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Judgment
Elipe Dharma Rao, A.C.J.
The appellant was given permission for starting P.G. Medical courses by the Central Government, on the recommendations of the Medical
Council of India during the year 2009. The appellant Institution was granted Essentiality Certificate for an annual intake of 100 students in MBBS
course from the academic year 2003-2004 and the respondent granted permission u/s 10A of the Indian Medical Council Act, 1956, in
September, 2003 and the appellant Medical college was brought under the ambit of the Bharath University. In the year 2007, the appellant applied
to the Government of Tamil Nadu for the grant of Essentiality Certificate for increasing the intake capacity in the first year MBBS course from 100
to 150 and the Government of Tamil Nadu, after inspection, granted Essentiality Certificate for the said increase of intake by letter dated
30.8.2007, after considering the viability of the appellant college, the financial back ground of the sponsoring Trust of the college to accommodate
150 students every year and the Central Government also granted renewal of permission year after year for admission of 100 students from 2003-
2004. In terms of the said Essentiality Certificate issued for the increase of intake, the appellant submitted a proposal before the respondent, for
the year 2009-2010. Consequently, the officials of the respondent inspected the college and pointed out certain discrepancies and according to the
appellant, the proposal was not pursued for the year 2009-2010 due to some administrative reasons and on 26.8.2010, the appellant again
submitted an application to the respondent for increasing the intake from 100 to 150 in the first year MBBS course for the academic year 2011-
2012, along with Essentiality Certificate issued by the State Government and consent of affiliation issued by the Deemed University. An inspection
team of the respondent, inspected the appellant college on 5th and 6th April, 2011 and on 5.5.2011, the respondent had pointed out certain
deficiencies and required the appellant to submit its compliance report within a period of two weeks along with a demand draft for Rs. 3 lakhs for
verification of compliance.
After many correspondences exchanged between the parties, on 23.5.2012, the respondent sent a letter to the appellant in the following terms:
The Board of Governors considered the matter with regard to increase of MBBS seats from 100 to 150 seats at Sree Balaji Medical College and
Hospital, Chennai u/s 10A of the IMC Act, 1956 and noted that the college having essentiality certificate issued in 2007, was assessed on 5th and
6th April, 2011 and deficiencies pointed out in the said assessment have been communicated to the college authorities the last date for submission
of compliance u/s 10A was 4th June 2011 but the college submitted the compliance by 15th June, 2011. Hence, the application could not be
considered and the college was advised to apply afresh next year. The Board considered the matter in light of the assessment done earlier and the
application submitted by the college for increase of seats from 100 to 150 and decided for revalidation of Essentiality Certificate issued 3 years
back by Competent State Signatory authority for further processing of the application u/s 10-A of the IMC Act, 1956.
Thereafter, on 28.5.2012, the appellant submitted a response to the respondent. But, the respondent, by the letter dated 29.6.2012,
disapproved the proposal of the appellant for the increase of MBBS seats from 100 to 150. This decision of the respondent has been challenged
by the appellant by initiating the present writ proceedings. Since the learned single Judge dismissed the writ petition, this writ appeal has been
preferred by the appellant/petitioner.
Mr. Vijaynarayanan, the learned senior counsel appearing for the appellant would stiffly argue that neither the Indian Medical Council Act nor
the Regulations framed thereunder specify any time limit for the Essentiality Certificate issued by the State Government and therefore, the decision
of the respondent, requiring the appellant to obtain the Essentiality Certificate from the State Government afresh, is illegal. According to the learned
senior counsel, the decision of the learned single Judge in ousting the claim of the appellant, relying on the judgments of the Honourable Apex
Court delivered in the context of service law, is not sustainable and need to be set aside.
On the other hand, Mr. R. Thiagarajan, learned senior counsel appearing for the respondent would argue that by the Amendment Act 32 of
2010, the Board of Governors were empowered to exercise their powers and perform the functions of the Medical Council of India with effect
from 15.5.2010 and accordingly, the Board of Governors, in the meeting held on 12.12.2011 took a decision to demand revalidation of
essentiality certificate, after three years from the date of issue of essentiality certificate. He would justify the action of the respondent, in insisting
fresh essentiality certificate, on the ground that since neither the Indian Medical Council Act nor the Regulations prescribed any time limit, the gap
and the ambiguity created with regard to the aspect of validity period of the essentiality certificate, was rightly filled by the decision of the Board of
Governors and the learned single Judge has analysed all the facts and circumstances of the case in their proper perspective and has arrived at the
right decision of dismissing the claim of the appellant/petitioner. Therefore, he would pray to dismiss the writ appeal.
There is no denying of the fact that neither in the Indian Medical Council Act nor in the Establishment of Medical College Regulations, any time
limit has been prescribed with regard to the validity of the Essentiality Certificate issued by the State Government. While admitting this position, an
argument has been made on the part of the respondent that since there is a gap in this aspect both in the Act and in the Regulations, the Board of
Governors, have taken a decision to fill up this gap and required the appellant to submit fresh essentiality certificate.
For better understanding, we shall extract hereunder Section 10A of the Indian Medical Council Act, 1956:
PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.
10.A (1) Notwithstanding anything contained in this Act or any other law for the time being in force:-
(a) no person shall establish a medical college or
(b) no medical college shall:-
(i) open a new or higher course of study or training (including a postgraduate 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 (including a postgraduate course of study or training), except with the previous
permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1-. For the purposes of this section, ""person"" includes any University or a trust but does not include the Central Government.
Explanation 2.- For the purposes of this section ""admission capacity"" in relation to any course of study or training (including postgraduate course of
study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being
admitted to such course or training.
(2) (a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a
scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.
(b) The Scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied
with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under sub-section (2) the Council may obtain such other particulars as may be considered necessary by
it from the person or the medical college concerned, and thereafter, it may-
(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for
making a written representation and it shall be open to such person or 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.
(4) The Central Govt. may after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where
necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors
referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme, and any such
approval shall be a permission under sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable
opportunity of being heard;
Provided further that nothing in this sub section shall prevent any person or medical college whose scheme has not been approved by the Central
Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the
first time under subsection (1).
(5) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub-section (1), no order
passed by the Central Government has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have
been approved by the Central Government in the form in which it had been submitted, and accordingly, the permission of the Central Government
required under sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing
any particulars called for by the Council, or by the Central Government, shall be excluded.
(7) The Council, 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), shall have due regard to the following factors, namely:-
(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a
position to offer the minimum standards of medical education as prescribed by the Council u/s 19A or, as the case may be u/s 20 in the case of
postgraduate medical education.
(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or
training or to increase it admission capacity has adequate financial resources;
(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 or study or training or accommodating the increased admission capacity, have been provided or
would be provided within the time-limit specified in the scheme.
(d) whether adequate hospital facilities, having regard to the number or 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;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or
course of study or training by persons having the recognised medical qualifications;
(f) the requirement of manpower in the field of practice of medicine; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be
communicated to the person or college concerned.
This Section provides for grant of permission for establishment of new medical college, new course of study and increase in intake. Under sub
section (2), every person or medical college shall, for the purpose of obtaining permission. submit a Scheme in accordance with the provisions
made thereunder and under sub-section (3), it has been provided that Medical Council of India shall obtain necessary particulars from the College
and make recommendations to the Central Government after satisfying of having met the factors referred to in sub-section (2).
u/s 33, the Council was authorised to frame Regulations with regard to various aspects generally to carry out the purposes of the Act, and u/s
33(fa), it has been stated that such Regulations may provide ''the form of the scheme, the particulars to be given in such scheme, the manner in
which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of section 10A''. Accordingly, in
exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India,
with the previous sanction of the Central Government, framed the Establishment of Medical College Regulations, 1999.
By Act 32 of 2010, Section 3B has been inserted into the Indian Medical Council Act, the ''Council'' has been superseded by a Board of
Governors and the Board of Governors was conferred with the powers, among others, to grant independently permission for establishment of new
colleges, increase of intake, etc. This amended Section 3-B reads as follows:
During the period when the Council stands superseded,-
(a) the provisions of this Act shall be construed as if for the word ""Council"", the words ""Board of Governors"" were substituted;
(b) the Board of Governors shall-
(i) exercise the powers and discharge the functions of the Council under this Act and for this purpose, the provisions of this Act shall have effect
subject to the modification that references therein to the Council shall be construed as references to the Board of Governors,
(ii) grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in
admission capacity in any course of study or training referred to in Section 10A or giving the person or college concerned a reasonable opportunity
of being heard as provided u/s 10A without prior permission of the Central Government under that section, including exercise of the power to
finally approve or disapprove the same; and
(iii) dispose of the matters pending with the Central Government u/s 10A upon receipt of the same from it.
A comprehensive reading of both the above provisions, would make it clear that no power has been vested with the Board of Governors to
make the applicant to get fresh Essentiality Certificate from the State Government since no expiry date of such Essentiality Certificate once issued
by the State Government has been contemplated anywhere in the Act and in the Regulations. While that being the case that the Legislature, in its
wisdom, has not imposed any such burden on the applicant, the decision of the Board of Governors as if the Essentiality Certificate issued by the
State Government will expire in three years, is, definitely, out of its power and competence.
Under Act 32 of 2010, Section 3B has been inserted into the Indian Medical Council Act and the ''Council'' has been superseded by a Board
of Governors and the Board of Governors was conferred with the powers, among others, to grant independently permission for establishment of
new colleges, increase of intake, etc. The legislative power of the Parliament has not been delegated to the Board of Governors so as to frame
their own rules, like the one in hand, insisting the applicant to obtain fresh essentiality certificate from the State Government. In fact, the legislature
cannot delegate its essential functions, which have been entrusted to it by the Constitution, vide Vasantlal Maganbhai Sanjanwala Vs. The State of
Bombay and Others, and where the Legislature lays down the policy and does not more than enable duly authorised officer to meet contingencies
and deal with various situations as they arise, there is no ''delegation of legislative authority'', vide Mohammad Hussain Gulam Mohammad and
Another Vs. The State of Bombay and Another, . Therefore, it is but imperative that the Board of Governors should strictly adhere to the scheme
of things propounded under the Indian Medical Council Act and the Regulations framed thereunder since under the Amendment, the power
delegated to the Board of Governors is only to the extent of acting within the bounds of the Act. Moreover, when no amendment has been brought
into existence by the Parliament, giving life of only three years to the essentiality certificate issued by the State Government, the Board of
Governors of the respondent cannot take a decision on their own in the meeting, insisting to submit a fresh essentiality certificate by the
applicant/appellant since it is bereft of the power and authority of the Board of Governors.
However, if the respondent wants to fix a time limit to the essentiality certificate issued by the State Government, it should have recommended
to the Government to amend the law accordingly, specifying the period of life of essentiality certificate issued by a State Government to a
person/College to establish or increase the intake of the students in the medical college. In the absence of such an action, the respondent, on its
own cannot insist the applicant, in the case on hand the appellant, to get a fresh essentiality certificate from the State Government as if its life is
limited only to three years.
Though the Board of Governors, by the amendment act, has been given power to perform the duties and functions of the Council, having been
superseded by the Council, they are not vested with any power to introduce new clauses to the Act. In D.K. Trivedi and Sons and Others Vs.
State of Gujarat and Others, , the Honourable Apex Court held that ''the rule making authority cannot change the policy of the Act.'' This judgment
squarely applies to the case on hand, as the Board of Governors of the respondent, has assumed onto itself a power, which has neither been
delegated to it nor provided for under the Act and the Regulations and thus, the impugned action of the Board of Governors is nothing but an act to
change the policy of the Act, since no such time limit for the Essentiality Certificate issued by the State Government has been prescribed either
under the Indian Medical Council Act or under the Regulations framed thereunder. On a thorough and careful perusal of the judgment of the
learned single Judge, we are in full agreement with the arguments advanced on the part of the learned senior counsel appearing for the appellant,
that the learned single Judge has committed a legal error in placing reliance on the judgments of the upper forums of law, which are rendered under
service law.
Therefore, this writ appeal stands allowed. The respondent is directed to consider the application of the appellant for increase of strength from 100
to 150, without requiring him to produce the fresh Essentiality Certificate from the State Government and pass orders on merits and in accordance
with law within eight weeks from the date of receipt of a copy of this judgment. No costs. Consequently, M.P. Nos. 1 & amp; 2 of 2012 are
closed.