Supreme Court of India
P.C. KESAVAN KUTTYNAYAR ETC. ETCversusHARSH BHALLA AND ORS.
- Citation
- 2003 INSC 508
- Decided
- 23 September 2003
- Bench
- M B SHAH
Holding
The Central Government cannot grant permission to increase or renew student intake in medical colleges unless the colleges comply with the requirements of Sections 10‑A and 10‑B of the Indian Medical Council Act, 1956 and the MCI regulations.
Summary
The Supreme Court examined whether the Central Government could grant permission to increase student intake or renew admission permissions for medical colleges without the colleges complying with the requirements of Sections 10‑A and 10‑B of the Indian Medical Council Act, 1956 and the regulations framed by the Medical Council of India (MCI). The petitioners alleged that the Government had issued such permissions in violation of the Act, while the respondents contended that the statutory procedure had been followed. Relying on earlier decisions emphasizing strict adherence to statutory provisions governing medical education, the Court held that the Government could not bypass the MCI’s regulatory framework. It directed the MCI to inspect all colleges that had received such permissions and report within four weeks, and ordered the Central Government to refrain from granting any further permission until the prescribed procedure under Sections 10‑A(i), (ii), (iii) and (vii) is complied with. The order also stayed a departmental inquiry against a member of the ad‑hoc committee and suggested amendments to the MCI’s Code of Ethics.
Issues considered
- Whether the Central Government has the power to grant permission for increase in student strength or renewal of admission permission for medical colleges in contravention of Sections 10‑A and 10‑B of the Indian Medical Council Act, 1956 and MCI regulations.
- Whether such permission, if granted without compliance, is ultra vires and liable to be set aside.
- What procedural safeguards must the Central Government observe before granting such permission.
Legislation cited
- Indian Medical Council Act, 1956s. 10-A, s. 10-B, s. 1OB
Subjects
Indian Medical Council ActSection 10-ASection 10-BMedical college admissionsCentral Government permissionStatutory complianceMedical Council of IndiaInspection of collegesCode of Ethics
Judgment
P.C. KESAVAN KUTTYNA YAR ETC. ETC .. A
v.
HA~ BHALLA AND ORS.
SEPTEMBER 23, 2003
[M.B. SHAH AND ASHOK BHAN, JJ.] B
Indian Medical Council Act, 1956:
Ss. 10-A and 10-B-Medical Colleges-Admissions to-Central
Government granting permission to increase strength ofstudents or renewal
ofpermission to certain Medical Colleges-I.As. filed in pending appeals C
before Supreme Court seeking reliefon the ground that Central Government
granted permission in violation of provisions of the Act and Regulations
framed by Medical Council of India-Ad-hoc Committee appointed by
Supreme Court to work in cooperation with Executive Committee of the
Council-Held, prima facie, it cannot be said that Central Government has
power to issue such permission when the College is not complying with the D
requirements of the regulations framed by the Medical Council of India or
the requirements of the Act-As regards the permission already granted,
since the respective Colleges might have given admission on the basis ofthe
so called increase in the strength/renewal ofpermission, the Medical Council
of India would carry out further inspection to find out whether there is E
compliance of the requirement of the Act and the Rules in all the Colleges
where increase ofstrength/renewal ofpermission for a college is permitted
by Central Government by its various orders issued in August, 2003-
Meanwhile, the Central Government is directed not to grant any further
permission without following the procedure prescribed under ss. IOA(i),
~~~~. F
A.P. Christians Medical Educational Society v. Government of A.P.,
(1986) 2 SCC 667; State of Punjab v. Renuka Sing/a, (1994) 1SCC175;
Medical Council ofIndia v. State ofKarnataka, (1998] 6 SCC 13 land K.S.
Bhoir v. State of Maharashtra & Ors., [2001) IO SCC 264, referred to.
G
Medical Council of India:
Code of Ethics-Directions given to Medical Council ofIndia to take
appropriate steps for inclusion in the Code of Ethics ofsimilar provisions,
as indicated in the order, for deciding complaint against a delinquent
physician and provision for appeal against decision ofState Medical Council. H
1063
1064 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A CIVIL APPELLATE JURISDICTION : I.A. Nos. 5-6 and 7-14.
IN
Civil Appeal Nos. 599-600 of 2002.
B From the Judgment and Order dated 23.11.2001 of the Delhi High
Court in L.P.A. Nos. 299 and 301 of 200 I.
WITH
W.P. (C) No. 317 of 2000.
c Soli J. Sorabjee, Attorney General, Raju Ramachandran, Additional
Solicitor General, Harish N. Salve (A.C.). K.K. Venugopal, M.N.
Krishnamani, Madan Bhatia, Rakesh Dwivedi, Manish, Singhvi, Prateek
Jalan, Amit Mahajan, D.S. Mahra, A. Mariarputham, Ms. Aruna Mathur,
D Maninder Singh, Ms. Pratibha, M. Singh, Angad Mirdha, Ankur Talwar,
Annam, D.N. Rao, Avik Dutta, Santanu Ghosh, V.K. Monga, Nageshwar
Pandey, Anup Sinha, Pramod Dayal, Raju Subramaniam, Ms. Jayamala
Godbole, Sanand Ramakrishnan, Ms. Sweety Manchanda, P.IJ. Parekh,
Ms. Indu Malhotra, Ms. J.S. Wad, G.S. Chatterjee, Raja Chatterjee, I.
Nageswara Rao, Rajeev Sharma, Pawan, Ms. Sunita Sharma, Ms. Rekha
E Pandey, Ms. Krishna Sarma, V.K. Siddharthan, Anil Srivastava, Jyoti Dutt,
Ms. Sunita, R. Singh, B.B. Singh, Ms. Kamini Jaiswal, Ms. Shomila .
Bakshi, Ms. Geetanjali Mohan, Prakash Shrivastava, Ms. A. Subhashini,
Ms. Monika Bapna, J.S. Attri, Anis Suhrawardy, B.S. Banthia, W.A.
Nomani, Ravindra, K. Adsure for Mukesh K. Giri, K.H. Nobin Singh, M.
F Gireesh Kumar, Ranjan Mukherjee, Ms. Sumita Hazarika, U. Hazarika,
Kamal Shankar, Ms. Sunita Sharma, D.N. Ray, J.R. Das, Ms. Swetaketa
Mishra, Gourang Biswal, Ms. Moushumi Gahlot, Ms. Naresh Bakshi, R.S.
Suri, V.G. Pragasam, Anurag, D. Mathur, P.N. Ramalingam, V. Balaji,
Gopal Singh, Sandeep Singh, Ashok K. Srivastava, Ms. Rachna Srivastava,
G Rohit Singh, Tara Chandra Sharma, Ms. Neelam Sharma, Fiaz Maqbool,
Dinesh Kumar Garg, Yakesh Anand, Sanjeev Anand, S. Srinivasan, M.B.
Rama Subba Raju, Ms. S. Sunita, V. Sudeer, Ms. Ruby Singh Ahuja, Badri
Prasad Singh, Udai Umesh Lalit, Sushi! Kumar Jain, D.N. Ray, Ms. Sumita
Ray, S.N. Bhat, Vipul Maheshwari, P.K. Chakravarti, D. Stephen K.
H Yanthan and Ms. Hemantika Wahi for the appearing parties.
P.C. KUTTYNAYAR v. HARISH BHALLA 1065
The folllowing Order of the Court was delivered : A
Heard the learned Amicus Curiae and the counsel for the parties .
...
In pending Appeals learned Amicus Curiae is required to approach
this Court for appropriate directions including the manner of working of B
the Ad-hoc Committee in the matter of recognition, renewal including grant
of permission in respect of medical colleges.
Reasons for seeking this relief is, as contended by the senior counsel
Mr. Salve and Mr. Venugopalan, tthat for some reason Central Government
granted permission to increase the strength of students in medical colleges C
in violation of Section 1OA of the Indian Medical Council Act, 1956
(hereinafter referred to as the "Act") and the Regulations framed by
Medical Council of India.
This Ad-hoc Committee was appointed by this Court's order dated D
20th November, 2002. Relevant part of this order is as under :
"... For enhancing the confidence of the people in the
forthcoming of the Medical Council of India, which is having
wide powers under the Medical Council Act, 1956, we order E
accordingly. We appoint a Committee of four eminent doctors
namely, Dr. N. Rangabashyam ofChennai, Prof. P.N. Tandon of
..... New Delhi, Dr. S.K. Bhansali of Mumbai and Dr. (Ms.) S. Kantha
of Bangalore, as members of Ad-hoc Committee to assist and
nominate the work of the Medical Council of India, The Ad-hoc F
Committee would work harmoniously and in full cooperation with
the Executive Committee of the Council. The Committee would
associate itself particularly in selection and appointment of
Inspectors and scrutinize their reports and making recommendations
for grant of recognition to medical college.
G
If any member of the Ad-hoc Committee in course of
working finds any practical or legal difficulty, it would be open
for him/them to approach this Court for appropriate orders
th!ough learned senior counsel Mr. Harish N. Salve (Amicus
Curiae). It would also be open to them to make recommendations H
1066 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A how the functioning of the Executive Committtee can be made
more effectively and prompt. ..... "
Thereafter, the Ad-hoc Committee started its work in harmony with
the Executive Committee of Medical Council of India overseeing, inter
..
B a/ia, the process of inspection of colleges and dealing with the
recommendation to be made for the recognition/grant of permission to such
colleges.
The contention which is raised in the present I.As. is with regard to
the exercise of power by the Central Government by by-passing the M.C.I.
C as well as the provisions of Section I QA of the Act.
This Court has repeatedly considered the provisions of the Act and
held that statutory provisions and rules prescribed for Medical education
should be strictly adhered to. As early as in the case of A.P. Christians
D Medical Educational Society v. Government of A.P.. [1986] 2 sec 667
(p. 678 paralO), the Court observed thus :
"Any direction of the nature sought by Shri Venugopal
would be in clear transgression of the provisions of the University ...-
Act and the Regulations of the University. We cannot by our fiat
E direct the University to disobey the statute to which it owes its
existence and the regulations made by the University itself. We
cannot imagine anything more destructive of the rule of law than
a direction by the Court to disobey the law."
F Thereafter, in 1994 again, this Court considered this aspect in State
of Punjab v. Renuka Sing/a, [1994] 1 SCC 175 (p. 178 para 8) and held
thus :
"The High Courts or the Supreme Court cannot be generous
or liberal in issuing such directions which in substance amount to
G directing the authorities concerned to violate their own statutory
rules and regulations, in respect of admissions of students.
Technical education, including medical education, requires
infrastructure to cope with the requirement of giving proper
education to the students, who are admitted. Taking into
H consideration the infrastructure equipment, staff, the limit of the
P.C. KUTIYNA YAR v. HARISH BHALLA 1067
number of admissions is fixed either by the Medical Council of A
India or Dental Council of India. The High Court cannot disturb
... that balance between the capacity of the .institution and number
of admissions, on 'compassionate ground'. The High Courts
should be conscious of the fact that in this process they are
affecting the education of the students who have already been B
admitted, against the fixed seats, after a very tough competitive
examination. There does not appear to be any justification on the
part of the High Court, in the present case, to direct admission of
respondent no. 1 on 'compassionate ground' and to issue a fiat
to create an additional seat which amounts to a direction to violate
Section 10-A and Section 10-8(3) of the Dentists Act." C
The reason for taking this much caution is well reflected in the
decision rendered by this Court in Medical Council of India v. State of
Karnataka, [ 1998] 6 SCC 131 (p.157 para 29) wherein the Court held as
~: D
"29. A medical student requires gruelling study and that can be
done only if proper facilities are available in a medical college
and the hospital attached to it has to be well equipped and the
teaching faculty and doctors have to be competent enough that E
when a medical student comes out, he is perfect in the science of
treatment of human beings and is not found wanting in any way.
The country does not want half-baked medical professionals
coming out of medical colleges when they did not have full
facilities of teaching and were not exposed to the patients and their F
ailments during the course of their study."
This case was referred to with approval in case of K.S. Bhoir v. State
of Maharashtra & Others, [2001] 10 SCC 264. The Court also held that
the compliance with the requirements under the Act and the regulations
being mandatory in absence of their compliance, no permission could be G
granted by the Central Government for the increase in admission capacity
in any course in any Medical College. The Court further held that for one
time increase in admission capacity the colleges should have submitted the
scheme prepared in accordance with the Act and the Regulations to the
Central Government. H
1068 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Despite the aforesaid law, it is contended by the learned senior
counsel Mr. Venugopal for the Medical Council as well as by the learned
Amicus Curiae Mr. Salve that the Central Government by-passed the
Medical Council and the .\ct and had issued various orders granting
permissions to increase the strength of the students in some colleges or
..
B renewal of permission to the medical Colleges. As against this; Mr. Rakesh
Dwivedi, learned senior counsel for the Uniion of India submitted that the
Central Government has neither by-passed the Medical Council nor the
statutory requirements for grant for permission to increase the strength of
the students in existing medical colleges/renewal of permission for the
C college.
No doubt for decisding the question-whether the permission granted
by the Central Government is without complying with the statutory
requirement and thus violative of Sections JOA and JOB of the Act requires
consideration.
D
However, prima facie, there appears to be substance in what is
contended by the learned senior counsel for the Medical Council as well
as Amicus Curiae that on 23nd January, 2003, the Medical Council of India
had brought the following to the notice of the Central Government : t
E "Sir,
I am directed to inform you that inspection for renewal of
permission for admission of 3rd batch of students for the academic
session 2002-2003 at Government Medical College, Anantapur
F was carried out by the Council Inspectors on 30th & 3 ist July,
2002 and the inspection report was considered by the· Executive
Committee at its meeting held on 5.8.2002. On going through the
inspection report the Committee observed that 34 of the faculty
members i.e. 6 - Professions, 16 - Readers and 12 - Assistant
Professions joined the institution on 27.7.2002 i.e. 3 days before
G the inspection after transfer from other Government Medical
Colleges of the State.
In view of the above and other deficiencies pointed out in
the inspection report, the Committee decided to defer the
H consideration of the matter for obtaining the information from the
P.C. KUTTYNA YAR v. HARISH BHALLA 1069
Director, Medical Education, Government of Andhra Pradesh and A
college authorities as to how the resultant vacancies created with
the transfer of teachers from the Government Medical colleges to
this college have been filled up.
On receipt of above clarification and the compliance on B
rectification of the deficiencies from the Director, Govt. of
Andhra Pradesh the matter was again placed before the Executive
Committee at its meeting held on 31.10.2002 where it was decided
to verify the same by way of an inspection. Inspection to verify
the compliance was carried out by the Council Inspectors on 2nd
& 3rd Jan., 2003 and the compliance verification inspection report C
was considered by the Executive Committee at its meeting held
on 9.1.2003 where the members of the ad hoc Committee as per
the Hon'ble Supreme Court order dated 20.11.2002 were also
present. The decision taken by the Executive Committee is
recorded as under for your information and necessary action : D
"The Executive Committee on persual of the compliance
verification report (2nd & 3rd Jan., 2003) of Government Medical
College, Anantapur, noted that the college has already admitted
' students against the academic session 2002-2003 (3rd batch) E
without getting the permission renewed by the Central Government
as under :
(a) 99 students including 14 NRI students against the session
2002-03.
F
(b) 14 NRI students the batch 2000-01 against this session
(Total 113 students)
Thus the college has not only admitted students against the
said session without getting the permission renewed by the G
Central Government but has also increased the seats from 100 to
113 which calls for action u/s 1OB of the l.M.C. Act, 1956.
The Executive Committee therefore, decided to initiate
action u/s JOB of the I.M.C. Act, 1956 against the admissions
made by the college authorities for the academic session 2002- H
1070 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 03 without getting the permission renewed by the Central
Government for which the institution be directed to send a merit
wise list to the Council immediately. The Committee also decided
that the Central Government may be requested to take up the
matter with the Secretary (Medical Education) and Director,
Medical Education Government of Andhra Pradesh to take steps
B
to rectify the violations immediately.
Since, the college had already admitted students for the
academic session 2002-03, the Committee decided not to consider
the inspection report carried out for renewal for permission for
C admission of 3rd batch of students at Government Medical
College. Anantapur."
Despite this, it appears that by order dated 2 lst August, 2003,
the Director, Ministry of Health & Fimily Welfare issued the following
D order:
'The Secretary,
Health, Medical and Family Welfare Department,
Government of Andhra Pradesh,
Hyderabad.
E
Sub: Increase in seats in Government Medical Colleges at Kurnool
& Warangal during the academic year 2003-04 - Renewal
of permission - regarding.
Madam,
F
I am directed to refer to your letter No. 11964/EI/2001-57
dated 4.8.2003 on the subject cited above and to say that it has
been decided as a one time measure to allow admission of fresh
batches of students in the following medical colleges against
G increased intake during the academic year 2003-04 :
I. Kurnool Medical College, Kurnool from 130 to 150
seats.
2. Kakatiya Medical College, Warangal from 100 to 150
H seats.
P.C. KUTTYNA YAR v. HARISH BHALLA 1071
This renewal of permission is subject to the condition of A
implementation of neutralization formula already accepted by the
State Government vide their letter 18.6.200 I (copy enclosed) and
conveyed in this Department's letter of even number dated 12th
July, 2001 (copy enclosed). However, the State Government shall
ensure compliance of all the requirements under the MCI B
Regulations and any deficiencies pointed out by the Medical .
Council of India in respect of above medical colleges. This
permission is further subject to the condition that the Government
of Andhra Pradesh shall sort out the pending issues of admissions
made in these colleges during the year 2002-03 with Medical C
Council of India."
Similar orders are produced on record to indicate that the
recommendations of the Medical Council were not called for.
As against this, it has been pointed out by Mr. Rakesh Dwivedi, D
learned senior counsel that under Section I OA (iv) the Central Government
has such powers.
Primafacie, we do not think that the Central Government has power
to issue such permission when the college is not complying with the
requirements of the regulations framed by the Medical Council of India E
or the requirements of the Act. As the permission is already granted and
probably, it appears that the colleges might have given admissions on the
basis of so called increase in the strength of renewal of permission for a
college, we direct the Medical Council of India to carry out further
inspection to find out whether there is compliance of the requirement of F
the Act and the Rules in all the colleges where increase of strength/renewal
of permission for a college is permitted by the Central Government by its
various orders issued in August, 2003. The Medical Council of India to
carry out the inspection within a period of four weeks.
In the meantime? the Central Government is directed not to grant any
G
further permission without following the procedure prescribed under
Section I OA(i)(ii)(iii) and (vii).
For the time being, the D.G.H.S. inquiry as directed by the Central
Government against Dr. Rangabashyam is stayed. However, it would be H
1072 SUPREME COURT REPORTS (2003) SUPP. 3 S.C.R.
A open to the aggrieved person to take appropriate action before an appropriate
forum, if called for.
Stand over for four weeks.
B WRIT PETITION (C) No. 317 of 2000
Heard the learned counsel for the parties.
As suggested by the learned Attorney General, the following provisions v
could be added in the Code of Ethics prescribed by the Medical Council
C of India :-
"8.7. Where either ron a request or otherwise the Medical Council
of India is informed that any complaint against a delinquent
physician has not been decided by a State Medical Council within
a period of six months from the date of receipt of complaint by
D it and further the MCI has reason to believe that there is no
justifiable reason for not deciding the complaint within the said
prescribed period, the Medical Council of India may -
(i) impress upon the concerned State Medical Council to
E conclude and decide the complaint within a time bound
schedule.
(ii) may decide to withdraw the said complaint pending with the
concerned State Medical Council straightway or after the
F expiry of the period which had been stipulated by the MCI
in accordance with para (i) above to itself and refer the same
to the Ethics Committee of the council for its expeditious
disposal in a period of not more than six months from the
receipt of the complaint in the office of the Medical Council
of India.
G
8.8. Any person aggrieved by the decision of the State Council
on any complaint against a delinquent physician, shall have the
right to file an appeal to the MCI within a period of sixty days
from the date of receipt of the order passed by the said Medical
H Council.
P.C. KUTTYNA YAR v. HARISH BHALLA 1073
Provided that the MCI may, if it is satisfied that the appellant A
was prevented by sufficient cause from presenting the appeal
within the aforesaid period of 60 days allow it to be presented
within a further period of 60 days."
For inclusion of the said or similar provisions. Medical Council would B
take appropriate steps under the Act.
With regard to other issues including the aforesaid issue, adjourned
for four weeks.
R.P. Matters are pending. C
-~
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