Medical
Council of India Vs. State of Karnataka & Ors [1998] INSC 333 (16 July 1998)
K.T.
Thomas, D.P. Wadhwa D.P. Wadhwa, J.
ACT:
HEAD NOTE:
J U D
G E M E N T
Leave
granted.
A
Division Bench of the Karnataka High Court has put a question mark on the authority
of the Medical Council of India ( for short, the ' Medical Council') - the
appellant - in its judgement dated July 16, 1997 to fix intake for admission of
students to various medical colleges in the State of Karnataka. Medical Council
is aggrieved by that part of the impugned judgement where the Division Bench
held that prior to insertion of Sections 10A, 10B, and 10C in the Indian
Medical Council Act, 1956 (for short, the Medical Council Act') by the Amending
Act 31 of 1993 neither the Central Government nor the Medical Council could fix
the admission capacity in the medical colleges in the State and that this
authority to determine the admission capacity in the medical colleges vested in
State by virtue of tow State enactments, namely, Karnataka State Universities
Act, 1976 (for short, 'Karnataka Universities Act') and Karnataka Educational
Institutions (Prohibition of Capitation Fee) Act, 1984 (for short, 'Karnataka
Capitation Fee Act'). The Division Bench, however, held that after the
amendment of the Indian Medical council Act by insertion of Sections 10A, 10B
and 10C, the two State enactments would yield to the extent of repugnancy and
that now the power to fix admission capacity rests with the Medical Council.
The Division Bench said that admission capacity for purpose of increase or
decrease in each of the college, has got to be determined as on or before June
1, 1992 with reference to what had been fixed by the State Government or that
foxed by the medical colleges and not with reference to the minimum standard of
education regulations prescribed under Section 19A, of the Medical Council Act
by the Medical Council which it said were only "recommendatory" as
held in State of Madhya Pradesh and anr. v. Kumari Nivedita Jain and ors.(1981
(4) SCC 296). Thus, according to the Division Bench future admission will,
however, have to be regulated on the basis of the capacity fixed or determined
by the Medical Council as provisions of Sections 10A, 10B and 10C are
prospective.
State
of Karnataka has also filed appeal. It felt
aggrieved by that part of the impugned judgment of the Division Bench where it
scuttled the powers of the State to fix admission capacity to the medical
colleges. Stand of the State is that Section 10A is applicable only when it
comes to increase the existing admission capacity in the colleges and that the
intake capacity already fixed by the State under its statutory powers could not
be reduced.
In the
third appeal filed by the Rajiv Gandhi Dental College and which pertains to Dental Colleges
under the provisions of the Dentists Act, 1948, there is similar challenge to
the authority of the Dental Council of India to fix the intake of admission of
students to Dental Colleges.
The
provisions of this Act are in peri materia to that of the Indian Medical
Council Act and decision in the appeal filed by the Medical Council of India
would be applicable to the appeal filed by Rajiv Gandhi Dental College.
Impugned
Division Bench decision was rendered in an appeal against the judgment dated September 20, 1996 of a single judge (G.C. Bharuka,
J.) of the High Court in a writ petition filed as a Public Interest Litigation.
Learned Single Judge considered the whole spectrum of law relating to admission
in Medical Colleges in the State and held as under:
"I
s.53(10) of the State Universities Act and Sec.4(1)(b) of the State Capitation
Fee Act empowering the universities and/or the State Government to fix or
increase intakes of the medical colleges being repugnant to Sections 10A, 10B
and 10C of the Central Act, are held as void and inoperative.
II.
The power in relation to fixation and/or increase of the admission capacities
of the medical colleges has to be governed strictly and exclusively under the
provisions of Sec.10A/10C of the Central Act.
III.
No medical college can admit any student in excess of its admission capacity
fixed by the Council subject to any increase thereof as approved by the Central
Government under and in accordance with the provisions of Sec.10A or Sec.10C of
the Central Act.
IV. The
regulations framed on the aspects of medical education referred to in Secs.19A
and 33 of the Central Act are mandatory in nature." The State of Karnataka went in appeal against the judgment
of the single Judge which, as noted above, was partly allowed. In the appeal ,
the Divisions Bench took the view that Sections 10A, 10B and 10C of the Act
have only prospective operation. While the Medical Council and the Central
Government contend that learned single Judge was correct in this approach to
the matter in controversy, the State of Karnataka says that introduction of
Sections 10A, 10B and 10C in the Act made no difference to its authority to
regulate admission to Medical Colleges in view of the judgement of this Court
in A.K. Singh vs. State of Bihar [(1994) 4 SCC 401] and that power under
Section 10A of the Medical Council Act was confined only to increasing the
existing admission capacity and the intake capacity already fixed by the State
under its statutory powers could not be reduced.
When
the matter came up before this Court in special leave petition (SLP
No.14839/97) filed by the Medical Council, this Court, while issuing notice,
stayed the impugned judgment of the Division Bench. In the appeal filed by the Rajiv
Gandhi Dental College, it was also directed that the State would confine the
admissions to the dental colleges to the intake capacity as fixed by the Dental
Council.
Before
we consider the rival contentions, we may set out the relevant provisions of
law but even before that we take note of the observations of this Court in
State of Kerala vs. Kumari T.P. Roshana & Anr. [(1979) 1 SCC 572] where the
Court said as under :- "The Indian Medical Council Act, 1956 has
constituted the Medical Council of India as an expert body to control the
minimum standards of medical education and to regulate their observance.
Obviously, this high-powered Council has power to prescribe the minimum
standards of medical education. It has implicit power to supervise the
qualifications or eligibility standards for admission into medical
institutions. Thus there is an overall invigilation by the Medical Council to
prevent sub- standard entrance qualifications for medical courses." The
Indian Medical Council Act, 1956 Sections 2 of the Medical Council Act defines
various terms used in the Act. "Approved institution" means a
hospital, health centre or other such institution recognised by a University as
an institution in which a person may undergo the training, if any, required by
this course of study before the award of any medical qualification to him;
"Council"
means the Medical Council of India constituted under this Act; "medical
institution" means any institution, within or without India, which grants
degrees, diplomas or licences in medicine; "recognised medical qualification"
means any of the medical qualifications included in the Schedules;
"University" means any University in India established by law and
having a medical faculty.
"Sec.
10-A. Permission for establishment of new medical college, new course of study,
etc.- (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 post-graduate 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 post-graduate 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 action, "admission capacity", in relation to any
course of study or training (including post- graduate 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 Government 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 sub-section (2).
(5)
...
(6)
...
(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
under section 19A or, as the case may be, under section 20 in the case of
post-graduate 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 its 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 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;
(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;
(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."
"Sec.10.B
Non-recognition of medical qualifications in certain cases.-
(1)
...
(2)
...
(3)
Where any medical college increases its admission capacity in any course of
study or training except with the previous permission of the Central Government
in accordance with the provisions of section 10A, no medical qualification
granted to any student of such medical college on the basis of the increase in
its admission capacity shall be a recognised medical qualification for the
purposes of this Act.
Explanation.- For the purposes of this section,
the criteria for identifying a student who has been granted a medical
qualification on the basis of such increase in the admission capacity shall be
such as may be prescribed.
Sec.10-C.
Time for seeking permission for certain existing medical colleges, etc.- (1) If
after 1st day of June, 1992 and on and before the commencement of the Indian
Medical Council (Amendment) Act, 1993 any person has established a medical
college or any medical college has opened a new or higher course of study or
training or increase the admission capacity, such person or medical college, as
the case may be, shall seek, within a period of one year from the commencement
of the Indian Medical Council (Amendment) Act, 1993, the permission of the
Central Government in accordance with the provisions of section 10A.
(2) If
any person or medical college, as the case may be, fails to seek the permission
under sub- section (1), the provisions of section 10B shall apply, so far as
may be, as if, permission of the Central Government under s10A has been
refused." Under Section 11 of the Medical Council Act, qualifications
granted by any University or medical institution in India which are included in the First
Schedule shall be recognised medical qualifications for the purposes of this
Medical Council Act. Any University or medical institution in India which
grants a medical qualification not included in the First Schedule may apply to
the Central Government to have such qualification recognised, and the Central
Government, after consulting the Medical Council, may, by notification in the
Official Gazette, amend the First Schedule so as to include such qualification
therein. Under Section 16 every university or medical institution in India which grants a recognised medical
qualification shall furnish such information as the Medical Council may, from
time to time, require as to the courses of study and examinations to be
undergone for the purpose of attaining qualification and other details
requisite for obtaining such qualification. Under Section 17 of the Medical
Council Act, the Executive Committee of the Medical Council shall appoint
medical inspectors to inspect any medical institutions, college, hospital or
other institution where medical education is given or to attend any examination
held by any University or medical institution for the purpose of recommending
to the Central Government recognition of medical institution. Similarly, the
Medical Council is authorised to appoint visitors for the same purpose. The inspectors
and the visitors are required to report on the adequacy of the standards of
medical education including staff, equipment, accommodation, training and other
facilities prescribed for giving medical education or on the sufficiency of
every examination which they attend. Then come Sections 19 and 19A and which
have been set out above providing for laying down minimum standards of medical
education and withdrawal of recognition. These are as under :
"Sec.19.Withdrawal
of recognition.-
(1)
When upon report by the Committee or the visitor, it appears to the Council-
(a) that the course of study and examination to be undergone in, or the
proficiency required from candidates at any examination held by, any University
or medical institution, or (b) that the staff, equipment, accommodation,
training and other facilities for instruction and training provided in such
university or medical institution or in any College or other institution
affiliated to that University, do not conform to the standards prescribed by
the Council the Council shall make a are presentation to that effect to the
Central Government.
(2)
After considering such representation, the Central Government may send it to
the State Government of the State in which the University or medical institution
is situated and the State Government shall forward it along with such remarks
as it may choose to make to the University or medical institution, with an
intimation of the period within which the University or medical institution may
submit its explanation to the State Government.
(3) On
the receipt of the explanation or, where no explanation is submitted within the
period fixed, then on the expiry of that period, the State Government shall
make its recommendations to the Central Government.
(4)
The Central Government after making such further inquiry, if any, as it may
think fit, may, by notification in the Official Gazette, direct that an entry
shall be made in the appropriate Schedule against the said medical
qualification declaring that it shall be a recognised medical qualification
only when granted before a specified date, or that the said medical
qualification if granted to students of a specified college or institution
affiliated to any university shall be a recognised medical qualification only
when granted before a specified date or, as the case may be, that the said
medical qualification shall be a recognised medical qualification in relation
to a specified college or institution affiliated to any University only when
granted after a specified date.
Sec.19.A
Minimum standards of medical education.-(1) The Council may prescribe the
minimum standards of medical education required for granting recognised medical
qualifications (other than post- graduate medical qualifications) by
Universities or medical institutions in India.
(2)
Copies of the draft regulations and of all subsequent amendments thereof shall
be furnished by the Council to all State Governments and the Council shall,
before submitting the regulations or amendment thereof, as the case may be, to
the Central Government for sanction, take into consideration the comments of
any State Government received within three months from the furnishing of copies
aforesaid.
(3)
The Committee shall from time to time report to the Council on the efficacy of
the regulations and may recommend to the Council such amendments thereof as it
may think fit.
Sec.33.
Power to make regulations.
The
Council may, with the previous sanction of the Central Government, make
regulations generally to carry out the purposes of this Act, and, without
prejudice to the generality of this power, such regulations may provided for-
(a) to (f) ...
(fa)
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;
(fb)
any other factors under clause (g) of sub-section (7) of section 10A;
(fc)
the criteria for identifying a student who has been granted a medical
qualification referred to in the Explanation to sub-section (3) of section 10B;
(g) to
(i) ...
(j)
the courses and period of study and of practical training to be undertaken, the
subjects of examination and the standards of proficiency therein to be
obtained, in Universities or medical institutions for grant of recognised
medical qualifications;
(k) the
standards of staff, equipment, accommodation, training and other facilities for
medical education;
(l) the
conduct of professional examinations, qualifications of examiners and the conditions
of admission to such examinations;" The Karnataka Educational Institutions
(Prohibition of Capitation Fee) Act, 1984.
This
was enacted to prohibit the collection of capitation fee for admission to
educational institutions in the State of karnataka. The preamble to the Act
recited that collection of capitation fee for admission of students in
educational institutions was wide spread in the State and this undesirable
practice was not conducive to the maintenance of educational standards beside
it was contributing to large scale of commercialisation of education.
Educational institution has been defined in clauses (c) of Section 3, which
means any institution by whatever name called, whether managed by Government,
private body, local authority, trust, University or any other person carrying
on the activity of imparting education in medicine or engineering leading to a
degree conferred by a University established under the Karnataka State
Universities Act, 1976 (Karnataka Act 28 of 1976) and any other educational
institution, or class or classes of such institution, as the Government may, by
notification specify.
Section
4 regulates the admission to educational institutions etc. and is as under :-
"4. Regulations of admission to educational institutions etc. - Subject to
such rules, or general or special orders, as may be made by the Government in
this behalf and any other law for the time being in force, -
(1) (a)
the minimum qualification for admission to any course of study in an
educational institution shall be such as may be specified by –
(i) the
University, in the case of any course study in an educational institution
maintained by or affiliated to such University:
Provided
that the Government may, in the interest of excellence of education, fix any
higher minimum qualification for any course of study;
(ii) the
Government, in the case of other courses of study in any other educational
institution;
(b)
the maximum number of students that could be admitted to a course of study in
an educational institution shall be such as may be fixed by the Government from
time to time;
(2) in
order to regulate the capitation fee charged or collected during the period
specified under the proviso to section 3, the Government may, from time to
time, by general or special order, specify in respect of each private
educational institution or call or classes of such institution.
(a) the
number of seats set apart as Government seats:
(b) the
number of seats that may be filled up by the management of such institution;
(i) from
among Karnataka students on the basis of merit, on payment of such cash
deposits refundable after such number of years, with or without interest as may
be specified therein, but without the payment of capitation fee; or (ii) at the
discretion:
Provided
that such number of seats as may be specified by the Government but not less
than fifty per cent of the total number of seats referred to in clauses (a) and
(b) shall be filled from among Karnataka students.
Explanation.
- For the purposes of this section Karnataka students means persons who have
studied in such educational institutions in the State of Karnataka run or recognised by the Government
and for such number of years as the Government may specify;
(3) an
educational institution required to fill seats in accordance with item (i) of
sub- clause (b) of clause (2) form a committee to select candidates for such
seats. A nominee each or the Government and the University to which such
educational institution is affiliated shall be included as members in such
committee."
KARNATAKA
STATE UNIVERSITY ACT, 1976
"Section
53.
(1)
Colleges within the University area may, on satisfying the conditions specified
in this section, be affiliated to the University as affiliated Colleges by the
University on the recommendations made by the State Government.
(2) A
college applying for affiliation to the University shall send an application to
the Registrar within the time limit fixed by Ordinances and shall satisfy the
Syndicate and the Academic Council.
(a)
.....
(b)
.....
(c) that
the strength and qualifications of the teaching staff and the conditions
governing their tenure of office are such as to make due provision for the
courses of instruction, teaching or training to be undertaken by the college.
(d)
That the building in which the college is to be located are suitable and that
provision will be made in conformity with the Ordinances for the residence in
the college or in lodgings approved by the college, for students not residing
with their parents or guardians and for the supervision and welfare of
students.
(e)
That due provision has been made or will be made for a library.
(f)
Where affiliation is sought in any branch of experimental science, that
arrangements have been or will be made in conformity with the Statutes,
Ordinances and Regulations for importing instruction in the branch of science
in a properly equipped laboratory or museum;
(g)
......
(h)
That the financial resources of the college are such as to make due provision
for its continued maintenance and efficient working, and (i) ......
10.(a)
No admission of students shall be made by a new college seeking affiliation to
any University or by an existing college seeking affiliation to a new course of
study to such course, unless, as the case may be, affiliation has been granted
to such new college or to the existing college in respect of such course of
study.
(b)
The maximum number of students to be admitted to a course of study shall not
exceed the intake fixed by the University or the Government, as the case may be
and any admission made after this section came into force in excess of the
intake shall be invalid.
(c) No
student whose admission has become invalid under (b) shall be eligible to
appear not shall be presented by the college to appear at any examination
conducted by the University." Section 33 of the Medical Council Act
empowers the Medical Council to frame regulations with the previous sanction of
the Central Government to carry out the purposes of the Medical Council Act. In
exercise of this power Medical Council framed regulations after approval by the
Central Government providing for minimum standard requirements for a medical
college adopting admission on the basis of admitting 100 students annually as
the base. The regulations are in three parts - Part-I deals with accommodation
in the college and its associated teaching hospitals; Part-II deals with staff
(both teaching and technical) and Part-III deals with equipment in the college
departments and in the hospitals. These regulations are quite in detail. Again
under Section 33, the Medical Council framed regulations prescribing
qualifications for appointment of persons to the posts of teachers and visiting
physicians/surgeons, etc. in medical colleges and attached hospitals for
under-graduate and post-graduate teaching.
These
regulations are also framed after approval by the Central Government. The
Medical Council then framed regulations in exercise of power conferred upon it
by Section 10A read with Section 33 of the Medical Council Act and with the
previous approval of the Central Government.
These
regulations relate to the establishment of new medical colleges, opening of
higher posts of studies and increase of admission capacity of the medical
colleges. The regulations came into force w.e.f. September 20, 1993. These
regulations provide that maximum number of admission in MBBS course should not
exceed 150 annually. It is the Central Government which permits the increase in
admission capacity on the recommendation of the Medical Council.
Till
January 3, 1977 education was a State subject under Entry 11 in List II (Entry
11 - "education including universities, subject to the provisions of
entries 63, 64, 65 and 66 of List I and Entry 25 of List III"). By the
42nd Constitutional Amendment Act 1976 Entry 11 was deleted and it was placed
in the Concurrent List by enlarging the existing Entry 25. Relevant entries 63
to 66 of List I (Union List) and entries 25 and 26 of List III (Concurrent
List) in the Seventh are as under :- List I (Union List) "63. The
institutions known at the commencement of this Constitution as the Benares
Hindu University, the Aligarh Muslim University and the [Delhi University; the
University established in pursuance of article 371E] any other institution
declared by Parliament by law to be an institution of national importance.
64.
Institutions for scientific or technical education financed by the Government
of India wholly or in part and declared by Parliament by law to be institutions
of national importance.
65.
Union agencies and institutions for –
(a) professional,
vocational or technical training, including the training of police officers; or
(b) the
promotion of special studies or research; or
(c) scientific
or technical assistance in the investigation or detection of crime.
66.
Co-ordination and determination of standards in institutions for higher
education or research and scientific and technical institutions." List III
(Concurrent List)
"25.
Education, including technical education, medical education and universities, subject
to the provisions of entries 63, 64, 65 and 66 of List I; vocational and
technical training or labour.
26.
Legal, medical and other professions."
Scope
of Entry 66 of list I was construed by 6 Judge Bench judgment of this Court in
The Gujarat University, Ahmedabad vs. Krishna Ranganath Madholkar and others
(1963 Supp. (1) SCR 112). The question for determination before the Court was
(1) whether the Gujarat University had the power under the Gujarat University
Act to prescribe Gujarati or Hindi or both as exclusive medium or media of
instructions and examination and (2) whether legislation authorising the
University to impose such media was constitutionally valid in view of Entry 66
of List I of the Seventh Schedule to the Constitution. The controversy raised
in that case would, however, not survive after the 42nd Amendment when Entry 11
of List II has been deleted. Reading Entry 11 List II as it existed the Court
said that power of the State to legislate in respect of education including
Universities must to the extent to which it is entrusted to the Union
Parliament, whether such power is exercised or not, is deemed to be restricted.
If a subject of legislation is covered by entries 63 to 66 even if it otherwise
falls within the larger field of "education including Universities"
power to legislate on that subject must lie with the Parliament. Entry 11 of
List II and Entry 66 of List I must be harmoniously construed. The two entries
undoubtedly overlap: but to the extent of overlapping, the power conferred by
Entry 66 of List I must prevail over the power of the State under Entry 11 of
List II. It is manifest that excluded heads deal primarily with education in
institutions of national or special importance and institutions of higher
education including research, science, technology and vocational training of labour.
The Court held as under :- "The State has the power to prescribe the
syllabi and courses of study in the institutions named in Entry 66 (but not
falling within entries 63 to 65) and as an incident thereof it has the power to
indicate the medium in which instruction should be imparted. But the Union
Parliament has an overriding legislative power to ensure that the syllabi and
courses of study prescribed and the medium selected do not impair standards of
education or render the co- ordination of such standards either on an All India
or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a
degree of overlapping is inevitable. It is no t possible to lay down any
general test which would afford a solution for every question which might arise
on this head. On the one hand, it is certainly within the province of the State
Legislature to prescribe syllabi and courses of study and, of course, to
indicate the medium or media of instruction. On the other hand, it is also
within the power of the Union to legislate in respect of media of instruction
so as to ensure co-ordination and determination of standards, that is to ensure
maintenance or improvement of standards. The fact that the Union has not
legislated, or refrained from legislating to the full extent of its powers does
not invest the State with the power to legislate in respect of a matter
assigned by the Constitution to the union. It does not, however, follow that
even within the permitted relative fields there might not be legislative
provisions in enactments made each in pursuance of separate exclusive and
distinct powers which may conflict. Then would arise the question of repugnancy
and paramountcy which may have to be resolved on the application of the
"doctrine of pith and substance" of the impugned enactment. The
validity of the State legislation on University education and as regards the
education in technical and scientific institutions not falling within Entry 64
of List I would have to be judged having regard to whether it impinges on the
files reserved for the Union under Entry
66. In
other words, the validity of State legislation would depend upon whether it
prejudicially affects co-ordination and determination of standards, but not
upon the existence of some definite Union legislation directed to achieve that
purpose. If there be Union legislation in respect of co- ordination and
determination of standards, that would have paramountcy over the State law by
virtue of the first part of Art. 254(1); even if that power be not exercised by
the Union Parliament the relevant legislative entries being in the exclusive
lists, a State law trenching upon the Union field would still be invalid."
It further held :- "Item No.66 is a legislative head and in interpreting
it, unless it is expressly or of necessity found conditioned by the words used
therein, a narrow or restricted interpretation will not be put upon the
generality of the words. Power to legislate on a subject should normally be
held to extend to all ancillary or subsidiary matters which can fairly and
reasonably be said to be comprehended in that subject. Again there is nothing
either in item 66 or elsewhere in the Constitution which supports the
submission that the expression "co- ordination" must mean in the
context in which it is used merely evaluation, co-ordination in its normal
connotation means harmonising or bringing into proper relation in which all the
things co-ordinated participate in a common pattern of action. The power to
co-ordinate, therefore, is not merely power to evaluate, it is a power to harmonise
or secure relationship for concerted action.
The
power conferred by item 66 List I is not conditioned by the existence of a
state of emergency or unequal standards calling for the exercise of the power.
There
is nothing in the entry which indicates that the power to legislate on
co-ordination of standards in institutions of higher education, does not
include the power to legislate for preventing the occurrence of or for removal
of disparities in standards. This power is not conditioned to be exercised
merely upon the existence of a condition of disparity nor is it a power merely
to evaluate standards but not to take steps to rectify or to prevent disparity.
By express pronouncement of the Constitution makers, it is a power to
co-ordinate, and of necessity, implied therein is the power to prevent what
would make co- ordination impossible or difficult.
The
power is absolute and unconditional, and in the absence of any controlling
reasons it must be given full effect according to its plain and expressed
intention." Mr. Dave appearing for the Medical Council submitted that this
Court in Nivedita Jain's case did not say that all the Regulations framed by
the Medical Council under Section 33 of the Medical Council Act were directory.
He said that the Court in that case was considering Regulations 1 and 2 only
and it had held that while Regulation 1 was mandatory, Regulation 2 was of
directory character, i.e., it was recommendatory. Mr. Dave is correct in his
submission. The Division Bench in the impugned fell into basic error in holding
that this Court in Nivedita Jain's case said as if all the Regulations were
directory in nature. We may now examine that judgment and a few others cited at
Bar.
In
State of Madhya Pradesh and another vs. Kumari Nivedita Jain and others (1981
(4) SCC 296) there was challenge to the validity of the executive order passed
by the State Government relaxing the conditions relating to the minimum
qualifying marks for selection of students to medical colleges of the State in
respect of candidate belonging to Scheduled Castes and Scheduled Tribes
categories being violative of the Regulations framed under Section 33 of the
Indian Medical Council Act, 1956. The Court referred to the object of the Act
and to its various provisions relevant being Sections 19 and 19A of the Medical
Council Act. Nivedita Jain, who was a candidate for admission to the medical
college in the State of Madhya Pradesh, contended that the order of the State
Government, lowering the qualifying marks for Scheduled Castes and Scheduled
Tribes candidates for admission to medical colleges, contravened Regulation II
and would be hit by Section 19 of the Medical Council Act exposing the medical
colleges to the risk of being recognised. High Court had struck down the
Government's order being violative of Regulation II which had the force of a
statute. This Court considered Regulations I and II. While Regulation I
provided for admission to medical course stating that no candidate shall be
allowed to be admitted to the medical curriculum proper until he had attained
certain age and had passed certain examination, Regulation II provided for selection
of students and it said that selection of students to a medical college should
be based solely on merit of the candidate and it laid certain criteria to be
adopted uniformly throughout the country for the determination of merit. This
Court observed as under :- "Regulation I prescribed the eligibility f a
candidate for admission to medical courses. For maintaining proper standards in
Medical Colleges and Institutions it comes within the competence of the Council
to prescribe the necessary qualification of the candidates who may seek
admission into the Medical Colleges. As this Regulation is within the
competence of the Council, the Council has framed this Regulation in a manner
which leaves no doubt that this Regulation is mandatory. The language of this
Regulation, which starts with the words "no candidate shall be allowed to
be admitted to the medical curriculum until...", make this position
absolutely clear. On the other hand the language in Regulation II which relates
to s election of candidates clearly goes to indicate that the Council itself
appears to have been aware of the limitation on its powers to frame any such
regulation regarding the procedure or process of selection of candidates for
admission to the medical course out of the candidates qualified or eligible to
seek such admission." The Court said that it was of the opinion that the
use of the words "should be" in Regulation II was deliberate and was
intended to indicate the intention of the Medical Council that it was only in
the nature of recommendation.
Regulation
I, which lays down conditions or qualifications for admission into medical
course, comes within the competence of Medical Council under Section 33 of the
Medical Council Act and it is mandatory and the Medical Council has used
language to manifest the mandatory character clearly, whereas Regulation II,
which deals with process or procedures for selection from amongst eligible
candidates for admission, is merely in the nature of a recommendation and
directory in nature, as laying down the process or procedure for selection or
admission of candidates out of the candidates eligible or qualified for such
admission under Regulation I. The Court said that from the provisions of the
Medical Council Act it was apparent that the authority of the Medical Council
extends to the sphere of maintaining proper medical standards in medical
colleges or institutions necessary for obtaining recognised medical
qualifications and by virtue of this authority it may be open to the Medical
Council to lay down the minimum educational qualification required for the
students seeking admission into medical colleges. Medical Council was
authorized to prescribe minimum standards of medical education required for
granting recognized medical qualification including standards of post-graduate
medical education. The Medical Council Act envisages that if it appears to the
Medical Council that the course of study and examination to be undergone in, or
the proficiency required from students at any examination held by any
university or medical institution do not conform to the standard prescribed by
the Medical Council or that the staff, equipment, accommodation, training and
other facilities for instructions and training provided in such university or
medical institutions or in any college or other institution affiliated to that
university do not conform to the standards prescribed by the Medical Council,
it will make representation to that effect to the Central Government and on the
consideration of the representation made by the Medical Council, the Central
Government may take action in terms of the provisions contained in Section 19
of the Medical Council Act. The Medical Council Act also empowers the Medical
Council to take various measures to enable it to judge whether proper medical
standard is being maintained in particular institutions or not.
In Dr.
Ambesh Kumar vs. Principal, L.L.R.M. Medical College, Meerut and others (1986
(Supp.) SCC 543) there were challenge to an order of the State Government
laying down qualifications regarding eligibility of a candidate to be
considered for admission to the post-graduate degree in M.D., M.S. and diploma
course in M.D., M.S. etc. on the basis of merit in accordance with the
Regulations made under the Indian Medical Council Act. It was contended that
the order of the State was invalid as it encroached upon Entry 66 of List I of
the Seventh Schedule to the Constitution.
The
State Government had issued a notice inviting applications for admission to
various post-graduate courses in degree and diploma in different specialities
of the medical colleges. In para 4 of the said notice it was specifically
stated that the minimum eligibility qualification of the applicants would be
according to the recommendations of Medical Council of India. Over and above
what the Regulation of the Medical Council has prescribed the State Government
laid the following provision :- "No candidate shall be eligible for
admission to post-graduate degree or diploma course, who has obtained less than
55 per cent and 52 per cent marks respectively, for the two courses (degree
& diploma) in merit calculated in accordance with para 2 of the said
notice." This Court considered the question so raised and upheld the
Government's order with the following observations:- "20. The only
question to be considered is whether the impugned order is repugnant to or
encroaches upon or it is in conflict with the power of the Central legislature
to make laws in respect of matters specified in Entry 66 of List I of the
Seventh Schedule to the Constitution. The Indian Medical Council pursuant to
Section 33 of the Indian Medical Council Act had made certain recommendations
which have been embodied in the Regulations made by the Central Government
laying down the criteria or standards for admitting the candidates to various
post-graduate disciplines in the Medical Colleges of the State. These
Regulations, as has been quoted hereinbefore, clearly prescribe that the
candidates should be selected strictly on merit judged on the basis of academic
record in the undergraduate courses i.e. MBBS Course and this selection should
be conducted by the University. There are also other eligibility qualifications
provided in the said Regulations namely the candidates must have obtained full
registration i.e. they must have completed satisfactorily one year of
compulsory rotating internship after passing the final MBBS examination and
also they must have done one year's house man ship prior to admission to the
post-graduate degree or diploma course." "22. In the instant case the
number of seats for admission to various post-graduate courses both degree and
diploma in Medical Colleges is limited and a large number of candidates
undoubtedly apply for admission to these courses of study. In such circumstances
the impugned order laying down the qualification for a candidate to be eligible
for being considered for selection for admission to the said courses on the
basis of the merit as specified by Regulations made under the Indian Medical
Council Act, cannot be said to be in conflict with the said Regulations or in
any way repugnant to the said Regulations. It does not in any way encroach upon
the standards prescribed by the said Regulations.
On the
other hand by laying down a further qualification of eligibility it promotes
and furthers the standards in an institution." In Osmania University
Teachers' Association vs. State of Andhra Pradesh and another (1987 (4) SCC
671) the question for consideration before the Court was if the Andhra Pradesh Commissionerate
of Higher Education Act, 1966 was constitutionally valid being violative of
Entry 66 List I or Entry 25 List III of the Seventh Schedule to the
Constitution. The Court examined the relevant entries in List I and List III
and said that the field to which impugned Act applied was already occupied by
the University Grants Commission Act, passed by the Union Parliament. The
impugned Act had established a Commissionerate which the Court said had
practically taken over the academic programmes and activities of the
Universities and Universities had been rendered irrelevant if not non-
entities. The Court observed as under :- "14. Entry 25 List III relating
to education including technical education, medical education and universities
has been made subject to the power of Parliament to legislate under Entries 63
to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be
read together. Entry 66 gives power to Union
to see that a required standard of higher education in the country is
maintained. The standard of Higher Education including scientific and technical
should not be lowered at the hands of any particular State or States.
Secondly,
it is the exclusive responsibility of the Central Government to co-ordinate and
determine the standards for higher education. That power includes the power to
evaluate, harmonise and secure proper relationship to any project of national
importance. It is needless to state that such a co-ordinate action in higher
education with proper standards, is of paramount importance to national
progress. It is in this national interest, the legislative field in regard to
'education' has been distributed between List I and List III of the Seventh
Schedule.
15.
The Parliament has exclusive power to legislate with respect to matters
included in List I. The State has no power at all in regard to such matters. If
the State legislates on the subject falling within List I that will be void,
inoperative and unenforceable.xxx xxx xxx xxx
25. It
is apparent from this discussion that the Commissionerate Act has been drawn by
the large in the same terms as those of the UGC Act. The Commissionerate Act,
as we have earlier seen also contains some more provisions. Both the
enactments, however, deal with the same subject matter. Both deal with the
co-ordination and determination of excellence in the standards of teaching and
examination in the Universities. Here and there, some of the words and
sentences used in the Commissionerate Act may be different from those used in
the UGC Act, but nevertheless, they convey the same meaning. It is just like
referring to the same person with (sic by) different descriptions and names.
The intention of the legislature has to be gathered by reading the statute as a
whole. That is a rule which is now firmly established for the purpose of
construction of statutes. The High Court appears to have gone on a tangent. The
High Court would not have fallen into an error if it had perused the UGC Act as
a whole and compared it with the Commissionerate Act or vice versa." Mr.
Reddy, appearing for the State of Karnataka, referred to a decision of this
Court in Ajay Kumar Singh and others vs. State of Bihar and others (1994 (4)
SCC 401). In this case the Court was considering the question of permissibility
of providing reservations under clause (4) of Article 15 of the Constitution in
post-graduate medical courses in the State of Bihar. The State Government had
issued a prospectus relating to post-graduate medical admission test, 1992
providing reservation in favour of socially and educationally backward classes,
Scheduled Castes, Scheduled Tribes and women. One of the contentions raised was
that the Regulations made by the Medical Council prescribed reservation of
seats in post-graduate medical courses on any grounds whatsoever and that the
Regulation being statutory in nature prevailed over the executive orders made
by the State of Bihar in exercise of executive powers. The Court again
considered the relevant entries in Lists I and III of Seventh Schedule to the
Constitution and the provisions of the Medical Council of India Act and the
Regulations framed under Section 33 of that Act. The Court observed as under :-
"18. A review of the provisions of the Act clearly shows that among other
things, the Act is concerned with the determination and coordination of
standards of education and training in medical institutions. Sections 16, 17 18
and 19 all speak of "the courses of study and examinations to be
undergone" to obtain the recognised medical qualification. They do not
speak of admission to such courses.
Section
19-A expressly empowers the council to "prescribe the minimum standards of
medical education" required for granting undergraduate medical
qualification. So does Section 20 empower the council to prescribe standards of
postgraduate medical education but "for the guidance of universities"
only. It further says that the council "may also advise universities in
the matter of securing uniform standards for postgraduate medical education
throughout India". (The distinction between the language of Section 19-A
and Section 20 is also a relevant factor, as would be explained later.) Clause
(j) of Section 33 particularises the subjects with respect to which Regulations
can be made by the council. It speaks of the courses and period of study and
the practical training to be undergone by the students, the subjects of
examination which they must pass and the standards of proficiency they must
attain to obtain the recognised medical qualifications but it does not speak of
admission to such courses of study. Indeed, none of the sections aforementioned
empower the council to regulate or prescribe qualifications or conditions for
admission to such courses of study. No other provision in the Act does. It is
thus clear that the Act does not purport to deal with, regulate or provide for
admission to graduate or postgraduate medical courses.
Indeed,
insofar as postgraduate courses are concerned, the power of the Indian Medical
Council to "prescribe the minimum standards of medical education" is only
advisory in nature and not of a binding character. In such a situation, it
would be rather curious to say that the Regulations made under the Act are
binding upon them. The Regulations made under the Act cannot also provide for
or regulate admission to postgraduate courses in any event." The Court
then said that the Regulations made by the Medical Council speak generally of
students for post- graduate training being selected "strictly on merit
judged on the basis of academic record in the undergraduate course". This,
the Court said, was more in the nature of advice and not in binding direction
and went to observe as under :- "The Regulation does not say that no
reservations can be provided under Article 15(4). The power conferred upon the
State by clause (4) of Article 15 is a constitutional power. The said power
obviously could not have been overridden or superseded by a Regulation made by
the Indian Medical Council under the Act. The Regulation must be read
consistent with Article 15(4) and if so read, it means that the students shall
be admitted to postgraduate training strictly on the basis of merit in each of
the relevant classes or categories, as the case may be. Any other construction
seeking to give an absolute meaning to the said Regulation would render it
invalid both on the ground of travelling beyond the Act. It may also fall foul
of Article 15(4)." The Court also referred to an earlier decision in Nivedita
Jain's case (1981 (4) SCC 296) where, as noted in that case, this Court said
that Regulation II was directory and did not have any mandatory force. Whether
a Regulation is directory or mandatory will depend upon the language used in
the Regulation and the object of the Act it seeks to achieve.
Mr. Rama
Jois, appearing for J.N. Medical College, Belgaum, respondent No. 16, submitted
that if the State or the University has fixed intake for admission to medical
college as on June 1, 1992 that would continue to hold good unless the medical
college asks for increase. He said that even if the Medical Council had passed
production of the seats existing on June 1, 1992 it could do so only after
notice and after hearing the medical college. He submitted that in the letter
of the Central Government to the Secretary, Medical Council, which is dated
January 19, 1994, clarification was given as to the word
"established" mentioned in Section 10-A of the Medical Council Act,
as amended. In this letter the opinion of the Ministry of Law, Justice and
Company Affairs (Department of Legal Affairs) was communicated, which was to
the following effect :- "The provisions of Section 10-A of the IMC
(Amendment) Act, 1993 will not apply to those colleges who have obtained all
necessary statutory/ administrative approvals from the respective authorities
and where admission procedure was commenced prior to 1st June, 1992.
This
would imply that all those Medical Colleges who have started the admission
procedure prior to 1.6.1992, after taking the following permission, will be
outside the purview of 'Amendment' Act;-
(i)
Permission of the concerned State Government.
(ii)
Affiliation of the concerned University.
This
would also apply to cases of increase in admission capacity in Medical Colleges
and starting of new Post Graduate Medical Courses." He said there were
further answers to queries raised by the Medical Council in this letter, which
showed that Section 10-A would not be applicable in case admission procedure
was commenced prior to June 1, 1992. In support of his submission that such a
clarification will be binding on the Medical Council Mr. Rama Jois referred to
a decision of this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and
another (1981 (4) SCC 173). In this case Central Board of Direct Taxes issued
two circulars which were binding on the Tax Department in administering or
executing a certain provision in the Act. The Court said that quite apart from
the binding of the circulars "they are clearly in the nature of contemporanea
expositio furnishing legitimate aid in the construction of sub-section (2). The
rule of construction by reference to contemporanea expositio is a well
established rule for interpreting a statute by reference to the exposition it
has received from contemporary authority, though it must give way where the
language of the statute is plain and unambiguous". We do not think that
the aforesaid decision of the Supreme Court under the Income-tax Act, 1961
would be applicable to the clarification issued by the Central Government in
its letter dated January 19, 1994. Section 119 of the Income-tax Act, 1961
empowers the Central Board of Direct Taxes to issue such orders, instructions
and directions to other Income-tax authorities as it may deem fit for the
proper administration of that Act. The powers which the Central Board of Direct
Tax exercise under Section 119 of the Income-tax Act, 1961 are statutory in
nature. A court is, however, not bound by any clarification that may be issued
by the Central Government or any other authority interpreting a certain
provision of law. We may, however, note that in the case of J.N. Medical
College, we are told, that certain proceedings are pending either in the
Karnataka High Court or before the Medical Council regarding the number of
seats for admission to the College. It is not necessary for us to comment on
those proceedings.
The
Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It
prevails over any state enactment to the extent the State enactment is
repugnant to the provision of the Act even though the State Acts may be
relatable to Entries 25 or 26 of List III (Concurrent List).
Regulations
framed under Section 33 of the Medical Council Act with the previous sanctions
of the Central Government are statutory. These regulations are framed to carry
out the purposes of the Medical Council Act and for various purposes mentioned
in Section 33. If a regulation falls within the purposes referred under Section
33 of the Medical Council At, it will have mandatory force. Regulations have
been framed with reference to clauses (fa), (fb) and (fc) (which have been
introduced by the Amendment Act of 1993 w.e.f. August 27, 1992) and clauses (j), (k) and (l) of Section 33.
Considering
the law laid by this Court in aforementioned judgments and provisions of law,
we do not think that the dispute raised by the State of Karnataka is any longer
re integra.
Proceedings
before the learned single Judge started on a complaint received through post
wherein it was alleged that Medical Colleges in the State of Karnataka had been
permitted by the State Government to admit students far in excess of the
admission capacities fixed by the Medical Council and that this was so despite
the directions issued by the Medical Council in its letter dated November 21,
1994 to the State Government, copied of which were also sent to the Director of
Medical Education and to the Principals and Deans of the Medical colleges
inviting their attention to the provisions of Sections 10A,10B, and 10c of the
Medical Council Act which amendment came into effect from August 27, 1992. In this
letter of the Medical colleges in the State of Karnataka were admitting
students in excess of the number of students fixed by the Medical Council
because of the orders of the Karnataka Government. The letter gave details of
the admission capacity fixed by the Medical Council and their sanction by the
State and yet the admission of students in some colleges was over and above the
strength that was fixed by the State Government. A direction, therefore, was
issued to take corrective steps and to reduce the excess number of admissions
being made in the medical colleges in the State to the number as approved by
the Medical Council. By letter dated August 24, 1995, the Central Government
informed the State Government that if there was any proposal to increase the
admission capacity in medical colleges, it was required to be submitted to the
Central Government in the prescribed format. The State Government was,
therefore, requested to submit the proposal to increase the admission capacity
college-wise to the Central Government. Since there was no response to the
request made by the Medical Council to reduce the admission capacity to that
fixed by the Medical Council, it requested the Central Government by its letter
dated August 20, 1996 for taking penal action under Section 19 of the Medical
Council Act for the purpose of derecognising the medical qualifications granted
by the universities in the State. Pleas of the State Government and colleges in
the State were that the Medical Council had n statutory authority under the
Medical Council Act or any other existing law to fix the admission capacity of
the medical colleges in the State and that even Sections 10A, 10B and 10c did
not vest any such power in the Medical Council and further that even after June
1, 1992 or for that matter August 27, 1992, the power to fix the admission
capacity of a medical college could be traced only to the State Government
under Section 53(10) of the Karnataka Universities Act, 1976 read with Section
4(1) (b) of the Capitation Fee Act. Learned single Judge did not find any merit
in any of these pleas raised by the respondents and allowed the writ petition
as aforesaid. As noted above on appeal by the State of karnataka, the Division
Bench in its impugned judgment partly allowed the same.
The
State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act
must give way to the central Act, namely, the Indian Medical Council Act, 1956.
Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in
collection of capitation is empowered to fix the maximum number of students
that can be admitted but that number cannot be over and above that fixed by the
Medial Council as per the Regulations. Chapter IX f the Karnataka Universities
Act, which contains provision for affiliation of colleges and recognition of
institutions, applies to all types of colleges and not necessarily to
professional colleges like medical colleges. Sub-section (10) of Section 53,
falling in Chapter IX of this Act, provides for maximum number of students to
be admitted to course for studies in a college and that number shall not exceed
the intake fixed by the University or the Government.
But
this provision has again to be read subject to the intake fixed by the Medical
Council under its Regulations.
It is
the Medical Council which is primarily responsible for fixing standards of
medical education and over-seeing that these standards are maintained. It is
the Medical Council which is the principal body to lay down conditions for
recognition of medical colleges which would include the fixing of intake for
admission to a medical college. We have already seen in the beginning of this
judgment various provisions of the Medical Council Act. It is, therefore, the
Medical Council which in effect grants recognition and also withdraws the same.
Regulations
under Section 33 of the Medical Council Act, which were made in 1977, prescribe
the accommodation in the College and its associated teaching hospitals and
teaching and technical staff and equipment in various departments in the
college and in the hospitals. These Regulations are in considerable details.
Teacher-student ratio prescribed is 1 to 10 exclusive of the professor or head
of the department.
Regulations
further prescribe, apart from other things, that number of teaching beds in the
attached hospitals will have to be in the ratio of 7 beds per student admitted.
Regulations
of the Medical Council, which were approved by the Central Government in 1971,
provide for the qualification requirements for appointments of persons to the
posts of teachers and visiting Physician/Surgeons of medical colleges and
attached hospitals.
In the
colleges in the State of Karnataka, the Medical Council prescribed the number
of admissions that these colleges could take annually on the basis of these
regulations. Without permission of the Medical Council, the number of
admissions could not be more than that prescribed at the time of granting
recognition to the college. However, it appears that in violation of the
provisions of the Medical Council Act, the universities and the State
Government have been allowing increase in admission intake in the medical
colleges in the State in total disregard of the regulations and rather in
violation thereof. These medical colleges cannot admit students over and above
the intake fixed by the Medical Council. These colleges have acted illegally in
admitting more students than prescribed.
Universities
and the State Government had no authority to allow increase in the number of
admissions in the medical colleges in the State. When regulations prescribed
that number of teaching beds will have to be in the ratio of 7 beds per student
admitted any increase in the number of admissions will have corresponding
increase in the teaching beds in the attached hospital. These regulations have
been over-looked by the universities and the State Government in allowing
admissions over and above that fixed by the Medical Council. Respondents have
not produced any document to show that increase in admission capacity to
medical colleges over that fixed by the Medical Council has any relation to the
existence of relevant infrastructure in their respective colleges and that
there is also corresponding increase in number of beds for students in the
attached hospitals.
Standards
have been laid by the Medical Council, an expert body, for the purpose of
imparting proper medical education and for maintaining uniform standards of
medical education through out the country. Seats in medical colleges cannot be
increased indiscriminately without regard to proper infrastructure as per the
Regulations of the Medical Council.
A
medical student requires gruelling study and that can be done only if proper
facilities are available in a medical college and hospital attached to it has
to be well equipped and teaching faculty and doctors have to be competent
enough that when a medical student comes out he is perfect in the science of
treatment of human being and is not found wanting in any way. 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 ailments during the course of their study. The Medical Council, in
all fairness, does not wish to invalidate the admissions made in excess of that
fixed by it and does not wish to take any action of withdrawing recognition of
the medical colleges violating the regulation. Henceforth, however, these
medical colleges must restrict the number of admissions fixed by the Medical
Council. After the insertion of Sections 10A, 10B and 10C in the Medical
Council Act, the Medical Council has framed regulations with the previous
approval of the Central Government which were published in the Gazette of India
dated September 29, 1993 (though the notification is dated September 20, 1993).
Any medical college or institution which wishes to increase the admission
capacity in MBBS/higher courses (including diploma/degree/higher specialities)
has to apply to the Central Government for the permission along with the
permission of the State Government and that of the university with which it is
affiliated and in conformity with the regulations framed by the Medical
Council. Only the medical college or institution which is recognised by the
Medical Council can so apply.
Having
thus held that it is the Medical Council which can prescribe the number of
student to be admitted in medical courses in a medical college or institution
it is the Central Government alone which can direct increase in the number of
admissions but only on the recommendation of the Medical Council. In our
opinion, the learned single Judge was right in his view that no medical college
can admit any student in excess of its admission capacity fixed by the Medical
Council subject to any increase thereof as approved by the Central Government
and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the
State Universities Act and Section 41(b) of the State Capitation Fee Act. To
say that the number of students as permitted by the State Government and or
University before June
1, 1992 could continue
would be allowing an illegality to perpetuate for all time to come. The
Division Bench, in our opinion, in the impugned judgment was not correct in
holding that admission capacity for the purpose of increase or decrease in each
of the medical colleges/institutions has got to be determined as on or before
June 1, 1992 with reference to what had been fixed by the State Government or
the admission capacity fixed by the medical colleges and not with reference to
the minimum standard of education prescribed under Section 19A of the Medical
Council Act which the Division Bench said were only recommendatory. Nivedita
Jain's case does not say that all the regulations framed by the Medical Council
with the previous approval of the Central Government are directory or more
recommendatory. It is not that only future admission will have to be regulated
on the basis of capacity fixed or determined by the Medical Council. Plea of
the State Government that power to regulate admission to medical colleges is
prerogative of the State has to be rejected.
What
we have said about the authority of the Medical Council under the Indian
Medical Council Act would equally apply to the Dental Council under the
Dentists Act.
Accordingly,
appeal by the Medical Council of India (SLP (C) No.14839/97) is allowed and the
impugned judgment of the Division Bench is set aside and we restore the
judgment of the learned single Judge. Other appeals by the State of Karnataka
(SLP (C) No.20035/97) and Rajiv Gandhi Dental College (SLP (C) No.5471/98) are
dismissed. Medical Council of India shall be entitled to costs.
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