Public Interest Litigation No.6 of 2013

25th March, 2013

Petitioner Counsel: Shri B.G. Kulkarni
Respondent Counsel: Shri R.M. Bhangde,Shri N.W. Sambre,Shri Abhijit Deshpande

Cases Cited:
Padmashree Dr. D.Y. Patil Medical College, Navi Mumbai Vs. Union of India & Ors., 2012(7) ALL MR 556=W.P. No.5817 of 2012, Dt.19/7/2012 [Para 26]
State of Maharashtra Vs. Indian Medical Association and others, 2002(1) ALL MR 681 (S.C.)=(2002) 1 SCC 589 [Para 27]

JUDGMENT

R. K. Deshpande, J. :- Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

2. This petition is filed by the petitioner-Indian Medical Association, Nagpur, in public interest, challenging the communication dated 28122012 issued by the Board of Governors in supersession of the respondent No.1-Medical Council of India (for short, 'MCI'), returning the applications submitted by the respondent No.4-the Dean, Government Medical College and Hospital, Nagpur, for increase of seats in various Post Graduate Courses on the ground that the applications were deficient in Consent of Affiliation, which was required to be submitted along with the said applications on 31-5-2012. The petition further claims a direction to the respondent No.1-MCI to process the said applications further in accordance with law.

3. The facts necessary giving rise to the controversy involved in this petition, are stated below :

The respondent No.1-MCI is a statutory body constituted under Section 3 of the Indian Medical Council Act, 1956 (for short, 'the said Act') and is empowered under Section 3B to grant independently, the permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in the admission capacity in any course of study or training, referred to in Section 10A of the said Act without prior permission of the Central Government. The respondent No.1-MCI has been superseded by the Central Government in exercise of its powers under Section 3A of the said Act and by issuing the notification, has constituted the Board of Governors in supersession of the Medical Council of India (for short, 'the said Board'). The said Board is empowered to exercise all the powers and discharge the functions, as are conferred upon the respondent No.1-MCI under clause (b)(i) of Section 3B of the said Act.

4. In exercise of the powers conferred by Section 10A read with Section 33 of the said Act, the Central Government has framed the regulations, which are called Opening of a New or Higher Course of Study or Training Regulations (for short, 'the said Regulations'), which came into force with effect from 14-8-2000. This petition is concerned with Part II of the said Regulations, which deals with the Scheme for permission of the Central Government to increase the admission capacity in any course of study or training (including post graduate course of study or training) in the existing Medical Colleges/Institutions. Clause 3 therein deals with the qualification criteria for submission of the applications, clause 4 deals with the registration of application, clause 5 deals with the prescribed period, clause 6 deals with the evaluation by Medical Council of India, and clause 7 deals with the grant of permission. AppendixII under the said Regulations prescribes the format of application for permission of the Central Government to increase the admission capacity in the Medical Colleges/Institutions. The said Regulations prescribe the time schedule for processing the applications received under the Scheme, which has been substituted by way of the notification published on 11-1-2010, is under :

No.	State of Processing	Time Schedule
1.	Receipt of applications by the Central Government	1st April to 30th April
2.	Forwarding of applications by Central Government to Medical Council of India for technical scrutiny.	Up to 31st May
3.	Recommendation of Medical Council of India to Central Government for issue of Letter of Permission.	Up to 31st January
4.	Issue of Letter of Permission by Central Government.	Up to 28th February

5. The respondent No.4 is the Dean, Government Medical College and Hospital, Nagpur. The said College applied on 30-5-2012 to the respondent No.1-MCI in the format prescribed under AppendixII under the said Regulations for grant of permission to increase the admission capacity of the said Government Medical College in various post-graduate courses as under :

No.	Subjects	Seats
(a)	Orthopaedics	From 01 to 08
(b)	Forensic Medicine	From 02 to 05
(c)	Skin and Venerology	From 01 to 04
(d)	Radio Diagnosis	From 04 to 07

On the date of the submission of the applications, i.e. on 30-5-2012, the respondent No.4-College did not have the Consent of Affiliation, which was a condition under clause 3 of the qualification criteria under the said Regulations. Hence, the applications were accompanied by a certificate dated 30-5-2012 issued by the respondent No.3-Maharashtra University of Health Sciences, Nashik ('MUHS') stating that the proposal of the respondent No.4-College is under process for issuance of Consent of Affiliation for increase in the capacity of the post-graduate courses in question. The respondent No.4-College also submitted an undertaking dated 30-5-2012 along with the applications that "Consent of Affiliation from Maharashtra University of Health Sciences, Nashik will be submitted within 15 days as process of getting this letter is on. Provisional Letter of Consent is attached herewith for your kind information and further necessary action". Accordingly, the Consent of Affiliation dated 4-6-2012, as required, was submitted to the respondent No.1-MCI on 7-6-2012.

6. On 7-1-2013, the respondent No.4-College received a letter dated 28-12-2012 from the respondent No.1-MCI informing that the applications were scrutinized in accordance with the provisions of the said Regulations, and on scrutiny, it was observed that the applications do not meet the mandatory criteria as per the decision of the Board of Governors, for broad specialty post-graduate courses. It informs that clause 4 of the said Regulations requires that the applications complete in all respects submitted by the last date as prescribed in the Regulations shall be registered and incomplete applications will be returned. Since the applications submitted by the respondent No.4-College were found to be incomplete, in particular deficient in Consent of Affiliation submitted after the last date for submission of the applications for the post-graduate courses, i.e. 31-5-2012, in terms of the directions of the said Board, the applications were returned along with the fees of Rs.8 lacs paid by the respondent No.4-College. This is the subjectmatter of challenge in the present petition.

7. This petition has been filed by the Indian Medical Association, Nagpur, through its President Dr. Harish Ghanshyamdas Chandak, alleging that the petitioner-Association is concerned about the facilities of the medical education in general, and those available in the Government and Governmentaided Colleges. The public interest shown is that the additional increase in the post graduate seats in the respondent No.4-College would help in augmenting the strength of the qualified Professors by associating the welfare of the Society. It is alleged that the Indian Medical Association has its headquarters located in New Delhi, and the petitioner is the subbranch of the Maharashtra State Indian Medical Association, which is the branch of the Indian Medical Association. It is claimed that the onus of the petitioner is the fulfillment of socioeconomic responsibility of making the facilities of the medical education available to various students, including those admitted against the reserved categories. It is alleged that since the petitioner-Association is the organization of medical profession in the Country with the onus and responsibility of catering to the cause in an objective and dispassionate manner, it has approached this Court by way of public interest litigation.

8. Before proceeding to decide the case on merits, the preliminary objection raised by the respondent No.1-MCI is that there is no public interest involved in this case and the petition should not be entertained at the instance of the petitionerIndian Medical Association. The facts stated in earlier para in respect of the claim of the petitioner-Association to file this petition in public interest, are not disputed. No doubt, it is the respondent No.4-College, which is directly aggrieved by the communication impugned in this petition and could have filed the petition. However, there seems to be reluctance on the part of the Government Authorities to file a petition against the Medical Council of India. It is possible that the respondent No.4-College may have then thought of making fresh application for grant of permission to increase the admission capacity. If all other facilities and infrastructure are made available in the respondent No.4-College in the Academic Session 20-12-2013 so as to get increase in the number of seats in various post-graduate courses, then it will be the Society, or the public at large, which will be affected because of delay in granting such permission, resulting in wastage. The benefit of admitting more students will be lost, which shall be detrimental to Society and the public at large. The respondent No.4-College has supported the challenge raised by the petitioner-Association. The petitioner-Association itself has nothing to gain or lose either by filing the petition or by not filing it. It will be the public at large, which will be benefited by the relief, if granted in this petition. The exercise by the petitioner-Association seems to advance the interests of the students, who can avail the optimum use of facilities and infrastructure available in the respondent No.4-College. It is not a case of lack of bona fides and hence, we do not think that the petition should not be entertained at the instance of the petitioner-Association. The preliminary objection is, therefore, rejected.

9. On merits, the undisputed factual position needs to be stated first :

The respondent No.4-College is recognized by the respondent No.1-MCI for running MBBS, Post-Graduate Diploma/Degree and Higher Specialty Courses and it is affiliated to the respondent No.3-MUHS. The applications in question were submitted to the respondent No.1-MCI on 30-5-2012, i.e. before the last date of 31-5-2012 prescribed under the said Regulations. One of the conditions of the qualification criteria under clause 3.3 in Part II of the said Regulations was to attach a Consent of Affiliation obtained from the University, to which the respondent No.4-College is affiliated. The requirement of attachment of the Consent of Affiliation letter under clause 3.3 of the said Regulations along with the applications filed on 30-5-2012 was not complied with.It is not in dispute that all other essential conditions of qualifying criteria under clause 3 of the said Regulations, except one in clause 3.3, were complied with and the applications have not been returned for any such defect. The Consent of Affiliation was submitted on 4-6-2012, i.e. within a period of four days after the expiry of the last date. The applications submitted by the respondent No.4-College have not been processed on merits by the respondent No.1-MCI, but the same have been returned along with the fees paid, solely on the ground that the respondent No.4-College has failed to submit the Consent of Affiliation along with the said applications on or before 31-5-2012.

10. The contention of Shri Kulkarni, the learned counsel appearing for the petitionerIndian Medical Association, supported by Shri Sambre, the learned Government Pleader appearing for the respondent No.4-College, is that there was a substantial compliance of the qualification criteria prescribed under clause 3 in Part II of the said Regulations, and instead of returning the applications along with the fees, the respondent No.1-MCI ought to have processed the said applications to consider the claim of the respondent No.4-College for increase in the admission capacity in the post-graduate courses in question, as required by sub-section (7) of Section 10A of the said Act. The alternate submission is that the respondent No.4-College was, as a matter of right, entitled to an opportunity to remove the defects in any such application and to supply the necessary particulars in terms of the requirement of Section 3B(b)(ii) read with Section 10A(3)(a) of the said Act and clause 6 of the said Regulations.

11. The stand of the respondent No.1-MCI is that the respondent No.4-College having admitted to have failed to fulfill the essential criterion of submitting the Consent of Affiliation from the respondent No.3-MUHS along with the applications on 31-5-2012, the respondent No.1-MCI was not left with any choice but to return the said applications along with the fees paid in terms of clause 4 of the said Regulations. Hence, the action of the respondent No.1-MCI reflected in the communication dated 28-12-2012 impugned in the present petition, cannot be faulted with. It is the further stand taken that the requirement of providing a reasonable opportunity of removing the defects and supplying the necessary particulars under Section 3B(b)(ii) read with Section 10A(3)(a) of the said Act, was not attracted in the present case. According to Shri Bhangde, the learned counsel appearing for the respondent No.1-MCI, since the essential criterion was not fulfilled, the applications did not deserve further consideration on merits in terms of sub-section (7) of Section 10A of the said Act. It is his further submission that the theory of substantial compliance in respect of fulfillment of the essential criterion cannot be invoked.

12. From the rival submissions, the only question, which we propose to consider, is whether in the facts and circumstances of this case, the impugned action on the part of the respondent No.1-MCI, returning the applications of the respondent No.4-College for increase in the admission capacity in various post-graduate courses, can be rendered as arbitrary, unreasonable, unjust and violative of Article 14 of the Constitution of India?

13. The said Act prescribes two different authorities for grant of permission to increase in the admission capacity in any course of study or training referred to in Section 10A of the said Act. One is the Central Government under Section 10A(1), and the other is the Board of Governors in supersession of the respondent No.1-MCI under Section 3B(b)(ii) of the said Act. Such applications made either to the Central Government or to the respondent No.1-MCI are treated as the scheme for increase in the admission capacity in the post-graduate courses under Part II of the said Regulations.

14. If the applications are made to the Central Government for grant of such permission, the same are processed in accordance with the said Regulations and referred to the respondent No.1-MCI for its recommendations, as prescribed under clause (a) of sub-section (2) of Section 10A of the said Act. The respondent No.1-MCI is then required to process the Scheme in terms of sub-sections (3) and (7) of Section 10A to forward its recommendations to the Central Government, which may either accept or reject the said recommendations under sub-section (4) of Section 10A of the said Act. If the said recommendations are accepted, they become a permission by the Central Government, as required by sub-section (1) of Section 10A of the said Act.

15. If the applications are made directly to the Board of Governors in supersession of the respondent No.1-MCI in terms of Section 3B(b)(ii) of the said Act, then it does not call for any interference of the Central Government, as contemplated under clause (a) of sub-section (2) of Section 10A of the said Act. The applications so received by the respondent No.1-MCI are required to be processed in accordance with sub-sections (3) and (7) of Section 10A of the said Act read with the relevant Regulations. The Board of Governors is empowered under Section 3B(b)(ii) to grant or refuse such applications without prior permission of the Central Government under Section 10A(1) of the said Act, including exercise of power to finally approve or disapprove.

16. We are not concerned here with the mode of obtaining permission prescribed under the said Act or the Regulations from the Central Government, but we are concerned with the mode and manner prescribed for grant of such permission directly by the respondent No.1-MCI in exercise of its power under Section 3B(b)(ii) of the said Act. Hence, the provisions of Section 3B of the said Act are reproduced below :

"3B. Certain modifications of the Act.--During the period when the Council stands superseded,

(a) the provisions of this Act shall be construed as if for the word "Council", the words "Board of Governors" were substituted;

(b) the Board of Governors shall -

(i) exercise the powers and discharge the functions of the Council under this act and for this purpose, the provisions of this Act shall have effect subject to the modification that references therein to the Council shall be construed as references to the Board of Governors;

(ii) grant independently permission for establishment of new medical colleges or opening a new or higher course of study or training or increase in admission capacity in any course of study or training referred to in section 10A or giving the person or college concerned a reasonable opportunity of being heard as provided under section 10A without prior permission of the Central Government under that section, including exercise of the power to finally approve or disapprove the same; and

(iii) dispose of the matters pending with the Central Government under section 10A upon receipt of the same from it."

The provision of clause (b)(ii) in Section 3B, which is relevant, refers to the provisions of Section 10A, and for the purposes of deciding the controversy involved in the present case, the provisions of Section 10A(1), (2), (3) and (7), being relevant, are reproduced below :

"10A. Permission for establishment of new medical college, new course of study.-- (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 section, "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 admission 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.

(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 timelimit 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 timelimit 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."

17. While deciding the applications for grant of permission, the said Board is required under Section 3B(b)(ii) to grant a reasonable opportunity to the College concerned of being heard, as provided under Section 10A of the said Act. Section 10A nowhere prescribes the time-schedule for submission of the application or for its further process either by the Central Government or by the respondent No.1-MCI. Perusal of Section 10A(3)(a) of the said Act clearly indicates that 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, if the scheme is found to be 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.

18. Clause 6 in Part II of the said Regulations is also relevant and the same is reproduced below :

"6. EVALUATION BY MEDICAL COUNCIL OF INDIA:-

TheCouncil shall evaluate the application to accept the desirability and prima facie feasibility for increasing the admission capacity at the existing medical college/institution and the capability of the medical college/institution to provide the necessary resources and infrastructure for the scheme.

While evaluating the application, the Council may seek further information, clarification or additional documents from the applicant as considered necessary and shall carry out a physical inspection to verify the information, clarification or additional documents supplied by the medical college. The dates of receipt of application for increase in admission capacity in post-graduate courses and processing dates are given in the schedule. The dates of receipt of application and processing of applications in respect of increase of seats in MBBS course shall be as per the schedule included in the Establishment of Medical College Regulations, 1999."

The evaluation contemplated by clause 6, reproduced above, is in respect of any deficiency in the scheme submitted, including the information or the documents considered as necessary. It also contemplates verification as to whether the receipt of the applications is as per the date given in the Schedule. In the process of verification, the Council may carry out a physical inspection to verify the information or clarification or the documents submitted by the medical college concerned.

19. As per the time-schedule prescribed in the said Regulations, which is reproduced earlier, the applications have to be received by the Council up to 31st May, and if the recommendations are to be forwarded to the Central Government, then the same are up to 31st January. The letter of permission is required to be issued up to 28th February. Thus, there is a gap of about eight or nine months, during which the applications remain pending with the Council. During this period, the applications can be scrutinized on different levels and the information, clarification or the additional documents, as may be considered necessary, can be called from the person or the college concerned. We are conscious of the fact that Section 10A(3)(a) read with clause 6 of the said Regulations, reproduced above, confers a discretion upon the respondent No.1-MCI to call upon the person or the college concerned to remove the defects in the scheme, to call for necessary particulars, information, clarification or the additional documents, as may be considered necessary, and to give a reasonable opportunity to the person or the college concerned for making a written representation.

20. The respondent No.1-MCI is entrusted with the functions and duties, as are conferred upon the Central Government under the Act, including grant or refusal to grant permission to increase its admission capacity in the Post-Graduate Courses of Study. It is thus a public function/duty, which is being performed by the statutory body. Hence, its action should conform to all the norms and standards of reasonableness, as are implicit under Article 14 of the Constitution of India, while passing an order returning the applications. No reasons are required to be assigned by the respondent No.1-MCI, to conform its action to all such norms and standards of reasonableness, but the action not conforming to all such norms and standards need to be justified, supported or prompted by the sound and valid reasons. The normal rule should, therefore, be to utilize the timegap provided, for the purpose of exercising the discretion to grant reasonable opportunity to the person or the college concerned to remove all such defects, deficiencies in the scheme and/or to supply information, clarification, particulars and documents, as are found necessary, and to verify the same, so as to consider the worth or the merits of the scheme. The denial of such opportunity should be by way of exception and need to be supported by sound and valid reasons so as to rule out the possibility of arbitrariness and ensure fairness and equality of treatment. In the absence of this, the action on the part of the respondent No.1-MCI can be struck down being violative of Article 14 of the Constitution of India.

21. In the present case, undisputedly, the applications were submitted in the prescribed format within the time-schedule stipulated under the said Regulations, i.e. on or before 31-5-2012. Along with the applications, a certificate from the respondent No.3-MUHS that the proposal for issuance of Consent of Affiliation is under process was enclosed with the undertaking by the respondent No.4-College that it will be furnished within fifteen days. In fact, when a question was put to the counsel for the respondent No.3-MUHS, he said that either there is affiliation or no affiliation, there is no procedure for Consent of Affiliation, and there is no separate format. In view of this, the certificate so granted can be treated as the Consent of Affiliation.

22. Be that as it may, within a period of four days, the defect of nonsupply of the Consent of Affiliation was cured by submitting it on 4-6-2012. The first scrutiny was done after a lapse of almost a period of six months. During this period, the applications remained unprocessed. The date on which the said Board considered the applications of the respondent No.4-College, the defect was non-existing. The communication impugned was issued on 28-12-2012 and no reasons, muchless sound and valid, are recorded or assigned for not accepting the compliance. In such a situation, no reasonable man of ordinary prudence could have returned the applications along with the fees, by adopting hypertechnical approach that the Consent of Affiliation was not submitted along with the applications submitted on 30-5-2012. The action impugned on the part of the respondent No.1-MCI is, therefore, totally arbitrary, unjust, unreasonable and violative of Article 14 of the Constitution of India.

23. It is not possible to accept the contention of Shri Bhangde that the requirement of providing a reasonable opportunity to rectify the defects and to supply the necessary particulars under Section 10A(3)(a) applies only in respect of the factors specified under sub-section (7) of Section 10A of the said Act. Sub-section (3) of Section 10A contemplates a procedure to be followed immediately upon receipt of the applications for grant of permission. It operates at the first level of scrutinizing the applications by the respondent No.1-MCI to find out whether the qualification criteria prescribed under the said Regulations are fulfilled or not. The supply of documents considered to be necessary under clause 6 in Part II of the said Resolutions can also be at the stage of first scrutiny. Thus, the exercise under Section 10A(3)(a) read with clause 6 above, is required to be carried out initially, upon receipt of the application/scheme. What is contemplated after such exercise, is the consideration of the scheme on merits under Section 10A(3)(b), having regard to the factors referred to in sub-section (7). It is at that stage, the question of grant of reasonable opportunity of being heard, as is mentioned under Section 3B(b)(ii), arises, if the approval is to be refused.

24. The reliance is placed by the respondent No.1-MCI upon clause 4 in Part II of the said Regulations, which is reproduced below :

"4. REGISTRATION OF APPLICTION:-

Incomplete application will be returned to the medical college/institution by the Ministry of Health and Family Welfare along with the enclosures and application fee.

Application found complete in all respects will be registered by the Ministry of Health and Family Welfare and forwarded to Council within 30 days from the date of receiving it all for evaluation and recommendations. Acceptance of the application will only signify the acceptance of application for evaluation. It will, however, under no circumstances mean approval of the application for grant of permission."

Perusal of the aforesaid clause clearly indicates that it applies only to the applications which are submitted for permission of the Central Government under Section 10A(1) of the said Act. It is the scrutiny of the applications at the level of the Ministry of Health and Family Welfare of the Central Government under Section 10A(2)(a) and (b) for further process, which is contemplated in clause 4 of the said Regulations. The provision of Section 10A(2)(a) does not contemplate scrutiny by the Council. When the applications are made directly to the respondent No.1-MCI in terms of Section 3B of the said Act, there is no question of any interference by the Central Government at any level to scrutinize the applications, and hence clause 4 does not come into picture. The respondent No.1-MCI was not competent to invoke the power of the Central Government under clause 4 of the Regulations. If there had been any such intention on the part of the Legislature to confer power upon the Council to return the applications, which are incomplete, it would have employed the word 'Council' in clause 4, along with the words 'Ministry of Health and Family Welfare'.

25. Assuming that the said provisions apply in respect of the scrutiny of the applications received by the respondent No.1-MCI under Section 3B of the said Act, it is the period of thirty days which is prescribed in later part of clause 4 itself, upon receipt of the application, for scrutiny and forwarding the said applications to the respondent No.1-MCI for obtaining its recommendations. If during the period of thirty days, the defects or deficiencies in submitting such applications are removed, then there is no question of return of the applications along with the fees. Hence, the respondent No.1-MCI could not have adopted the course of action under clause 4 of the said Regulations, reproduced above, when admittedly the defect of supplying a Consent of Affiliation was cured within a period of four days from the date of submission of the applications.

26. In the judgment of the Division Bench of this Court in the case of Padmashree Dr. D.Y. Patil Medical College, Navi Mumbai v. Union of India & Ors., delivered in Writ Petition No.5817 of 2012 : [2012(7) ALL MR 556] on 19-7-2012 at Bombay, it was a case where the Essentiality Certificate, which is one of the qualification criteria issued by the State Government on 29-3-2011, was found to be defective and not in conformity with the norms prescribed by the Medical Council of India. The corrigendum rectifying the Certificate was submitted to the Medical Council of India on 29-2-2012, that is after the rejection of the applications. It was neither a question urged or decided by the said judgment as to whether the requirement of providing a reasonable opportunity to remove the defects, was involved. Hence, the ratio of the said judgment does not apply to the facts of this case.

27. At this stage, a useful reference may be made to the judgment of the Apex Court in the case of State of Maharashtra v. Indian Medical Association and others, reported in (2002) 1 SCC 589 : [2002(1) ALL MR 681 (S.C.)], wherein it has been held that there cannot be two laws - one for the State Government and the other for private management. But the compliance with requirement of law either by a private management or by the State Government depends upon the object and purpose for which the Legislature has enacted the law. It has further been held that if viewed in this light, it is manifest that anyone else excepting the State Government or the Union Territory, desirous of setting up a new medical college, is required to obtain Essentiality Certificate from the State Government as regards the desirability of proposed location where the medical college is intended to be established.

28. In the present case, it is not in dispute that the respondent No.4 is the Government Medical College, which is already affiliated to the respondent No.3-MUHS in respect of the post-graduate courses run by it. The question involved is, therefore, only in respect of increase in the admission capacity of the existing post-graduate courses. The requirement has already been fulfilled within a period of four days, and on the date of the scrutiny or verification by the Board of Governors, which was done almost seven months after the receipt of the applications, the defect did not subsist.

29. The impugned communication was received by the respondentCollege on 7-1-2013. This petition is filed on 28-1-2013. The petitioner sought interim relief of direction to the respondent No.1-MCI to process the applications filed by the respondent No.4-College and complete the inspection on or before 31-1-2013. This Court rejected the said application on 24-1-2013, observing that it is in the nature of mandatory direction, which is sought, and it cannot be granted without hearing the other side. On 29-1-2013, after hearing the learned counsels appearing for the parties, this Court passed an order that granting of time to the other side will not come in the way of passing appropriate orders by this Court. The matter was thereafter actually heard on 7-3-2013 and 8-3-2013. However, due to the change of assignments, it was declared not to be treated as partheard. From the time-schedule prescribed, it appears that the entire process needs to be completed, including the inspection of College by the respondent No.1-MCI from 31st of May to 31st of January and the letter of permission was required to be issued up to 28th of February. In the present case, the time is consumed because of pendency of this petition from 24-1-2013. As pointed out earlier, the respondent No.1-MCI could have processed the applications on merits. In view of this, we are constrained to issue direction to the respondent No.1-MCI to complete the process on or before 31-5-2013 so that the reliefs claimed in the petition are not frustrated.

30. Hence, for the reasons stated above, the petition succeeds. The impugned communication dated 28-12-2012 issued by the respondent No.1-MCI, is hereby quashed and set aside. The respondent No.1-MCI is directed to process the applications of the respondent No.4-Government Medical College and Hospital, Nagpur, for permission to increase the admission capacity in various post-graduate courses run by the respondent No.4-College, in accordance with sub-sections (3) and (7) of Section 10A and to pass appropriate orders under Section 3B(b) (ii) of the said Act, on or before 31st May, 2013. It is needless to say that if the permission is granted, then the same can be made effective from the next academic session, i.e. 2013-14.

31. Rule is made absolute in above terms. No order as to costs.

Petition allowed.