Dr. Somervel Memorial CSI Medical College & Hospital, Karakonam v. Union of India, Medical Council of India, Commissioner for Entrance Examinations

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **WP(C).No. 22504 of 2018** ## **PETITIONER(S)** **PRINCIPAL** **DR. SOMERVEL MEMORIAL CSI MEDICAL COLLEGE & HOSPITAL, KARAKONAM P.O., THIRUVANANTHAPURAM - 695 504.** **BY ADVS.SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENT(S):** **1. UNION OF INDIA REPRESENTED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE, DEPARTMENT OF HEALTH, A WING, NIRMAL BHAVAN, MAULANA AZAD ROAD, NEW DELHI - 110 011.** **2. THE MEDICAL COUNCIL OF INDIA REPRESENTED BY THE SECRETARY, POCKET - 14, SECTOR 8, DWARAKA PHASE - I, NEW DELHI - 110 077.** ## **3. COMMISSIONER FOR ENTRANCE EXAMINATIONS** **OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM - 695 001.** **R2 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA R1 BY ADV. SRI.B.PREM KUMAR, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY GOVERNMENT PLEADER SRI.M.A.ASIF (SPL.GP TO ADDL.AG)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-07-2018,THE COURT ON 23-07-2018 DELIVERED THE FOLLOWING:** **WP(C).No. 22504 of 2018 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE LETTER OF PERMISSION DATED 13.11.2002 BY 1ST RESPONDENT. EXHIBIT P2. TRUE COPY OF RENEWAL OF PERMISSION DATED 10.07.2003 FOR THE ACADEMIC YEAR 2003-2004. EXHIBIT P3. TRUE COPY OF RENEWAL OF PERMISSION DATED 24.06.2004 FOR THE ACADEMIC YEAR 2004-2005. EXHIBIT P4. TRUE COPY OF THE RENEWAL OF PERMISSION DATED 01.07.2005 FOR THE ACADEMIC YEAR 2005-2006. EXHIBIT P5. TRUE COPY OF THE RENEWAL OF PERMISSION DATED 22.06.2006 FOR THE ACADEMIC YEAR 2006-2007. EXHIBIT P6. TRUE COPY OF THE RENEWAL OF PERMISSION DATED 29.06.2007 FOR THE ACADEMIC YEAR 2007-2008. EXHIBIT P7. TRUE COPY OF THE RENEWAL OF PERMISSION DATED 25.07.2008 FOR THE ACADEMIC YEAR 2008-2009. EXHIBIT P8. TRUE COPY OF THE NOTIFICATION DATED 17.03.2009 GRANTING RECOGNITION FOR THE COLLEGE UNDER SECTION 11(2) OF THE ACT. EXHIBIT P9. TRUE COPY OF THE LETTER OF PERMISSION DATED 20.08.2016 FOR INCREASE OF INTAKE CAPACITY FROM 100 TO 150 FOR THE ACADEMIC YEAR 2016-2017. EXHIBIT P10. TRUE COPY OF THE RENEWAL OF PERMISSION DATED 18.05.2017 FOR INCREASE OF INTAKE CAPACITY FROM 100 TO 150. EXHIBIT P11. TRUE COPY OF THE NOTICE DATED 06.01.2018 BY 2ND RESPONDENT. EXHIBIT P12. TRUE COPY OF THE EXPLANATION DATED 31.01.2018 WITH COMPLIANCE REPORT BEFORE THE 2ND RESPONDENT. EXHIBIT P13. TRUE COPY OF THE ORDER DATED 20.04.2018 BY 2ND RESPONDENT. EXHIBIT P14. TRUE COPY OF THE STATEMENT DATED 17.05.2018 BY RECTIFYING THE DEFICIENCIES NOTED IN EXHIBIT P13 BY THE COLLEGE.** **EXHIBIT P14(A). TRUE COPY OF THE DEMAND DRAFT DATED 16.05.2018 TO A TUNE OF RS.3,54,000/-. EXHIBIT P15. TRUE COPY OF THE ORDER DATED 31.05.2018 BY 1ST RESPONDENT DECLINING RENEWAL OF PERMISSION FOR INCREASED INTAKE CAPACITY FROM 100 TO 150 FOR THE ACADEMIC YEAR 2018-2019.** **WPC 22504/2018** **-2-** **EXHIBIT P16. TRUE COPY OF THE ASSESSMENT REPORT DATED 07.01.2017 FOR ALL THE 11 POSTGRADUATE COURSES IN THE ASSESSMENT CONDUCTED ON 06.01.2017 FOR THE ACADEMIC YEAR 2017-2018. EXHIBIT P17. TRUE COPY OF THE ASSESSMENT REPORT DATED 05.10.2017 FOR THE POSTGRADUATE COURSES OF OPHTHALMOLOGY IN THE ASSESSMENT CONDUCTED ON 05.10.2017 FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P18. TRUE COPY OF THE ASSESSMENT REPORT DATED 05.02.2018 FOR THE POSTGRADUATE COURSE OF PAEDIATRICS IN THE ASSESSMENT CONDUCTED ON 05.02.2018 FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P19. TRUE COPY OF THE ASSESSMENT REPORT DATED 19.02.2018 FOR THE POSTGRADUATE COURSE OF OBSTETRICS AND GYNAECOLOGY IN THE ASSESSMENT CONDUCTED ON 19.02.2018 FOR THE ACADEMIC YEAR 2018-2019. EXHIBIT P20. TRUE COPY OF THE COMMUNICATION DATED 04.02.2018 RECEIVED FROM 1ST RESPONDENT AS REGARD GRANT OF RECOGNITION FOR MS (OPHTHAMOLOGY). EXHIBIT 21. TRUE COPY OF THE COMMUNICATION DATED 12.04.2018 AS REGARD GRANT OF RECOGNITION FOR MD (PADEIATRICS) FOR THE COLLEGE OF PETITIONER FROM 2ND RESPONDENT TO 1ST RESPONDENT. EXHIBIT P22. TRUE COPY OF THE COMMUNICATION DATED 17.04.2018 AS REGARD GRANT OF RECOGNITION FOR MS (OBSTETRICS & GYNAECOLOGY) FOR THE COLLEGE OF PETITIONER FROM 2ND RESPONDENT TO 1ST RESPONDENT.** **EXTS.OF R2 EXT.R2(a): TRUE COPY OF MCI LETTER DATED 23.6.2017. EXT.R2(b): TRUE COPY OF MCI LETTER DATED 6.1.2018 EXT.R2(c): TRUE COPY OF MCI ANOTHER LETTER DATED 6.1.2018. EXT.R2(d): TRUE COPY OF MCI LETTER ANOTHER DATED 20.4.2018. EXT.R2(e): TRUE COPY OF CENTRAL GOVT. LETTER DATED 31.5.2018.** **EXT.R2(f): TRUE COPY OF JUDGMENT DATED 1.6.2018 PASSED BY THE HON'BLE APEX COURT IN AN IDENTICAL MATTER IN CIVIL APPEAL NO.5805/2018-MEDICAL COUNCIL OF INDIA VS. VEDANTAA INSTITUTE OF ACADEMIC EXCELLENCE PVT. LTD. & OTHERS.** **EXT.R2(g): TRUE COPY OF ORDER DATED 23.4.2018 PASSED BY THE HON'BLE DELHI HIGH COURT IN WPC NO.2916/2018-NIMRA EDUCATIONAL SOCIETY AND ANOTHER V. UOI & ANR.** ## **Rp** **//True Copy//** **PS to Judge** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== WP(C) No. 22504 of 2018 ==================== Dated this, the 23[rd] day of July, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This writ petition is filed by the Principal of a Medical College challenging Exts.P13 and P15 by which a request for renewal of permission for the increased intake of students from 100 to 150 seats for the academic year 2018-2010 has been rejected. 2. The short facts that arise for consideration are as under:- The petitioner college had been granted permission for annual intake of 100 students from the academic year 2002-03 onwards and permission was being renewed from time to time. The college also had been granted recognition u/s 11(2) of the Indian Medical Council Act as per notification dated 17/3/2009. During the academic year 2016-17, letter of permission has been granted on 20/8/2016 (Ext.P9) for increasing the intake capacity from 100 to 150. The said permission was renewed for the academic year 201718 as well, as evident from Ext.P10. It is submitted that the MCI WP(C) No.22504/2018 -:2:- conducted an inspection on 22/9/2017 and 23/9/2017. On the basis of the assessment report, notice dated 6/1/2018 has been issued to the petitioner pointing out certain deficiencies. The college submitted its explanation rectifying all the deficiencies. The notice is Ext.P11 and the explanation dated 31/1/2018 is Ext.P12. A further inspection was conducted on 14/3/2018 based on which the Executive Committee of the Council recommended to Central Government not to renew the permission for increased capacity. On the basis of the said report, Ext.P13 order had been issued by MCI to the Government of India on 20/4/2018. Pursuant to Ext.P13, College submitted statement of rectification of deficiencies. The college had been directed to provide detailed point wise compliance for 100 MBBS seats with documentary evidence. Based on the above report, the 1[st] respondent declined renewal of permission as per Ext.P15 order dated 31/5/2018. Two grounds had been specifically urged. One of the grounds taken up by the learned counsel for petitioner is that there is no necessity for letter of permission for continuation of course since the College has recognition. Reference is made to judgment of the Apex Court in _**Sree Balaji Medical College and Hospital and**_ WP(C) No.22504/2018 -:3:- _**another v. Union of India**_ (2016) 1 SCC 434]. Another argument raised is that after Ext.P13 report had been submitted by Medical Council of India, no opportunity was given by the Central Government for a hearing. That apart, the petitioner had remitted fee for the third inspection and without verifying whether the discrepancies noticed had been complied with, it is illegal on the part of Government of India to have issued Ext.P15. 3. Counter affidavit has been filed in the case _inter alia_ stating that the petitioner college had failed to fulfil the minimum infrastructure, teaching faculty, clinical material and other physical facilities in their medical college. In so far as there is no challenge to the assessment made by the MCI, the deficiencies pointed out cannot be ignored and therefore Central Government was justified in rejecting the same. 4. Learned counsel for MCI also placed reliance on judgments in _**Mridul Dhar v. Union of India**_ [(2005) 2 SCC 65], _**Priya Gupta v. State of Chhattisgarh**_ (2012) 7 SCC 433] and _**Ashish Ranjan v. Union of India**_ [(2016) 11 SCC 225] to contend for the proposition that when the time limit specified for MCI to grant permission is already over, this Court may not be WP(C) No.22504/2018 -:4:- justified in interfering with the impugned order at this stage of the proceedings. Further he placed reliance upon judgments in _**Manohar Lal Sharma v. MCI**_ [(2013) 10 SCC 60] and _**MCI v. Kalinga Institute of Medical Science**_ [(2016) 11 SCC 530] to contend for the proposition that the correctness of assessors report cannot be assailed in a writ proceedings. 5. Learned standing counsel appearing on behalf of Union of India while supporting the stand taken by MCI, submitted that unless the deficiencies are cured, it is not possible for the Union of India to grant permission for increasing the intake from 100 to 150 seats, during the present academic year. From the materials placed on record, it is rather clear that the Government of India had acted only on the basis of the report of MCI. This is a case where the MCI as per letter dated 6/1/2018 recommended to the Ministry not to renew the permission for admissions of the 3[rd] batch of MBBS students against increased intake from 100 to 150 and several deficiencies were noticed. The Ministry had given an opportunity to the petitioner for a hearing on 5/2/2018 in order to present their case. The hearing committee after considering the submissions directed a further review by MCI including for WP(C) No.22504/2018 -:5:- imposition of Clause 8(3)(1(c) of the Regulation. The Executive Committee based on the deficiencies pointed out, decided as follows:- _“The Executive Committee further decided not to renew the permission for admission of 3[rd] Batch of MBBS students against the increased intake i.e. from 100-150 at Dr.Somervell Memorial CSI Medical College & Hospital, Thiruvananthapuram under Kerala University of Health Sciences, Thrissur u/s 10 A of the IMC Act, 1956 for the academic session 2018-19 as the college does not even fulfil the requirement of 100 admissions.”_ 6. Apparently the Executive Committee's decision has been approved by the Oversight Committee on 28/3/2018 and the Central Government after considering the said recommendation decided not to renew permission for intake of 150 students for the academic year 2018-19. When the decision has been taken in accordance with the procedure prescribed, we do not think that it will be proper on our part to interfere with the said decision. 7. Learned counsel for the petitioner submitted that the petitioner was not given an opportunity for hearing after the report of MCI. But it is relevant to note that this is a second opportunity that had been granted. As per the schedule, the final WP(C) No.22504/2018 -:6:- recommendation for the letter of permission by MCI should come before 30[th] April and letter of permission by the Central Government before 31[st] May. The petitioner was already granted an opportunity for a hearing as evident from Ext.P15 itself. The petitioner was heard on 5/2/2018. When orders had been issued after a hearing, a further hearing is not contemplated as per the schedule. The schedule reads as under:- |S.<br>No.|Stage of processing|Last Date| |---|---|---| |1|Receipt of applications by the<br>Central Government|Between 15thJune to 7th<br>July<br>(both<br>days<br>inclusive) of any year| |2|Forwarding application by the<br>Central Government to Medical<br>Council of India|By 15thJuly.| |3|Technical Scrutiny, assessment<br>and Recommendations for Letter<br>of Permission by the Medical<br>Council of India|By 15thDecember.| |4|Receipt of reply/compliance from<br>the applicant by the Central<br>Government and for personal<br>hearing thereto, if any and<br>forwarding of compliance by the<br>Central Govt. to the Medical<br>Council of India|Two<br>months<br>from<br>receipt<br>of<br>recommendation from<br>MCI but not beyond 31st<br>January.| |5|Final recommendations for the<br>letter of permission by the<br>Medical Council of India|By 30thApril.| |6|Issue of Letter of Permission by<br>the Central Government|By 31stMay| 8. Already an opportunity had been granted in terms of WP(C) No.22504/2018 -:7:- Sl.No.4 of the Schedule to the petitioner. Therefore, we do not think that it is necessary for the Central Government to give a further opportunity for hearing as contended by the petitioner. 9. Yet another contention urged by the learned counsel for petitioner is that there is no necessity for a letter of permission for continuation of the course for the academic year 2018-19 especially in view of the fact that the college has a recognition. He placed reliance on the judgment of Apex Court in _**Sree Balaji Medial College and Hospital**_ (supra). We do not think that the above judgment has any application to the facts of the present case. The medical qualifications and institutions that are recognised are included in the first schedule. This is an instance where petitioner had sought for increase in the intake of students which apparently requires Central Government permission in terms of S.10A. S.10A clearly indicates that Central Government has to call for the recommendations of the MCI. MCI Regulations had been amended from time to time. The Regulations clearly stipulate that though the Central Government is the authority to grant permission, it has to act on the technical scrutiny, assessment and letter of permission by MCI. The schedule clearly WP(C) No.22504/2018 -:8:- indicates that initial scrutiny has to be done by MCI by 15[th] December and if there is any deficiencies, at the instance of Government of India, MCI has to give their compliance report to the Central Government after conducting necessary verification within two months. It is at that stage the petitioner gets an opportunity for a hearing before the Central Government and the Central Government calls upon the MCI to review the recommendations. The final recommendation has to be made by MCI by 30[th] April. Therefore the contention that once a course is recognised, for intake of additional students, MCI recommendation is not required, cannot be accepted. It is for MCI to verify whether the college has the proper infrastructure and other facilities as per the regulation and the judgment in _**Sree Balaji Medical College and Hospital**_ (supra) cannot be read to mean that no such recommendation is required from MCI and it is for Central Government alone to take a decision. 10. Petitioner also has a case that they were asked to remit fee for a third inspection and MCI should have waited for a report after the said inspection. The said inspection apparently is for a different purpose and not for increasing the seats. WP(C) No.22504/2018 -:9:- In the result, we are not satisfied that any grounds had been made to interfere with the impugned orders. Writ petition is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge