a different thing altogether. The Court cannot direct waiver of the mandatory requirement of law in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. K.S. Bhoir Vs. State of Maharashtra and Others, . As the power to grant renewal of permission is conferred on the MCI, both under the Act and the Regulations, any direction issued by the High Court, to the MCI to accord permission, would be in the teeth of the statutory provisions and would amount to amending the provisions of Section 10A of the Act and the Regulations. It is not permissible for the High Court to direct an authority under the Act to act contrary to statutory provisions. The power conferred on the High Court, under Article 226, is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law, K.S. Bhoir Vs. State of Maharashtra and Others, , and not to don the robes of the MCI to grant the petitioners renewal of permission for the academic year 2013-14.

VII. Other Contentions:

51. Sri C. Gunarajan, learned Standing Counsel for the MCI, would submit that the gross deficiencies, found in the teaching faculty of the petitioner institution during the surprise physical inspection, raises a serious doubt on the genuineness of the faculty and the residents allegedly employed by them; it also raises a serious doubt that teachers and residents were being employed temporarily for inspection purposes only; the hospital of the 2nd petitioner-college cannot be shut down during vacation; and to manage such huge patient load there is a requirement of sufficient number of doctors, residents, nurses and other paramedical staff. It is wholly unnecessary for this Court to deal with these submissions, as none of these factors formed the basis of the impugned order dated 10.09.2013 whereby the petitioners'' request for renewal of permission was rejected.

52. The jurisdiction, to refuse renewal of permission, can be exercised by the 2nd respondent only if the applicant medical college has failed to comply with the infrastructural and instructional requirements of the Regulations. The Regulations contemplate an opportunity being afforded to the college to rectify the deficiencies. It is only if they are informed thereof, can the colleges take steps to rectify such deficiencies. The 2nd respondent cannot, therefore, exercise its powers to refuse renewal of permission for deficiencies (other than those mentioned in the provisos) which the college has neither been intimated earlier nor have they been provided an opportunity to rectify them. It is unnecessary for this Court to dwell any further on this aspect as the impugned order dated 10.09.2013 is being set aside on the issue of "bed occupancy", and the other two deficiencies referred to therein are rectifiable in terms of Regulation 8(3)(1) (which the petitioners claim to have either rectified or offer a justification therefore). The 2nd respondent shall examine whether the petitioners have been put on notice earlier of the other two deficiencies and, if so, whether they have rectified them.

VIII. Nature of Relief to be Granted:

53. On the nature of relief, which the petitioners can be granted, it is useful to refer to MCI v. Chintapurni Medical College and Hospital Judgment in LPA No. 1228 of 2012 (O and M) dated 10.09.2012, wherein a Division Bench of the Punjab and Haryana High Court held that the schedule for receipt of applications, for establishing a new medical college and processing of applications as set out in paragraph 22 of the judgment in Priya Gupta Vs. State of Chhatishgarh and Others, left no manner of doubt that renewal of permission should not be granted to a medical college, if the schedule for opening a medical college was not adhered to; admissions shall not be made without prior approval of the Board of Governors; in view of these restrictions, while it may not be open to the Court to issue any direction for the current academic session, it could direct that a fresh decision be taken by the MCI, after inspection by its team of assessors, for the next academic session in the event of success of the inspection, with further right to further assessment in case it is otherwise. A similar direction can be issued in the present case also.

55. The 2nd respondent shall consider the petitioners'' application for renewal of permission afresh, in the light of the observations made hereinabove and in terms of the Act and the Regulations, for the next academic year 2014-15 and pass orders thereupon at the earliest, in any event not later than one month from the date of receipt of a copy of this order. It is made clear that this order shall not preclude the petitioners from instituting appropriate legal proceedings seeking damages for the loss sustained by them because of the high handed and illegal acts of the MCI in its selective application of the "bed occupancy" requirement under the Regulations, and for refusing them renewal of permission for the academic year 2013-14. The writ petition is allowed with exemplary costs of Rs. 10,000/- which the 2nd respondent shall pay to the petitioners within one month from the date of receipt of a copy of this order. Miscellaneous petitions, if any pending, are also disposed of.

^Table This judgments has been sourced from the court website. The tables in the judgment may not be aligned.