JUDGMENT 1. - Both these two petitions involve common questions of law and facts having arisen out of common cause of action therefore are being disposed of by this common order. 2. Petitioner Nos. 1 to 6 in first writ petition No. 5549/2001 are officials of National Institute of Medical Sciences Campus Shobha Nagar, Jaipur, which is established by a Registered Charitable Public Trust renown as Indian Medical Trust (petitioner No. 1 in 2nd WP No. 200/2002) through its Managing Director Dr. Anurag Tomar (petitioner No. 2 in 2nd petition). 3. In first writ petition No. 5549/2001, a writ of mandamus is sought against respondents No. 2 & 3 (Medical Council of India) for issuing a formal permission as recommended by the Central Government in its report dated 1.10.2001 submitted by a duly constituted inspection committee of MCI. While in 2nd WP No. 200/02, a writ has been sought for declaring respondent No. 1's action demanding express permission from the Central Government to run medical college ignoring statutory deemed permission under section 10A(5) as illegal being unconstitutional and also for directing it (State) to allot students as per essentiality certificate dated 13.11.2000 and accordingly directing the University to permit petitioner Institute's students to participate in 1st year MBBS examination 2001-02. 4. Admitted facts are that the petitioner Trust and Institute had applied on 28.8.2000 to the Central Government for permission to set up a new private medical college in the form of prescribed scheme formulated under section 10A(2) of the Indian Medical Council Act, 1956 (for short MCI Act. This form has been incorporated in the memo of petition No. 200/02, itself. After having received the scheme, by its letter dated 13th October, 2000 (Annl) the respondent Central Government required an (1) Essentiality Certificate and (2) Consent of affiliating University in the format prescribed in the MCI Regulations because the essentiality certificate & consent of affiliation enclosed with its application were not in the prescribed format. These documents in the prescribed format were directed to be sent to the Central Government by 15th November, 2000 positively otherwise its proposal would be treated as incomplete and will be returned without any further opportunity or extension of time. It was also made to note that the counting of penod under section 10A(5) of the MCI Act would start from the date of receipt of above documents. It was also made to note that the counting of penod under section 10A(5) of the MCI Act would start from the date of receipt of above documents. Pursuant to letter (Annl) the petitioner Trust sent the desired documents (essentiality certificate dated 13.11.2000 (Ann5) & consent of affiliating University (Ann6) dated 9.12.2000) through its letter dated 9.12.2000. Admittedly, the scheme of the petitioner Trust was found perfect and then referred to the Medical Council of India under section 3 of the MCI Act to make its recommendation. Consequently, the Medical Council of India carried out an inspection of the petitioner Institute twice, firstly on 30-31.3.2001 followed by compliance verification, & secondly on 24-25.9.2001, as per which also except few deficiencies the inspection team was duly satisfied and thereby the team sent its report on 1.10.2001 (Ann2) after getting minor deficiencies removed. But a dispute arose when the petitioner Trust and Institute did not receive requisite express permission to establish a private medical college and, therefore, upon statutory period of one year for a deemed permission under section 10A(5) having come to expire on 9.12.2001, the petitioner Institute informed the Central Government and its Health Ministry by letter dated 12.12.01 (Ann3) claiming its statutory right to have legally established College by virtue of deeming provisions of the MCI Act. Such an intimation was also sent to the respondent State on 18.12.2001 (Ann4) requesting to allot 150 students to the petitioner Institute as per essentiality certificate of 13.11.2000 (Ann5). It is the case of the petitioner Trust that the respondents State & University both pointed out that unless they receive a permission from the Central Government, no allocation of intake of 150 students can be allowed and to that effect, a letter dated 17.1.2002 (Ann.AA1) was sent by the respondent State to the petitioner Institute. 5. It is the case of the petitioner Trust that the respondents State & University both pointed out that unless they receive a permission from the Central Government, no allocation of intake of 150 students can be allowed and to that effect, a letter dated 17.1.2002 (Ann.AA1) was sent by the respondent State to the petitioner Institute. 5. In 1st WP No. 5549/01 it is the case of the petitioners that despite having consecutive inspections and verification reports in favour of the Trust & Institute employer of the petitioners, recognition as well as permission under the MCI Act & Regulations are deliberately being withheld by the respondent MCI officials whose acts are nothing but ill motivated and it has resulted in violation of Articles 39, 40, 41, 42 read with 14 of the Constitution so also violative of Article 21 of the Constitution because the action on the part of the respondents would cause forthcoming unemployment to them. 6. In 2nd WP No. 200/02 it is the case of the petitioner Trust & Institute that upon having attained statutory right on expiry of one year from the date of submission of desired documents to the Central Government, it has got statutory deemed permission by virtue of Section 10A(5) of the MCI Act and therefore, the Medical College has been started by the petitioner Trust and also got admitted few of students 15% NRI quota but for want of full strength, studies are not being properly commenced and since there is likelihood of not permitting those students of the petitioner College from appearing in the examination by the University of Rajasthan for want of sufficient number of students, the petitioner Trust & Institute have approached this Court upon having aggrieved by the inaction on the part of respondent No. 1 in not allotting 150 intake of students as per essentiality certificate of 13.11.2000. 7. In reply to the writ petition, the respondent State has categorically stated that the petitioner Trust or Institute has neither been granted any recognition by the Central Government or permission by the Medical Council of India to run the medical college, inasmuch as they cannot invoke Section 10A(5) of the MCI Act nor presume deemed permission or consequential recognition by the Central Government, State Government and the University of Rajasthan. It is the case of the respondent State that the Central Government took a specific stand that Section 10A(5) gets invoked only in a situation where the applicant successfully demonstrates and establishes on the date of making an application under section 10A that all necessary preconditions in relation to infrastructural, teaching and other facilities having been fulfilled by him. That apart, the petitioner's case did not fall within S.10A(5) and moreover one year envisaged in S.10A(5) according to the Central Government would start only from the date when all conditions referred to above are fulfilled by applicant. The inspections made by the MCI officials in respect of the petitioner Institute have not been denied but it is their (respondents) case that on 24.4.2001 the Executive Committee of MCI sent its recommendations to the Ministry of Health not to issue letter of intent citing deficiencies in staff, clinical material, space and other infrastructural activities, and thereby the Central Government issued a notice on 11.5.2001 affording opportunity of personal hearing before disapproval of the scheme and directed to appear on 28.5.2001 to explain why the scheme of the petitioner Institute be not disapproved and then time was sought to rectify deficiencies upto 30.6.2001. Though as per petitioners compliance report dated 17.7.2001 they have rectified all deficiencies but on 27.7.2001 the MCI intimated the petitioner its report of 17.7.2001 did not indicate removal of wanting deficiencies and ultimately the MCI carried out second inspection on 24-25.9.2001 during which also the MCI executive committee noted certain deficiencies in the College so another immediate inspection was carried out to verify the same. 8. Be that as it may, on a consideration of petitioner Institute's representation and entire material on record before the Central Government, the Minister concerned took decision on 9.11.2001 that a team constituted by the Ministry should visit the College to check the claims and counter claims of the College as well as MCI and accordingly admittedly a team consisting of Jt. Secretary of the Health Ministry and Principal Lady Harding Medical College, New Delhi was constituted and before the inspection was to be carried out by aforesaid team, the petitioner College had allegedly moved the Apex Court. 9. Secretary of the Health Ministry and Principal Lady Harding Medical College, New Delhi was constituted and before the inspection was to be carried out by aforesaid team, the petitioner College had allegedly moved the Apex Court. 9. But it is the case of the petitioner Trust & Institute that it has sought permission before the Apex Court to withdraw its writ petition (Civil) No. 541/2001 with liberty to approach the High Court and this permission was accorded by the Apex Court in its order dated 7.12.2001, whereafter 2nd WP No. 200/02 has been preferred. 10. At the very outset I would prefer to have a resume of catena of decisions cited at the Bar during the course of hearing which would enable me to analyse the controversy at issue herein in a easy manner. First & foremost decision is discussed as follows:- 11. In (1) Unni Krishna Vs State of AP ( 1993(1) SCC 645 ) three questions were formulated by the Apex Court (Per Mohan, J., while concurring with the view rendered by B.P. Jeevan Reddy, J.) as follows:- 1. Whether the Constitution of India guarantees a fundamental right to education to its citizens ? 2. Whether there is a fundamental right to establish an educational institution under Article 19(1)(g)? 3. Does recognition or affiliation make the educational institution an instrumentality ? 12. As regards question No. 1, the Apex Court concluded that the right to free education upto the age of 14 years is a fundamental right. With regard to question No. 2 the Apex Court held as under : "71. The argument that every activity or occupation by the mere fact of its not being obnoxious or harmful to society, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by their very nature, cannot be qualified to be protected as fundamental rights. 72. Accordingly, it is held that there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students could do so but Section 22 & 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind." 13. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students could do so but Section 22 & 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind." 13. As regards third question, the Apex Court (per Mohan, J.) held as under:- "76. Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the University could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State, Affiliation is with regard to the syllabi and the courses of study. Unless and until they are in accordance with prescription of the University, degrees would not be conferred. The educational institutions prepare the students for the examination conducted by the University. Therefore, they are obliged to follow the syllabi and the courses of the study." 14. In para 203, their Lordships observed that for the purposes of these cases, they shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country but this right, as they made it clear, was not an absolute one and it was held subject to such law as may be made by the State in the interest of general public. Therefore, their Lordships made it clear that the right to establish an educational institution did not carry with it the right to recognition or the right to affiliation. It has further been held that it is open to a person to establish an educational institution, admit students, inpart education, conduct examination and award certificates to them but he or the educational institution has no right to insist that the certificates or degrees awarded by such institution should be recognised by the State-muchless have they the right to say that the students trained by it should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. 15. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. 15. Their Lordships also held that since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by article 14 of the Constitution, because no Government authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions and doing so would amount to abdicating its obligations enjoined upon it by Part III. 16. Applying these tests, their Lordships evolved the scheme, keeping in view the positive features of the several Central and State enactments also which every authority granting recognition/affiliation shall impose upon the Institutions seeking recognition/affiliation. The idea behind the scheme was to eliminate discretion in the management altogether in the matter of admission because it is the discretion in such admissions that is at the root of the several ills complained of, which has mainly led to the commercialisation of education. 17. The scheme evolved by the Apex Court was in the nature of guidelines which the appropriate Governments- recognising/affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate, for grant of permission, grant of recognition or grant of affiliation, as the case may be. This scheme was confined only to professional colleges and held not applicable to colleges run by Government or to University Colleges. However it was made clear that only those institutions which seek (a) permission to establish (b) recognition/affiliation from the appropriate authority shall alone be made bound by the scheme. 18. However from the scheme evolved in Uni Krishna's case (supra) it is crystal that for grant of permission, grant of recognition, grant of affiliation, the conditions envisaged in the scheme were held necessarily to be imposed, in addition to such other conditions as appropriate authority may think appropriate. 18. However from the scheme evolved in Uni Krishna's case (supra) it is crystal that for grant of permission, grant of recognition, grant of affiliation, the conditions envisaged in the scheme were held necessarily to be imposed, in addition to such other conditions as appropriate authority may think appropriate. In this view of the matter, no private educational institution was a lowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the educational institution and relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be. 19. The scheme evolved by the Apex Court, albeit is elaborately stated in last paras (206 to 210) but it is pertinent to mention that since it was made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions as they may think appropriate but not inconsistent with this scheme, the appro riate & competent authority in deference to the decision of the Apex Court framed, has promulgated the Medical Council of India (Norms and Guidelines for fees and Guidelines for Admissions in Medical Colleges) Regulations, 1994 (for short Regulations 1994). Further, by the Indian Medical Council (Amendment) Act, 1993 (Act No. 31 of 1993) under Gazette notification dated 3rd April, 1993, which was made deemed to have come into force on the 27th day of August, 1992, the Indian Medical Council (Amendment) Ordinance 1993 was repealed and the amendments in Section 33 and introduction of new Sections 10A, 10B, & 10C were envisaged in the Indian Medical Council Act, 1956 in deference to the scheme evolved by the Apex Court in Unni Krishna's case (supra). 20. Upon a conjoint reading of the scheme evolved in Unni Krishnan's case adopted by way of framing of Regulations 1994 and introduction of new Sections 10A to 10C in the MCI Act, 1956, I must concisely state significant and salient features relevant for disposal of the present petitions as follows:- (1) 50% of the seats in every professional college shall be filled by the nominees of the Government or University, which were described as "free seats". (2) Remaining 50% seats were described as "payment seats" shall be filled by those candidates who are prepared to pay the fee prescribed therefor. (3) Allotment of students against free & payment seats shall be made by way of selection & merit determined on the basis of common entrance examination, inasmuch as the criteria of eligibility & all other conditions shall be the same for free & payment seats. (4) The management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. (5) The rule of merit shall be followed even in reserved categories. (6) All the applications for admission to all seats in private colleges shall be called for by the competent authority alone, alongwith applications for admission to Government/University Colleges of similar nature. (7) The application forms for admission shall be issued by the competent authority, containing a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference upto three professional colleges. (8) Number of seats available in the professional colleges shall be fixed by the appropriate authority and no professional college shall be permitted to increase its strength except under the permission of authority granted by the appropriate authority. (9) Each professional College shall intimate the competent authority, the State Government and the concerned University in advance the fee chargeable for the entire course commencing from the academic year. The total fees shall be divided into number of years/semesters of study. In the first instance fees only for the first year/semester shall be collected. The payment students will be required to furnish either cash security or Bank guarantee for the fees payable for the remaining years/semesters. (10) The fees chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent authority. (11) It would be appropriate if the UGC frames regulations under Section 12A(3) of the UGC Act regulating the fees which the affiliated colleges, operating on no grant-in-aid basis are entitled to charge. (10) The fees chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent authority. (11) It would be appropriate if the UGC frames regulations under Section 12A(3) of the UGC Act regulating the fees which the affiliated colleges, operating on no grant-in-aid basis are entitled to charge. The Indian Medical Council and Central Government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10A and to impose such a condition on existing colleges under Section 10 c. (12) Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up atleast 10 days time will be given to the students to opt to be admitted against payment seats. The students shall be entitled to indicate their choice for any three colleges (if available). (13) The payment candidates shall be allotted to different professional colleges on the basis of merit cum choice and the allotment shall be made by the competent authority. (14) A professional college shall be bound to admit the students so allotted by the competent authority. Casual vacancies or unfilled ones if any shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat. (15) Even in the matter of reserved categories, the principle of inter se merit shall be allowed. (16) No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against free seat or payment seat. (17) After making allotment, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. Such list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. 21. Such list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. 21. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with scheme contained in Part III of the judgment (Unni Krishna's case, ibid). Therefore in my considered view also, no Government or University or authority shall be competent to grant recognition or affiliation except in accordance with the scheme evolved by the Apex Court (supra) & duly adopted by the legislature pursuant thereto. 22. Norms of admission can have a direct impact on the standards of education. There can be rules for admission consistent with and not affecting adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. 23. Admissions must be made on a basis duly consistent with the standards laid down by a statute or regulation framed by the Central Government in exercise of its powers under Entry 66 List I. I have lent support from the dictum of law laid down in Dr. Preeti Sharma Vs State of MP (1999(7) SCC 121) . In every case minimum standards laid down by the Central statute or under it, have to be complied with by the State while making admissions and in addition, it may lay down other norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down. Re. Citations relied by Shri. Dalip Singh 24. Shri Dalip Singh appearing on behalf of the University of Rajasthan placed reliance upon the decisions which I deal with in a concise manner as follows. 25. In Dr. Re. Citations relied by Shri. Dalip Singh 24. Shri Dalip Singh appearing on behalf of the University of Rajasthan placed reliance upon the decisions which I deal with in a concise manner as follows. 25. In Dr. Subodh Nautiyal Vs State of UP ( AIR 1991 SC 1131 ) , the course had started in September for the session therefore the Apex Court observed that to admit a student four months after the commence would not at all the correct. The main ground in that case was that till as late of 4.1.1991 some admissions had been given but the Apex Court observed that admissions must be over prior to the date of commencement, because intention of the Court has been to appropriately regularise the teaching in Medical Colleges both at the UG as also PG level. Hence the Apex Court did not interfere in favour of the petitioner. But in the present case the facts being different, this cited decision does not help Shri Dalip Singh in any manner. 26. Next case is State of Punjab Vs Renuka Singla ( 1994(1) SCC 175 ) wherein relief sought for was as to admission against reserved seat, so the Apex Court held that Court cannot direct creation of additional seat contrary to statutory provisions in order to accommodate the litigating candidate. It was a case where the candidate made claim only while challenging his non- admission before court so the Apex Court observed that candidate making such claim in the application for admission and closing certificate in support with the application itself has a better claim than the candidate who instead made such claim only while challenging his non-admission before court. Moreover in that case the High Court directed admission of respondent 1 on compassionate ground and issued a fiat to create an additional seat, which was thus held as amounting to a direction to violate Ss.10A & 10B of the Dentists Act. Again such is not the claim as was in cited decision, hence it does not render any aid to Shri Singh. 27. Again such is not the claim as was in cited decision, hence it does not render any aid to Shri Singh. 27. In Dental Council of India v. Harpreet Kaur Bal (1995 Supp(1) SCC 304) the Apex Court observed that where an educational institution embarks upon granting admissions without the requisition affiliation and recognition and the students join the institution with their eyes wide open as to the lack of legitimacy in the admission, it would be preposterous to direct the University to hold examination for the benefit of such students. Even it was made crystal that a relief must be such as would be considered permissible in law and worked out by the application of legally recognised principles. Without disputing the dictum of law laid down by the Apex Court (supra) suffice is to say that such a decision was rendered in different issues than in the present case, hence it does not help Shri Singh. 28. In Shri Chander Chinar Bada Askhara Udasin Society Vs State of J&K ( 1996(5) SCC 732 ) , the admissions were made by the college in accordance with directions issued by High Court which were held by the Apex Court being inconsistent with directions/principles laid down by the Apex Court. However the Apex Court held that though due to indifferent attitude of State Govt. and haste shown by the institutions, the so called selected students, who were said to have been admitted, were virtually on the roads, but only on equitable grounds, a procedure which is not sanctioned by law cannot be approved only to mitigate the hardship of such candidates who have sought admissions in the medical college. Again in the present case no relief is being granted on equitable grounds hence without questioning the dictum of law laid down by the Apex Court rather being conscious of such a settled principle, suffice is to say that this decision (supra) does not help Shri Dalip in advancing cause of his client. 29. In Maharashi Dayanand Arya Shiksha Mahavidyala Vs State of Bihar (1993 Supp(1) SCC 436) two questions arose for determination (1) whether the appellant institution is entitled to recognition and (2) in what way should the students who were permitted to take the examination under the orders of the Court be dealt with. 29. In Maharashi Dayanand Arya Shiksha Mahavidyala Vs State of Bihar (1993 Supp(1) SCC 436) two questions arose for determination (1) whether the appellant institution is entitled to recognition and (2) in what way should the students who were permitted to take the examination under the orders of the Court be dealt with. It was a case where the State Government had in the meantime taken a decision not to recognise the institution on the plea that the conditions were not satisfied, whereas in the present case the issue relates as to invoking of deeming provision of the permission to run the medical college under section 10A of the MCI Act, inasmuch as no rejection has been communicated. Hence this decision (supra) again does not help Shri Dalip Singh in any manner. 30. In Dental Council of India Vs Subharti KKB Charitable Trust ( 2000(9) SCC 477 ) there was communication of refusal of permission by Dental Council of India to conduct examination fir admission to medical college and the High Court issued writ of mandamus to the Dental Council to grant approval for conducting such examination but the Apex Court observed, "we do not- approve the order passed by the High Court, particularly, the orders passed on 26.2.1999 and 17.4.1999 granting various approvals and the mandamus which was granted to the Dental Council of India to grant approval". 31. In Homoeopathic Charitable Trust Vs State of Maharashtra ( 2000(9) SCC 319 ) the University recommended for the grant of affiliation and such recommendations are pending with the Government. Hence it was observed that it will be for the Government to pass appropriate orders in accordance with the relevant Rules & Regulations of the Act. 32. In K.S. Bhoir Vs State of Maharashtra ( AIR 2002 SC 444 ) the State Government sought one time increase in admission capacity in various medical colleges on the premise that medical colleges possessed all the facilities. It was a case of increase in admission capacity which according to the Apex Court is permissible only when a scheme in accordance with the regulations, is submitted by a medical college under section 10A of the MCI Act to the Central Government. It was a case of increase in admission capacity which according to the Apex Court is permissible only when a scheme in accordance with the regulations, is submitted by a medical college under section 10A of the MCI Act to the Central Government. Since the High Court issued direction to the Central Government to increase the admission capacity in a medical college, the Apex court held that such a direction is not permissible under the Act to act contrary to the statutory provisions because the power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law. In that case, since there being no compliance of requirements under the Act, the Central Government refused the permission for one time increase in the admission capacity in the medical college. It was a case having different issue that involved in the present case (where issue is as to the deeming permission by invoking S.10A(5) of the Act), hence the cited decision (supra) does not help any manner to any of the respondents. 33. In K.S. Bhoir Vs State of Maharashtra (supra), the Apex Court observed as under:- "Section 10A read with regulations framed by medical council shows that it is mandatory on the party of the institution or management desirous of increasing its admission capacity in any course of study to submit a scheme complying with the provisions of sub-section (7) of S.10A and the requirements envisaged under the regulations. If any of the infrastructure facilities, as required either under sub-section (7) of S.10A or under the regulations are absent, it is open to the Central Government to refuse permission for increase in the admission capacity in any course of study in a medical college. The object of compliance of requirements mentioned in sub-section (7) of S.10A and the regulations it to ensure the maintenance of highest standard of education." 34. In view of the decision in K.S. Bhoir Vs State of Maharashtra (supra), it is settled law that the compliance of the requirement under the MCI Act and Regulations being mandatory, in the absence of its compliance, no permission can be granted by the Central Government under section 10A of the MCI Act. In view of the decision in K.S. Bhoir Vs State of Maharashtra (supra), it is settled law that the compliance of the requirement under the MCI Act and Regulations being mandatory, in the absence of its compliance, no permission can be granted by the Central Government under section 10A of the MCI Act. Shri B.P. Agarwal Senior Advocate, his associate Shri Bharat Vyas for the respondent Central Government & MCI and Shri Mohd. Rafiq, Addl. Advocate General for the respondent State vociforeously laid much stress on the following observations of the Apex Court in K.S. Bhoir's case (supra) : "So long as the requirements under Section 10A of the Act are not complied with, no permission can be granted by the Central Government. If any direction is issued by the High Court to the Central Government to increase the admission capacity in a medical college, it would be in the teeth of the statutory provisions and amounted to amending the provisions of S.10A..." "As yet no direction to the Central Government to grant one time increase in the admission capacity in the medical college, could be issued by the High Court. In such a situation one can sympathise with the plight of such students, who for no fault of their own were to be dislodged. However, the compassion and sympathy has no role to play where a rule of law is required to be enforced. Adjusting equities in exercise of extra ordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council under Section 10A of the Act is different thing. The refusal by High Court to issue direction to the Central Govt. was therefore, proper" roper. 35. In Shrawan Kumar Vs DG of Health Services ( 1993 (3) SCC 332 ) eligibility certificate granted to the petitioner was withdrawn resulting into consequential cancellation of admission to the MBBS but the Apex Court quashed such order of withdrawal. The refusal by High Court to issue direction to the Central Govt. was therefore, proper" roper. 35. In Shrawan Kumar Vs DG of Health Services ( 1993 (3) SCC 332 ) eligibility certificate granted to the petitioner was withdrawn resulting into consequential cancellation of admission to the MBBS but the Apex Court quashed such order of withdrawal. Shri Dalip Singh relied upon one of the clauses approved by the Apex Court as scheme prescribing the procedure to be followed for allotment of 15% all India quota for admission to MBBS/BDS courses in various colleges in the country whereunder as per clause (20) the whole allotment and admission process of the 15% seats for all India quota will be over by September 30 and any seat remaining vacant thereafter will be deemed to have been surrendered back to the colleges/States. Re.Citations relied by Shri B.P. Agarwal 36. Shri B.P. Agarwal learned Senior Advocate appearing for the respondent Union of India also cited various decisions, which were also relied on by his colleague except one, to which I now dwell upon as follows. 37. In Baba Mungipa Medical College Vs Govt. of Tripura ( 1997(8) SCC 682 ) Baba Mungipa Education Trust applied to the Central Government for permission to set up the College as required by the MCI Act but no action was taken despite various legal proceedings having been taken and ultimately the Apex Court had directed the Central Government to take expeditious steps for processing of the application. However the Trust was successful in getting a provisional affiliation of the College from the University. But it was a case where various deficiencies were pointed out in the inspection report of the MCI but they could not have been removed, therefore, the Apex Court held that until and unless the defects pointed out by the Medical Council are removed there cannot be any question of granting recognition to the College. 38. But it was a case where various deficiencies were pointed out in the inspection report of the MCI but they could not have been removed, therefore, the Apex Court held that until and unless the defects pointed out by the Medical Council are removed there cannot be any question of granting recognition to the College. 38. In MCI Vs State of Karnataka ( 1998 (6) SCC 131 ) the Apex Court held that fixation of admission capacity in medical colleges/institutions is the exclusive function of Medical Council of India and increase in number of admissions can only be directed by Central Government on the recommendation of the medical council and accordingly the State Government and/or Universities are not entitled to do so even prior to 1.6.1992 because Sections 10A to 10C of the Central (MCI) Act conferring such power on medical council and Central Government prevail over Section 53(1) of the State Act of University, 1976, inasmuch as Regulations framed with previous sanction of Central Government have statutory force and if they fall within the purposes referred to under section 33 of the MCI Act, they will have mandatory force. 39. I have no doubt rather no authority to dispute the dictum of law laid down by the Apex Court in the decisions cited either by Shri Dalip Singh or Shri .P. Agarwal on behalf of their clients (respondents), hence without disputing such principles of law with due respect, suffice is to say that the decisions cited (supra) on behalf of the respondents do not at all render any assistance in advancing their respective case, keeping in view peculiar & different circumstances of issues involved herein. 40. As regards the decision of DB of Himachal Pradesh High Court in State of HP Vs Union of India ( AIR 1998 HP 46 ) Shri B.P. Agarwal contended that this judgment stands overruled and set aside by the Apex Court in MCI Vs State of HP ( 2000 (5) SCC 63 ) which is connected order to Union of India Vs Era Educational Trust ( 2000 (5) SCC 57 ) . 41. In Union of India Vs Era Educational Trust (supra) the Apex Court laid down principles for granting interim relief tinder Order 39 Civil Procedure Code should be kept in mind by High Court in writ petition. 41. In Union of India Vs Era Educational Trust (supra) the Apex Court laid down principles for granting interim relief tinder Order 39 Civil Procedure Code should be kept in mind by High Court in writ petition. It was a case where the High Court on the very day of presentation of petition u/Art.226 granted interim mandatory relief to run medical college without allowing Central Govt. adjournment for filing affidavit in reply after obtaining instructions from the department concerned. In MCI Vs State of HP (connected order to UOI Vs Era Educational Trust ) (supra) there was admittedly deficiencies because of which permission had not been granted by the MCI to start the College, therefore the Apex Court observed as Under : "Since the refusal was based on deficiencies for running a medical college, it would have been appropriate for the High Court to have remitted the matter to the Medical Council of India or the Union of India for reconsideration, even if it was of the opinion that the order of the Medical Council deserved to be set aside, rather than to have issued a writ of mandamus directing grant of permission." 42. Lastly latest decision has been cited at the time of conclusion of arguments by Shri B.P. Agarwal who is associated with Shri Bharat Vyas for the respondent Central Government & MCI i.e. Union of India Vs All India Children Care & Ed. Dev. Soc. Azamgarh JT 2002 (3) SC 30) wherein the Apex Court held as under:- "From a perusal of the scheme contained in Section 10A of the Act, it is evident that an application submitted in full compliance with the statutory and mandatory pre-conditions laid down under Section 10A of the Act alone would be entitled to the benefit of deeming approval. In the present case, respondent society has to fulfil the requirement of owning and managing 300 beds hospital and details whereof shall be incorporated in the application as made under Section 10A(2) of the Act to the Central Government. The respondent has not till date fulfilled all the requirements which it is under an obligation to fulfil, on the date of making of the application. On the date of submission of the application, the respondent society did not own and possess a hospital of 300 beds apart from not having sufficient staff and enough clinical facilities." 43. The respondent has not till date fulfilled all the requirements which it is under an obligation to fulfil, on the date of making of the application. On the date of submission of the application, the respondent society did not own and possess a hospital of 300 beds apart from not having sufficient staff and enough clinical facilities." 43. It was a case where the Society had not fulfilled the requirements nor had allowed the Central Government or the MCI to conduct appropriate inspection, therefore the Apex Court had no option but to set aside the order made by the High Court and dismiss the writ petitions of the society. In that case the High Court lost sight of the fact that there was mere proposal from the respondent Society for grant of permission for establishing a new medical college and at that stage, examination of the claims for approval had not been made and the central Government had asked for proof relating to the ownership and management of 300 bedded hospital as also the required land and, therefore a letter was sent on 4.10.1996 by the central Government to the societ to submit proof in that regard to which there was no response till 17.2.199 Whereas there are no such circumstances rather in the present case, three inspections were allowed by the petitioner Trust & Institute to be conducted at the instance of the MCI Executive Committee team. The present case is not a case wanting pre-conditions laid down under section 10A of the MCI Act so as to disentitle the petitioner Trust for invoking deeming approval under section 10A(5) of the Act. Hence without disputing the dictum of law laid down by the Apex Court, suffice is to say that the decision in Azamgarh's case (supra) does not help the respondents herein in any way. 44. Now the decks are clear that Regulations framed under Sections 20 & 33 of the MCI Act are binding and covered by List I Entry 66 and the States cannot make rules and regulations under List III Entry 25 in conflict with these regulations because State's competence under List III Entry 25 is subject to standards of education laid down under the Act. Further power under section 20 of the MCI Act to prescribe minimum standards of PG medical education is not merely advisory in nature but Universities are bound to be guided by the standards prescribed in view of Articles 245, 246 and 254 of the Constitution of India. 45. Needless to lay much emphasis except to concisely state that establishing of a medical college and medical education therein are governed by the Indian Medical Council Act, 1956 (for short the MCI Act). Contrarily several persons and institutions indulged in establishing medical colleges without providing therein minimum necessary & proportionate infrastructure i.e. teaching and other facilities required for them which resulted in sharp decline in the maintenance of higher standard of medical education. That being so, to put restriction on mushroom growth of medical colleges and to maintain high standard of medical education, stringent provisions were brought in the MCI Act in the year 1993 by way of insertion of Sections 10A, 10B & 10C therein by amending Act No. 31/93. 46. Unless an institution can provide complete and full facilities for training to each student who is admitted in various discipline, the medical education would remain incomplete and the medical college could be turning out half baked doctors which, in turn, would adversely affect the health of public in general. I am fortified by the view taken by the Apex Court in K.S. Bhoir v. State of Maharashtra (supra) ( AIR 2002 SC 444 ) that the Medical Council can only make recommendations to the Central Government for grant of permission for one time intake capacity in seats only when it is satisfied that scheme to be submitted by the medical colleges fulfils all the requirements. True it is, unless such a scheme providing for all the requirements provided for in the MCI Act and the Regulations is submitted to the Central Government, and the Medical Council is satisfied that the scheme complies with all the requirement and makes a recommendation to that effect, only then the Central Govt. can consider for grant of permission and/or for increase of admission capacity in a medical college. In other words, the Central Government without compliance of the Act and the regulations cannot grant, without recommendation of the Medical Council, any permission. 47. Now let me advert as to what Section 10A of the MCI Act envisages. can consider for grant of permission and/or for increase of admission capacity in a medical college. In other words, the Central Government without compliance of the Act and the regulations cannot grant, without recommendation of the Medical Council, any permission. 47. Now let me advert as to what Section 10A of the MCI Act envisages. Section 10A seeks to achieve an object by prescribing in sub-section (1) that no person shall establish a medical college except with the previous permission of the Central Government obtained in accordance with provisions of the said section. Similar permission is required for obtaining a new or higher course of study of training or for increase in the admission capacity in any course of study of training in a medical college. 48. S.10A (2) requires that every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in the prescribed form, which has to be referred to the Medical Council for its recommendations. Under sub-section (3) the scheme is required to be considered by the Medical Council having regard to the factors referred to in sub-section (7), and Medical Council submits the scheme together with its recommendations thereon to the Central Government. Sub-section (4) empowers the Central Government, after considering the scheme and the recommendations of the Medical Council and after obtaining, if necessary, such other particulars as may be considered by it from the person or college concerned, and having regard to the factors referred to in sub- section (7), to either approve, with such conditions, if any, as it may consider necessary, or disapprove the scheme, and any such approval shall be permission under sub-section (1). 49. However, in the first proviso to sub-section (4), it is prescribed that no scheme shall be disapproved by the Central Government except after giving the person or college concerned reasonable opportunity of being heard. It is second proviso, it is laid down that even if a scheme has been disapproved, the same shall not prevent any person or medical college whose scheme has been disapproved, to submit a fresh scheme and the provisions of the section shall apply to such scheme as if such scheme has been submitted afresh. 50. It is second proviso, it is laid down that even if a scheme has been disapproved, the same shall not prevent any person or medical college whose scheme has been disapproved, to submit a fresh scheme and the provisions of the section shall apply to such scheme as if such scheme has been submitted afresh. 50. The factors required to be considered by the Medical Council and the Central Government under sub-section (7) include the capacity to offer the minimum standard of medical education as prescribed by the Central Government adequacy of financial resources, necessary facilities in respect of staff, equipments, accommodation, training, and other facilities to ensure proper functioning of the medical college, adequate hospital facilities, arrangement/programme drawn to impart proper training to students and the requirement of manpower in the field of practice of medicine. 51. Now comes the crucial provision in sub-section (5) of S, 10A of the MCI Act pertaining to deeming approval or permission. Under section 10A(5) the scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted and the permission of the Central Government required under sub-section (1) shall be deemed to have been granted where no order passed by the Central Government has been conveyed to the person or college within one year from the date of submission of the scheme to the Central Government under sub-section (2). 52. However, in computing the time limit specified in sub-section (5) the time taken by the person or college concerned who submitted the scheme, in furnishing the particulars called for by the council or by the Central Govt. shall be excluded, as is envisaged in sub-clause (b) of S.10A. 53. In exercise of the powers conferred by S.10A read with S.33 of the MCI Act the Medical Council of India with the previous sanction of the Central Government made the Establishment of Medical College Regulations, 1999 (for short Establishment Regulations) by its gazette notification dated 30th July, 1999. As per clause 2 of the Establishment Regulations, no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a Scheme annexed with these regulations. As per clause 2 of the Establishment Regulations, no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a Scheme annexed with these regulations. As per the Scheme annexed with these Regulations, all applications under this scheme shall be submitted to the Secretary to the Government of India Ministry of Health & Family Welfare from 1st August to 31st August (both days inclusive) of any year. Clause 1 of this Scheme lays down eligibility criteria as per which following organisations shall be eligible to apply in Form-1 for permission to set up a medical college,- (1) A State Government/Union Territory; (2) A University; (3) An autonomous body promoted by Central & State Government by or under a State for the purpose of medical education; (4) A society registered under the Societies Registration Act, 1860 (21 of 1860) or corresponding Acts in States; or (5) A public religious or charitable trust registered under the Trust Act, 1882 (2 of 1882) or the Wakfs Act, 1954 (29 of 1954). Clause 2 of the Scheme annexed with the Establishment Regulations lays down qualifying criteria and according to which the eligible persons shall qualify to apply for permission to establish a medical college if the following conditions are fulfilled : (1) that medical education is one of the objectives of the applicant in case the applicant is an autonomous body, registered society or charitable trust. (2) that a suitable single plot of land measuring not less than 25 acres is owned and possessed by the person or is possessed by the applicant by way of 99 years lease for the construction of the college. (3) that essentiality certificate in Form 2 regarding No objection of the State Government/Union Territory Administration for establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the counsel regulations, have been obtained by the person from the concerned State Government/Union Territory Administration. (4) that Concent of affiliation in Form 3 for the proposed medical college has been obtained by the applicant from a University. (5) that the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college. (6) that the person has not admitted students to the proposed medical college. (5) that the person owns and manages a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus of the proposed medical college. (6) that the person has not admitted students to the proposed medical college. (7) xxx xxx xxx (8) Opening of a medical college in hired or rented building shall not be permitted. The medical college shall be set up only on the plat of land earmarked for that purpose as indicated." 55. Clause 5 of the Scheme of the Establishment Regulations deals with Registration of the application referred by the Central Government. Clause 6 relates to evaluation by Medical Counsel of India and during evaluation of the application the Council may seek further information, clarification or additional documents from the applicant and shall carry out physical inspection to verify the information supplied by the applicant. Clause 7 enjoins a duty upon the Council to send its a factual report after examining the application & conducting necessary physical inspections to the Central Government and its report must contain the facts required to be stated as provided in sub-clause (1) to (8) of Clause 7 (a). Clause 7(b) provides for recommendation of the Council as to the issuance of Letter of Intent/number of seats per academic year/time bound programme for establishment of the college & expansion of the hospital facilities including pre- requirements as to the buildings, infrastructural facilities, medical & allied equipments, faculty and staff before admitting first batch of students, besides annual targets commensurating with intake of students in subsequent years. As pre-clause 7(c), in case of recommendation for not issuing letter of Intent the MIS is required to furnish to the Central Government- "(i) its reason for not granting the Central Government permission; & (ii) documents/facts on the basis of which the Council recommends the disapproval of the scheme. 56. Clause 7(d) prescribes for recommendation of the Council but in Form-4. Further upon being required by the Central Government the Council has also to reconsider the application and take into account new or additional information as may be forwarded by the Central Government and then submit its report in the same manner as prescribed for initial report. Clause 8 of the Scheme of the Establishment Regulations provides for grant of permission by the Central Government on the recommendation of the Council.57. Clause 8 of the Scheme of the Establishment Regulations provides for grant of permission by the Central Government on the recommendation of the Council.57. A close scrutiny of the aforesaid regulations makes it abundant that they neither contemplate nor require that the infrastructure for the entire MBBS course of four and half years should be made available at one time. The MCI while recommending and Central Government while approving or disapproving the scheme, should bear in mind the factors as clearly specified in clauses (a) to (f) of sub-section (7) of S.10A of the MCI Act, as elaborately analysed by me in earlier paras.58. In the instant case, it is not the case of any of the respondents either Medical Council of India or Central Government or the State Government that all the qualifying criteria laid down in C1.2 of the Establishment Regulations, are lacking. Conditions inter alia of medical education being one of objectives of the applicant College, single plot of land measuring not less than 25 acres owned & possessed by the applicant College, essentiality certificate and consent of affiliation in Forms 2 & 3 having been fulfilled by the petitioner Institute, are not disputed by any of the respondents. It is also not the case of the respondents that the petitioner Institute has admitted students to the proposed medical college as required in Clause (6) or that the proposed medical college is in hired or rented building. Only dispute is in respect of Clause (5) to some extent of lack of some infrastructural facilities. According to Clause (5) the applicant for proposed medical college must own and manage a hospital of not less than 300 beds with necessary infrastructural facilities capable of being developed into a teaching institution in the campus.59. Much emphasis was laid by the respondents that the MCI recommendation was the inference from "deficiencies in the staff and other infrastructure facilities" pointed out in the inspector's report. No doubt, MCI says that a medical college before sanction must have a building, staff, equipment etc. and also particular number of patients i.e. 350 beds with 80% occupancy and an OPD of 6 patients for one student. No doubt, MCI says that a medical college before sanction must have a building, staff, equipment etc. and also particular number of patients i.e. 350 beds with 80% occupancy and an OPD of 6 patients for one student. But in my considered view, once it is settled that permission under section 10A is granted initial) for one year nor the MCI require infrastructure for the entire MBBS course ofyfour and half years at one time, nor it is possible for a newly constructed building to have patients occupying prescribed beds, obviously because one can plan acquiring other equipment and even staff with money inasmuch as the patients come on their own after knowing reputation, which is completely slow process to gain. The ambitious owner would plan things by spending first instalment on the hospital and its staff and naturally, it would give him time to get patients and meanwhile infrastructure for the college would come up. Doing all things at a time with no signal from the MCI makes it difficult for the management to adhere to such a requirement at one go.60. It is admitted case of both the parties that the scheme of the petitioner Trust & Institute to establish a private medical college in question under section 10A(1) was referred to by the Central Government under section 10A(2) to the Medical Council of India, and thereupon the scheme in question was considered by the MCI under section 10A(3) having regard to the factors as envisaged in Section 10A(7) and in that process, two inspections one on 30-31.3.2001 and another on 24-25.9.2001 were carried out. Once second inspection was carried out by the inspectors team of the MCI on 24-25.9.2001 followed by its compliance-cum-verification report at the instance of the petitioner Trust for the College in question on or about 1.10.2001, I do not think it proper at this stage to go through or discuss 1st inspection report and would like to only browse through the 2nd inspection report but would also restrain from any judicial review thereof.61. Schedule (for receipt of applications for establishment of new medical college and processing of the applications by the Central Government and the Medical Council of India) attached to the Establishment Regulations prescribes last dates for stages of processing and as per this Schedule, it appears that legislative intent & object to envisage one year's process of application & scheme for establishment of new medical college was to evade manipulations at the instance of recommending authority. Accordin to this schedule after receipt of the scheme by the MCI upon having been referred to by the Central Government before 30th September, the MCI should send recommendations on or before 31st December to the Central Government for issue of letter of intent which the Central Government has to issue before 31st January and pursuant to letter of intent the applicant has to reply to the Central Government requesting for letter of permission before 28th February and thereupon the Central Government is required before 15th March to refer this letter of request of the application for permission to the MCI for consideration for issue of letter of permission. 15th June is last date for the MCI to recommend for issue of letter of permission. 15th July is the last date of issue of letter of permission by the Central Government.62. Note (1) appended to the Schedule (supra) prescribing stage of processing & its last date makes it clear that the information given by the applicant in Part I of the application for setting up a medical college i.e. information regarding organisation, basic infrastructural facilities, managerial and financial capabilities of the applicant shall be scrutinised by the Medical Council of India through an inspection and thereafter the Council may recommend issue of Letter of Intent by the Central Government.63. Form 4 attached to the Establishment Regulations prescribes as to in what format the MCI has to make recommendation. As per Para 2 of this Form 4 the decision of the Executive Committee is also required to be approved and placed before the General Body. Para 3 of Form 4 states the factors referred to in S.10A(7) of the Act. Last clause (vii) to S.10A(7) & para 3 of Form 4 states as to whether deficiencies if any in the infrastructure or faculty are remediable or not. Para 3 of Form 4 states the factors referred to in S.10A(7) of the Act. Last clause (vii) to S.10A(7) & para 3 of Form 4 states as to whether deficiencies if any in the infrastructure or faculty are remediable or not. Thus if factors referred to in Clause (a) to (f) to S.10A(7) in the inspection report or the conclusions of the MCI are found favour with the applicant concerned, then merely on the basis of deficiencies if any in the infrastructure or faculty, the permission cannot be withheld obviously because of the legislative intent & object the MCI has also to consider as to whether such deficiencies in the infrastructure or faculty are remediable or not and if such deficiencies are remediable then I am of the considered view that the permission could have been granted in favour of the applicant for setting up a private medical college subject to the condition of such deficiencies being remedied out.64. As noticed by the Division Bench of the Delhi High Court in Union of India v. Harish Bhalla and Dr. Ketan Desai Vs Harish Bhalla (LPA No. 299 & 301/2001 decided on November 23, 2001) , large scale bungling in admission to medical colleges and misuse of statutory powers conferred upon the Medical Council of India, is renownly highlighted and found to have been proved, and that being so, the Delhi High Court observed that Dr. Ketan Desai has manipulated the Medical Council of India affairs in a manner that he is having a complete hold over all such powers; and minutes of the Executive Committee meeting show that the Executive committee which is supposed to exercise such powers on behalf of the Medical Council of India, leaves all the decisions totally to the President who in turn is using his position to make illegal monetary gains out of this and that the role of the Central Government in this connection has been rendered illusory. Not a single case has been cited where the Government differed with the Medical Council of India recommendation. Their Lordships of the Division Bench observed as under : "Through his manipulations respondent No. 3 has reduced the Medical Council to a farce. Not a single case has been cited where the Government differed with the Medical Council of India recommendation. Their Lordships of the Division Bench observed as under : "Through his manipulations respondent No. 3 has reduced the Medical Council to a farce. Serious issues requiring independent consideration about recognition to be given to the medical college throughout the country are listed in the agenda of the Executive Committee meetings and are disposed of by one line resolutions leaving the matter to the President. It was argued that the Medical Council only makes recommendations to the Central Government and the final say in the matter is that of the Central Government. Not a single instance was pointed out where the Central Government did not agree of differed with the recommendations of the Medical Council. This lends credence to the allegation of the petitioner that through his money power respondent No. 3 is manipulating things at every stage." 65. Their Lordships further observed:- "This results in institutions being controlled by undeserving persons. Question before us now is that should we overlook what is happening in the Medical Council of India and allow things to continue as it is even when we are convinced that respondent No. 3 who is at the helm of affairs in the Medical Council of India is indulging in large scale corruption and misusing his office for making illegal monetary gains ? In our view the court cannot be a mute spectator in such a situation. We cannot allow an unscrupulous and corrupt person to function as President of the Medical Council of India." 66. After this verdict, it could not have been denied that all major decisions regarding grant of affiliation to new medical colleges, recognition or withdrawal of recognition to medical colleges, regulation of number of seats in medical colleges, appointment of examiners for conducting examinations, appointment of teams of inspectors etc. were being kept by Dr. Ketan Desai within his control so as to be minting money running into crores of rupees by manipulating decisions. That being so, the inspectors who are appointed, have been generally retired teachers from medical colleges and these inspectors are sent by the Medical Council to gather first hand information before making its recommendations and therefore, the choice of inspectors is very significant because their report forms basis and influence final decision/recommendation of the council. That being so, the inspectors who are appointed, have been generally retired teachers from medical colleges and these inspectors are sent by the Medical Council to gather first hand information before making its recommendations and therefore, the choice of inspectors is very significant because their report forms basis and influence final decision/recommendation of the council. As rightly observed by the Division Bench of the Delhi High Court in aforesaid case of Union of India Vs Harish Bhalla, inspections for recommendations by MCI to the Central Government are relevant to (1) to give permission for opening of the medical college (letter of intent); (2) to give permission for starting admissions (letter of permission); (3) to give yearly renewal permission for admitting fresh batch of students to MBBS course for consecutive 5 years; (4) to recognise the MBBS course for consecutive 5 years; (4) to recognise the MBBS degree to be awarded to the first batch of admitted students after their final year i.e. 5th year examination; (5) to reinspect whether deficiencies pointed out during early inspection which resulted in refusal of recommendation of permission or recognition are rectified for compliance verification report in case the college claims removal of deficiencies; (6) every year to check new admissions to MBBS, whether within sanctioned capacity and whether sanctioned percentage under different categories as per Supreme Court guidelines e.g. 15% NRI quota are being maintained; (7) whether the clinical data as presented by the college and hospital is genuine or signed by college hospital authorities under compulsion - dictates of their employer i.e. management.67. Since the inspectors being retired teachers are appointed by the President of Council, they are obliged to the President for their job and in case the inspection report is adverse to the college concerned, the college seeks reinspection after removing the objections and thus reinspection becomes very important. Hence it all depends on the inspectors as to what report they give because there is no other independent check. The-inspectors can ill-afford not to follow instructions of the MCI President for fear of losing their job. I am also fortified by the decision of the Division Bench that unfortunately institutions meant to improve professional standards are passing into hands of unscrupulous persons. The-inspectors can ill-afford not to follow instructions of the MCI President for fear of losing their job. I am also fortified by the decision of the Division Bench that unfortunately institutions meant to improve professional standards are passing into hands of unscrupulous persons. A stage has come when on account of politcking and manipulative tactics of such persons in institutions meant to maintain professional standards, no good or eminent person with stature wants to serve such institutions.68. I have carefully examined the record in respect of the Scheme of the petitioner Trust & Institute for setting up a private medical college in question, consisting of inspection reports and letters of the MCI for recommendation under section 10A of the Act either for reffering the matter back or recommending for not issuing letter of intent or disapproving the scheme in question. Upon a careful look at the record I find that the manner in which the deficiencies have been pointed out from time to time, each time the old deficiencies were stated to have been removed, new deficiencies were shown, raises an impression to draw adverse inference against the recommending authority - functioning whereof has already been put to question mark by the Division Bench of the Delhi High Court, that the permission is unnecessarily delayed. For removal of deficiencies pointed out in the inspection reports, a compliance affidavit as also report besides complaint against the MCI officials, was filed. Moreover, the deficiencies have been substantially complied with albeit its disputed by the MCI in counter in these petitions but even otherwise as per Establishment Regulations & Form 4 thereto the MCI has failed to point out as to whether disputed deficiencies pointed out by its inspection team are remediable or not, therefore, in my considered view, at the worst, such deficiencies, if they exist, shall be taken care of by the petitioner Institute, but these are not such as to permit withholding of the permission to which the petitioner Institute is entitled. For taking* such further steps, the grant of permission need not wait, inasmuch as it is impractical to insist, for foolproof or absolute adherence to all requirements without regard to their importance or relevance for the purpose of imparting education, in a practical way. For taking* such further steps, the grant of permission need not wait, inasmuch as it is impractical to insist, for foolproof or absolute adherence to all requirements without regard to their importance or relevance for the purpose of imparting education, in a practical way. I am conscious of the fact that in the matter of permission, it is ordinarily for the Central Government after consulating the Medical Council of India to arrive at a decision. It is trite that if it is found that the permission is being withheld unreasonably or the decision is being prolonged for one reason or the other, this Court would though reluctantly, be constrained to exercise jurisdiction under Article 226 of the Constitution and it does not mean that the importance of fulfiling essential prerequisite set by the medical council for granting permission is to be diluted.69. The decision of the Executive Committee which too did not get approved by the General Body, not recommend for permission shows that the factors referred to in S.10A(7) were not considered. The inspection reports in so far as the first year of the course is concerned, cannot be said to contain any deficiencies at all and in regard to the facilities for subsequent years the requirement of the scheme is not that at one time all the facilities should be made available . As already analysed above, the MCI was swayed by only one consideration that there are deficiencies in staff and other infrastructure facilities without applying its mind as to the nature of deficiencies. The MCI failed to apply mind as to other factors rather they have not been disputed on record, as to whether there is a time bound programme and whether really there are deficiencies at all for granting initial permission for one year, and whether the preliminary requirements for admitting the first batch of students have been met as warranted by the scheme did not engage the intention of the MCI or its executive committee; at any rate it is difficult to discern the same from resolution of the Executive Committee or reports or correspondence referred to during the course of hearing. I must also reiterate that the medical council of India being a statutory body its discretion is circumscribed by the authority granted by the Statute. I must also reiterate that the medical council of India being a statutory body its discretion is circumscribed by the authority granted by the Statute. The inspecting team or executive committee of the MCI reached the conclusion totally contradicted by the factors referred to in S.10A(7). It is therefore a case of total misdirection as to the entire gamut of fact situation.70. The prescription of one year under section 10A(5) and contemplation of stage of processing with last date thereof under Schedule to the Establishment Regulations, 1999 shows the legislative intent and object to evade manipulations at the instance of the recommending authority like the MCI and its officials whose manner of functioning has already been questioned by the courts of law, rather legislative intent to further provide in proviso to Section 10A(4) that even if a scheme has been disapproved, it shall not prevent any person or medical college whose scheme has been disapproved, to submit a fresh scheme and thereby provisions of S.10A shall apply to such scheme as if such scheme has been submitted afresh, makes it crystal that the Central Government and the Recommending authority (MCI) have to act with all promptitude before expiry of one year schedule by conveying its decision or order either of grant of permission or disapproving the scheme of the incumbent of the scheme to set up private medical college, otherwise such a scheme shall be deemed to have been approved by the Central Government in the form. The purpose of prescription of one year and stage of processing with last date within this span of one year as envisaged in S.10A(5) and Schedule to the Establishment Regulations, 1999 is obvious because as per the MCI Admission Regulations, 1994 and the relevant admission Ordinance of the University concerned the academic session should commence from August of each year and that being so, as per clause (vi) of Training Period & Time Distribution/Duration of the Course, prescribed in Ord. 272 of the University of Rajasthan, the Universities shall organise admission timings and admission process in such a way that teaching in first semester starts by 1st of August each year.71. 272 of the University of Rajasthan, the Universities shall organise admission timings and admission process in such a way that teaching in first semester starts by 1st of August each year.71. But in the instant case, as noticed above, there has been unreasonable withholding or prolongation of grant of permission or even communication of the decision for disapproving the scheme as against the petitioner Institute has seen light of the day so as to enable it to invoke second proviso to S.10A(4) of the MCI Act for submission of fresh scheme. Had there been legislative intent as put by the respondents herein in respect of interpretation of deeming approval provision of S.10A(5) of the MCI Act, viz. provisions of Section 10A(5) gets invoked only where the applicant of the scheme successfully demonstrates and establishes on the date of making and application under section 10A that all necessary conditions in relation to teaching, infrastructural and other facilities have been fulfilled by the applicant, then what is the necessity for the Central Government to refer the scheme for consideration to the MCI for its scrutiny and why the legislature has made provision prescribing one year for processing of the scheme? Prescription of one year for processing is not for the recommending authority to consider or examine the scheme. The MCI has indulged in manipulations by making one after other inspections pointing out fresh deficiencies each time and the manner of processing the scheme by such consecutive inspections shows their ill motivation with a view to unreasonably prolong or by withholding permission. Prolongation of recommendation on the part of the MCI on the assertions of alleged deficiencies in the infrastructure of the staff or faculty or otherwise being not inconformity with the MCI standards and above all an act of mere silent spectator on the part of the Central Government for not arriving at a final decision on the scheme of the petitioner Institute before the prescribed last date to convey permission or disapproval of the scheme, has resulted in deprivation of the petitioner Institute statutory legal right to invoke second proviso to S.10A(4) for submission of fresh scheme in August, itself.72. As regards exclusion of time taken by the petitioner Trust in furnishing desired essentiality certificate and letter of consent of affiliating University which were not furnished in prescribed format alongwith original scheme as notified in Central Govt. As regards exclusion of time taken by the petitioner Trust in furnishing desired essentiality certificate and letter of consent of affiliating University which were not furnished in prescribed format alongwith original scheme as notified in Central Govt. letter dated 13.10.2000 (Ann.1), it is not in dispute that the desired documents, referred to in letter dated 13.10.2000 (Ann.1) were received by the Central Govt. alongwith letter of the petitioner Trust sent on 9.12.2000 (Ann.6) and only upon receipt of these desired documents, the Central Govt. had referred the scheme to the MCI for its consideration. Even as per note stated in the letter dated 13.10.2000 (Ann.1), the counting of period under section 10A(5) would admittedly start from the date of receipt of the wanting documents, i.e. 9.12.2000. The MCI has not called for furnishing particulars. The deficiencies do not mean "particulars" as envisaged in S.10A(6) and "particulars" mean information lacking in the application for scheme under section 10A(2)(b) but not tantamount to the deficiency in the infrastructural facilities having regard to the factors referred to in S.10A(7).73. In view of what I have taken as to the legal infirmities afflicting the recommendation of the Executive Committee of the Medical Council of India, which formed the foundation for the Central Government to prolong the request of the petitioner Trust to set up a private medical college under the impugned scheme, I have no option except to hold that the petitioner is entitled to invoke provisions of S.10A(5) for deeming approval and permission for the impugned scheme to establish private medical college. As a legal corollary thereto, the petitioner Trust is entitled to request for admission of 150 intake students as per essentiality certificate given by the State Government.74. This leads me to browse through the provisions contained in Ordinance 272 of the University, firstly I must quote hereinbelow relevant provisions incorporated by the University in its Ord. 272 by Notification No. 9 of the respondent University. Clause IIA newly added to Ord. 272 under heading "Admissions in MBBS Course at Private Medical Colleges" read as under : IIA. As and when the Private medical Colleges are permitted by Central Government/Medical Council of India/State Government and affiliated with the University of Rajasthan:- (1) Total number of seats in each such private medical colleges shall be as sanctioned to each of them by the Medical Council of India/Central Government. As and when the Private medical Colleges are permitted by Central Government/Medical Council of India/State Government and affiliated with the University of Rajasthan:- (1) Total number of seats in each such private medical colleges shall be as sanctioned to each of them by the Medical Council of India/Central Government. (2) 15% seats - NRI seats, 50% free seats, and 35% payment seats out of total sanctioned seats. (3) NRI seats are to be filled at respective college levels. (4) Free and payment seats are to be filled by the UG admission Board on merit cum priority from the successful candidates of RPMT. (5) Reservations on free seats of 16%, 12% and 21% for SC/ST/OBC respectively. The percentage of Girl candidates shall not fall below 25% out of the aforesaid reserved seats in each category of free seats including the Girl candidates admitted in the General category of free seats. (6) There is no reservation on payment seats and are to be filled by the Central UG admission Board on merit cum priority from the successful candidates of RPMT. (7) Fee structure for free/merit and payment seats in private medical colleges will be as notified by the State Government in view of letter No.MCI-34(41)2000-Med/dated 30.12.2000." 75. A careful look at the provisions contained in Ord. 272-V of the University, its clause (iii) provides that interview and allotment of the College will be done within three weeks of declaration of the result of State Pre Medical Test. The result of State Pre Medical Test 2001 held in between 21st to 24th May, 2001 (relevant for the present controversy) was declared on 15.07.2001. And according to clause (iii), ibid, interview & allotment of the College would have commenced within three weeks after 15.07.2001 (date of result of PMT 2001) but curiously enough notification was issued on 09.8.2001 notifying counselling dates in between 27th to 31st August, 2001 and pursuant thereto, first counselling (meant for allotment of college) took place for RPMT 2001 in between 27th to 31st August, 2001. It is reiterated that in case of the petitioners Institute till first counselling took place or its notification was issued, no permission under section 10A of the MCI Act had ever been issued.76. According to clause (ix) of Ord. It is reiterated that in case of the petitioners Institute till first counselling took place or its notification was issued, no permission under section 10A of the MCI Act had ever been issued.76. According to clause (ix) of Ord. 272-V of the University there is also provision that in case of there remaining vacancy due to non-joining of the allotted candidates within stipulated time, it is an obligation upon the medical college to submit vacancy position within four weeks of allotment of college.77. First counselling is required to be done initially at the time of admission & selection process by way of first interview and allotment as provided under clause (iii) of Ord. 272-V of the University within three weeks of declaration of the result of the State Pre Medical Test. Second counselling is necessitated only when there remains vacancy due to non-joining of the dilotted candidates within stipulated time and for which process starts only when the College concerned submits (within four weeks of allotment of college) vacancy position due to non-joining of the allotted candidates. Thus question of second counselling arises only upon having vacancy remained unfilled due to non-joining of the allotted college within stipulated time, and in other words such 2nd counselling is in the nature of reallotment of vacancies being done by the UG Admission Board on interview of the candidates within 14 days of last date of submitting the vacancy position as envisaged under clauses (ix) & (x) of Ord. 272-V of the University. No doubt for the RPMT 2001, three counsellings have taken place but as analysed above it had occasioned in exceptional circumstance having arisen out of belated permission granted by the Central Government in favour of the first private medical college (MGNIMS) at the time of the commencement of first counselling in between 27th to 31st August, 2001.78. However, even as per newly added para (clause (xi) to Ord. 272-V of the University, quoted above) the candidate is entitled for reappointment/ reshuffling only if he has joined & continued the allotted courses & college. But reappointment/reshuffling is to take place only after the students joined & continued allotted course & college, meaning thereby its counselling takes place only after first allotment & interview after declaration of PMT result. Again, after reallotment/reshuffle as per Clause (x) to Ord. But reappointment/reshuffling is to take place only after the students joined & continued allotted course & college, meaning thereby its counselling takes place only after first allotment & interview after declaration of PMT result. Again, after reallotment/reshuffle as per Clause (x) to Ord. 272-V, if the resultant vacancies or such vacancies which could not be filled by reallotment, occasion then such resultant vacancies are required to be filled as envisaged in clause (xii) to Ord. 272-V, by taking the candidates from remaining merit list of successful candidates of RPMT list on merit cum preference, for which the candidate is required to give his name for waiting list for any vacancies to be created in future. Above all, as per specific provision contemplated in Clause (xii) to Ord. 272-V, no admission shall be given after three months from the date of initial selection even if any vacancy occurs later on.79. Concomitantly, admission procedure is provided in Clause 5 of Admission Regulations 1994 (Ann.2) (under which according to the petitioners Institute, Private Medical Colleges are governed because Ord. 272 of the University is regpunant to Central Legislation - Admission Regulations 1994). Undisputably, the Admission Regulations, 1994 under its Clause 2 (which relates to applicability) are contemplated only for its application to cover the MBBS course imparted by : (a) Medical colleges established under/or run by private educational institutions; and (b) such other medical colleges to which these regulations are made applicable by the Government, recognising and/or affiliating authority. In view of this applicability clause 2 of the Admission Regulations, 1994, it is an admitted case of the petitioners Institute, itself that the petitioners Institute being private medical college is governed only by the Admission Regulations 1994 and thereby such Admission Regulations 1994 make it crystal that only the competent authority shall prepare a merit list on the basis of common entrance examination from amongst the successful candidates where common entrance examination is held, as provided in clause 5(d) of the Admission Regulations, 1994. However, I must point out that no specific provision is made as to how a merit list is to be prepared under clause 5(d) of the Admission Regulations, 1994, for which the competent authority (in the present case is UG Admission Board) may take guidance from Ord. 272 of the University. However, I must point out that no specific provision is made as to how a merit list is to be prepared under clause 5(d) of the Admission Regulations, 1994, for which the competent authority (in the present case is UG Admission Board) may take guidance from Ord. 272 of the University. Be that as it may, admission procedure (Clause 5) and allotment of seats (Clause 7) do not envisage 2nd counselling and contrarily as per State legislation viz. Ord. 272 of the University two counsellings are contemplated as analysed above. Hence in my considered view duly fortified from the view taken in the decision of the Constitutional Bench of Apex Court in Dr. Preeti Srivastava v. State of MP ( 1999(7) SCC 120 ) (supra) under Article 254 of the Constitution conditions of admission & criteria laid down by the Union of India as per gazette notification of 21.12.1994 (Admission Regulations 1994) would govern to the extent of repugnance with Ord. 272 of the University and therefore, as provided in clause 7(d) (which deals with allotment of seats) of Admission Regulations, 1994, the competent authority (UG Admission Board) shall also prepare and publish a waiting list of candidates alongwith the marks so that such a waiting list may be followed after last date of allotment is over for filling any casual vacancies or "drop-out" vacancies arising after the admissions are finalised, but it is also made clear that such casual vacancies or "drop-out" vacancies having arisen after finalisation of the admission shall be filled till such a date as may be prescribed by the competent authority (UG admission Board). Only thereafter (i.e. after such date prescribed by the competent authority under clause 7(d), ibid), if any vacancies (i.e. casual vacancies & drop out vacancies having arisen after finalisation of admission) still remain then that vacancy shall be filled by the Management of the Private Medical College but not before such prescribed date under Clause 7(d) of the Admission Regulations, 1994.80. As analysed above, once it is crystal stand having been taken by the petitioners Institute in the light of the decision of Constitutional Bench of the Apex Court in Dr. As analysed above, once it is crystal stand having been taken by the petitioners Institute in the light of the decision of Constitutional Bench of the Apex Court in Dr. Preeti Srivastava v. State of M.P. (supra) in the context of Private Medical College Admission Regulations, 1994 that admission criteria as laid down by the Union of India in its Gazette notification of 21.12.1994 (Admission Regulations 1994) (Ann.2) would govern to the extent of repugnance with Ord. 272 of the University, I have no option except to grant relief in that regard only applying these Regulations, 1994 for allotment of seats and admission of students because the petitioners Institute is a private medical college.81. I am also conscious of the fact that 30th November, 2001 being the cut off date for finalising the admission has expired during the pendency of the present case. That being so, theory of lis pendens as in maxim pendente lite nihil innovetur i.e. riding the suite nothing can be changed, would apply. Accordingly cut off date as well as other last dates for enrolment and registration with the University or other competent authority for admission of 150 intake students to be allotted to the petitioner Institute for ensuing examination 2001-02 of 1st year MBBS course (of RPMT 2001) shall automatically be extended in accordance with University Ordinance and MCI regulations so also in the light of direction given by this Court referred to hereinabove and below.82. However, it is made clear that students allotted to the petitioners Institute (intake of 150 students) will not be entitled to appear in ensuing examination until they complete the prescribed minimum period of studies and that this will not give any right to the students or the college to claim credit for the period prior to the date on which the deemed permission under section 10A(5) has accrued to the medical college of the petitioners Trust & Institute. It is further made clear that rant of deemed permission under section 10A(5) in favour of the petitioners by virtue of this judgment does not mean that all other infrastructure requirements under the Establishment Regulations, 1999 are/or will not be complied with and therefore the petitioners Trust and Institute would see that deficiencies in the infrastructure, staff or faculty which are remediable as ensured during the course of hearing by Mr. Shah are removed and such infrastructural requirement if any, lacking, are remedied and complied with forthwith before applying for renewal of deemed permission and the renewal of deemed permission for subsequent academic years will be in accordance with MCI regulations and this order will not prevent competent authority to act upon thereunder.83. As a result of the discussion made above, these two writ petitions are allowed to the extent that a writ be issued directing the respondents (Union of India, MCI, State Government & University of Rajasthan) : (1) that the permission of the Central Government required under sub-section (1) of S.10A of the MCI Act in respect of the scheme presented by the Indian Medical Trust (petitioner No.1) for establishing medical college in the name & style of National Institute of Medical Sciences (petitioner No.2) shall be deemed to have been granted in favour of the petitioner Trust & Institute by virtue of S.10A(5) of the MCI Act for intake of 150 students as disclosed in the essentiality certificate issued by the State Government on 13.11.2000 (Ann.5) & as per consent (Ann.6) of affiliating University (respondent) given on 9.12.2000; (2) thereby the students who have been admitted to this College of the petitioner Institute under NRI quota 15% as provided in clause 9(b) of the MCI Admission Regulations, 1994 after expiry of one year as provided in S.10A(5) of the Act, as analysed above, shall stand allotted to the first year MBBS course of that petitioner college and the 1st MBBS course will commence therefrom; (3) that as regards rest of intake students excluding aforesaid NRI quota, (viz. 50% and remaining 35% of intake students (150) as against free & payments respectively) shall be allotted to the petitioner Institute medical college by the competent authority (Central UG Admission Board for the RMPT 2001) (respondent No. 2 Convener & Principal SMS Medical College) by preparing a merit list on the basis of RMPT 2001 from amongst the successful candidates as provided in C1.5(d) so also by preparing waiting list simultaneously for being followed after the last date for allotment for casual vacancies or drop out vacancies arising after the admissions for the petitioner College are finalised by notifying its date as provided in C1.7(d) of the MCI Admission Regulations, 1994 applicable to private medical colleges; and thereafter no further admissions will be allotted to the first batch of MBBS course of petitioner College except of vacancies arising from any of the students now allotted or refusing to pursue their studies further, that too by invoking exercise as provided in C1.5(d) & C1.7(d) as also C1.9(b) of MCI Admission Regulations, 1994. (4) that all exercise for admission and allotment to the free & payment seats to the petitioner College shall be completed by the respondent No. 2 Convener of the Admission Board in accordance with MCI Admission Regulations & Ord.272-IIA & 272-V of the University so also in the light of observations made above within one and half months by issuing only one counselling notification so that the academic session should start within two weeks of allotment of college so as to enable the allotted students to appear in the ensuing examination of 2001-02, for which the petitioner College may carry on extra classes for teaching the students for completion of entire course of 1st year MBBS in the intervening period to ensuing examination as soon as the allotted students join the college, otherwise the students will not be entitled to appear in the ensuing examination until they complete the prescribed minimum period of studies as provided in the relevant University Ordinance; and (5) as regards renewal of this deemed permission for subsequent academic years if applied for by the petitioner Trust & Institute, the respondents Central Government, Medical Council of India, State Government & University of Rajasthan shall be flee to act in accordance with MCI Act, Regulation 8(3) or any other provisions of the Establishment Regulations, 1999, Admission Regulations, 1994 and relevant University Ordinances, in letter & spirit. A certified copy of this judgment be sent to the Chief Secretary for compliance in letter & spirit. No order as to costs. Petition allowed. *******