Medical Council of India (MCI) v. V.N. Public Health & Educational Trust and The Kerala University of Health and Allied Sciences, WA No.1356/2011 (Against the order in WPC No.5238/2011 dated 30/05/2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934** ## **WA.No. 1356 of 2011 ( )** **----------------------AGAINST THE ORDER/JUDGMENT IN WPC.NO.5238/2011 DATED 30/05/2011 .......** **APPELLANT(S):R2 IN WP(C): -------------------------------------------** **MEDICAL COUNCIL OF INDIA (MCI) (SUPERSEDED BY THE BOARD OF GOVERNORS) REP.BY ITS SECRETARY, SECTOR 8,POCKET-14, DWARKA, NEW DELHI-110 077.** **BY ADV. SRI.ALEXANDER THOMAS, SC, MCI** ## **RESPONDENT(S):PETITIONER & R1 IN WPC:** **-----------------------------------------------------------------** **1. V.N.PUBLIC HEALTH & EDUCATIONAL TRUST, REPRESENTED BY ITS MANAGING TRUSTEE-SECRETARY, DR.O.KANPPAN, NO.25,JAWAHAR,MAIN ROAD, N.R.T.NAGAR, THENI-625 531,TAMILNADU.** **2. THE KERALA UNIVERSITY OF HEALTH AND ALLIED SCIENCES, REPRESENTED BY THE REGISTRAR, THE KERALA UNIVERSITY OF HEALTH AND ALLIED SCIENCES,MEDICAL COLLEGE P.O., THRISSUR, KERALA - 680 596.** **BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE BY ADV. SRI. S.RADHAKRISHNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **W.A.NO.1356/2011** ## **APPENDIX** ## **APPELLANTS' ANNEXURE:** **ANNEX.A1: COPY OF MCI (ESTABLISHMENT OF NEW MEDICAL COLLEGES) REGULATIONS 1999.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1356 of 2011 ---------------------------------------- Dated this the 28[th] day of June 2012 ## **J U D G M E N T** ## **MANJULA CHELLUR,Ag.CJ** Heard learned counsel for the appellant as well as respondents. This appeal is directed against the judgment dated 30/05/2011 in W.P.C.No.5238 of 2011. First Respondent/writ petitioner has approached the learned Single Jude seeking the following reliefs: “1. Call for the records connected with the case; 2. Declare that the petitioner is entitled to get the Certificate of Consent of Affiliation from the 1[st] respondent University. 3. Issue a writ of mandamus or any other writ order or direction directing the 1[st] respondent to issue the Certificate of Consent of Affiliation on Exhibit P4 application as expeditiously as possible. 4. Direct the 2[nd] respondent not to disapprove the application submitted by the petitioner for starting MBBS course at W.A.No.1356/2011 2 M/s.Odaiyappa Medical College for the academic year 2011-2012 on the ground of non production of Certificate of Consent of Affiliation on or before 15.02.2011. 5. Direct the 2[nd] respondent to complete the inspection of M/s.Odaiyappa Medical College for the academic year 2011-2012, permitting the petitioner to produce the Certificate of Consent of Affiliation, before the forwardig of the report of the Medical Council of India to the Ministry. 6. Pass such other orders that are deemed just, fair and necessary in the facts and circumstances of the case.” 2. After referring to **Mridul Dhar (Minor) and another v. Union of India and others [(2005) 2 SCC 65]** with reference to mandate and time schedule as the requirement for sanction or permission to start a new Medical College, the learned Single Judge at paragraph 5 proceeded to pass the following order: “On going through the materials on record, this Court does not find it necessary to take any deviation from the course pursued in a similar case as per Ext.R2(c). In the said circumstance, the writ petition is disposed of, directing the W.A.No.1356/2011 3 second respondent to conduct necessary inspection for the next academic year, i.e., 201213 and finalise the proceedings in accordance with law, as expeditiously as possible, in similar terms as made clear in Ext.R2(c) verdict. It is made clear that the respondent shall not insist for separate application for the purpose of the said inspection, which shall be conducted on the basis of the application already preferred. It is also made clear that this will be subject to satisfaction of all other requirements, as prescribed under the relevant provisions of law.” 3. It is not in dispute that subsequent to the said judgment, another direction at paragraph 5 as per Annexure A3 dated 02/12/2011, the learned counsel for the appellant sent a letter to the Management of the respondent directing them to comply with certain terms and conditions. Apparently there was no response with regard to compliance of the directions issued at Annexure A3. In that view of the matter, the question would be whether still the respondent Trust can insist upon permission to run the new medical college for the academic year 2012-2013. W.A.No.1356/2011 4 4. As a matter of fact, perusal of the records in the appeal would indicate, on 11/04/2012 learned counsel for the 1[st] respondent Trust categorically stated that time for inspection of the institution had already elapsed and therefore they need not deposit any inspection fee for the present academic year. In that view of the matter, question of considering issuance of permission for academic year 2012-2013 would not arise at all as the 1[st] respondent did not want to deposit the inspection charges since the time for inspection was over. In that view of the matter, we are of the opinion, there cannot be any compliance of the directions of the learned Single Judge in the impugned judgment dated 30/05/2011. 5. We are of the opinion, it is relevant to point out certain facts herein. Right from 2003, the respondent institution is approaching the Medical Council and also concerned Universities apart from the Government for issuing an essentiality certificate to start a medical college. Apparently, in order to have a medical college, a teaching hospital, as contemplated under the procedure, required to be in existence. No doubt, respondent-Trust is running a hospital; but whether that hospital would be in consonance with the requirement of the W.A.No.1356/2011 5 regulation is to be decided by the inspection team sent by the Medical Council of India. If the respondent institution intends to start another hospital, then also it must be in accordance with the regulations. Ultimately, in order to start a new medical college, apart from the essentiality certificate from the Government concerned, with reference to number of years, there has to be a consent letter from the University concerned. This would be considered as an essential document for appreciation of the material by the MCI. Subsequent to the submission of application within the time frame all the relevant and essential documents must be sent along with the application. Apart from submitting the application in time, there has to be compliance of several things within the time schedule. There will be two inspections that is Letter of Indent (LOI) and Letter of Permission(LOP). Even for these two inspections, the time limit for LOI is 15[th] of December and for LOP is 15[th] of May. In that view of the matter, right from the process of submitting the application till the second inspection i.e. LOP which has to be done on or before 15[th] of May, everything has to be processed within the time fixed in the schedule. This is the dictum of the Apex Court in **Mridul Dhar** (Supra), **Government of A.P v.** W.A.No.1356/2011 6 **Medwin Educational Society and Others** [2004(1) SCC 86] and the unreported judgment in **Priya Gupta v. State of Chattisgarh** [C.A.No.4318/2012 dated 08/05/2012]. In that view of the matter, we make it clear that the respondent institution cannot claim the benefit of any application filed by them earlier and so also any fee deposited by them earlier including the earlier certificates, if any, which had to be submitted along with the application unless it is valid for the next academic year. Accordingly, we opine that the respondentinstitution is at liberty to seek permission to start the medical college for the academic year 2013 - 2014 by complying not only with the requirements of essential documents but also time schedule in strict compliance. (sd/-) **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr 29/06/2012 W.A.No.1356/2011 7 W.A.No.1356/2011 8 W.A.No.1356/2011 9