M.S. Alex & Dr. Ranjith R.P. v Medical Council of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **WP(C).No.17339 OF 2020(N)** ## **- PETITIONERS :** |**PETITIONERS**|**:-**| |---|---| |**1**|**M.S.ALEX, AGED 41 YEARS**| ||**S/O.G.MADHAVAN NADAR, RESIDING AT SAJEEV NIVAS,**| ||**ARIKKADAMUKKU, NEMOM P.O.,**| ||**THIRUVANANTHAPURAM - 695 020.**| |**2**|**DR.RANJITH R.P., AGED 35 YEARS**| ||**S/O.RAJUKUTTY G., BETHESDA, KUDUMBOTTUKONAM,**| ||**VATTAVILA P.O., NEYYATTINKARA,**| ||**THIRUVANANTHAPURAM - 695 132.**| ||**BY ADVS.**| ||**SRI.M.GOPIKRISHNAN NAMBIAR**| ||**SRI.K.JOHN MATHAI**| ||**SRI.JOSON MANAVALAN**| ||**SRI.KURYAN THOMAS**| ||**SRI.PAULOSE C. ABRAHAM**| ||**SRI.R.CHETHAN KRISHNA**| ||**SRI.E.K.NANDAKUMAR (SR.)**| |**RESPONDENTS**|**:-**| |**1**|**THE MEDICAL COUNCIL OF INDIA**| ||**REPRESENTED BY ITS SECRETARY,**| ||**DADA DEV MANDIR ROAD DWARKA PHASE-1, POCKET 14,**| ||**SECTOR 8 DWARKA, NEW DELHI, DELHI - 110 077.**| |**2**|**THE PRESIDENT,**| ||**MEDICAL COUNCIL OF INDIA**| ||**DADA DEV MANDIR ROAD DWARKA PHASE-1, POCKET 14,**| ||**SECTOR 8 DWARKA, NEW DELHI, DELHI - 110 077.**| |**3**|**THE STATE OF KERALA**| ||**REPRESENTED BY ITS SPECIAL SECRETARY TO**| ||**GOVERNMENT, HEALTH AND FAMILY WELFARE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**4**|**DR.J.BENNET ABRAHAM**| ||**PALLIVILA VEEDU, GANTHIPURAM, SREEKARYAM P.O.,**| ||**THIRUVANANTHAPURAM – 695 017.**| WP(C).No.17339 OF 2020(N) -: 2 :- **5 RT.REV.A.DHARMARAJ RASSALAM BISHOP AND CHAIRMAN, SMCSI MEDICAL COLLEGE, L.M.S.COMPOUND, THIRUVANANTHAPURAM - 695 033. BY ADV. SRI.TITUS MANI BY ADV. SRI.ARUN.B.VARGHESE BY ADV. SMT. AISWARYA V.S. BY ADV. JAYKAR.K.S. BY SRI. SUNIL KURIAKOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 01-12-2020 DELIVERED THE FOLLOWING:** WP(C).No.17339 OF 2020(N) -: 3 :- ## **JUDGMENT** ## **Dated this the 1st day of December 2020** ## This writ petition is filed seeking the following reliefs :- - “(a) Issue a writ of quo warranto holding and declaring that the 4[th] respondent does not have the necessary qualifications prescribed by the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998, issued under the Indian Medical Council Act, to function as the Director of Dr.Somervell Memorial C.S.I. Medical College and Hospital. - (b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent to consider Ext.P18 complaint filed by the petitioner and take a decision thereon after affording to the petitioner an opportunity of being heard. - (c) Issue a writ of mandamus in the nature of a declaration holding and declaring that the 4[th] respondent is unfit and not qualified to hold the post or function as Director of any Medical Institution including the Dr.Somervell Memorial CSI Medical College, in terms of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 issued under the Indian Medical Council Act, 1956.” 2. Heard the learned Senior Counsel appearing for the petitioners and the learned Senior Counsel appearing for respondents 4 and 5. 3. The learned Senior Counsel for the petitioners submits that the 4[th] respondent had been appointed as the Director of the Medical College and Teaching Hospital by the 5[th] respondent. It is stated that WP(C).No.17339 OF 2020(N) -: 4 :- Ext.P1 is the copy of the Constitution of the Medical Mission and that the Medical Mission has been running a hospital and later a Medical College by name Dr.Somervell Memorial C.S.I. Medical College and Hospital and several allied institutions. It is stated that the 4[th] respondent had been appointed as Assistant Professor, Department of Anesthesia by Ext.P2 order dated 16.3.2007. It is stated that immediately thereafter he was appointed as Director of the Medical College and Hospital and that he did not have the qualification required as per Ext.P5 Regulations. It is stated that the appointment of the 4[th] respondent as Director of the Medical College and Hospital without the qualification prescribed in Ext.P5 was void and non-est. It is stated that the 4[th] respondent was placed under suspension on 8.9.2018 owing to allegations in the media regarding collection of capitation fee for admission to MBBS course in the College in the year 2018-’19. It is stated that by Ext.P4 order dated 13.12.2019, the 4[th] respondent’s suspension was revoked and he was reinstated as the Director of the Medical College and Teaching Hospital. It is contended that going by the provisions of Ext.P5 Regulations issued by the MCI, the Director of a Medical Institution should have, among other qualifications, a minimum of 10 years of teaching experience as Professor/Associate Professor/Reader in a medical college or institution out of which five years should be as Professor. It is WP(C).No.17339 OF 2020(N) -: 5 :- contended that the 4[th] respondent admittedly did not possess the above qualification and that he is therefore not eligible to hold the post of Director of the Medical College and the Teaching Hospital. It is submitted that the continuance of a person like the 4[th] respondent who is facing criminal proceedings for his complicity in accepting capitation fee for admission in the college is detrimental to the interest of the institution and is also clearly against Ext.P5 and is liable to be interdicted. 4. The learned counsel for the petitioners placed reliance on the decisions of the Apex Court in **Rajesh Awasthi** v. **Nand Lal Jaiswal and Others** [2012 KHC 4631] and **N. Kannadasan and Another** v. **Ajoy Khose and Others** [2009 KHC 4424] in support of his contention that a person who holds the public office without qualification is liable to be required by a writ of quo warranto to show on what authority he holds such office. 5. A detailed counter affidavit has been placed on record by the 4[th] respondent. It is contended that the writ petition is not maintainable since the 4[th] respondent is not holding any public office and that he has been appointed as the Director of the SMCSI Medical College and allied institutions, Karakonam and not the Medical College. It is stated that the name of the hospital is Dr.Somervell Memorial C.S.I. Medical College and Hospital. The institution is WP(C).No.17339 OF 2020(N) -: 6 :- purely private in nature and the 4[th] respondent is not holding any public office. It is stated that Ext.P1 is not the Constitution which is in force and Ext.R4(a) is the Constitution of the Medical Mission of South Kerala Diocese of the Church of South India, which is in force today. It is further stated that clause (m) in the interpretations of Ext.R4(a) Constitution defines Director, Dr.Somervell Memorial C.S.I. Medical College and Hospital to be the Director of the Medical College and Hospital and allied institutions and the Nursing and Para Medical institutions attached to the Medical College and Hospital appointed by the Chairman. It is stated that the 5[th] respondent is the Chairman of the Medical Mission and that the 4[th] respondent was appointed as the Director of the Medical College and Hospital and allied institutions, Karakonam. It is stated that the 4[th] respondent is duly qualified as per Ext.P5 Regulations. It is further stated in paragraph 9 of the counter affidavit as under :- “(9) It is respectfully submitted that all the averments contained in Paragraph 5 to 7 of the writ petition are denied except those which are specifically admitted here under. As it is seen from Exhibit P4, I was appointed as the Director of the Dr.SMCSI Medical College and Hospital and allied institutions Karakonam. I am duly qualified as per Exhibit P5 regulations. I am the Director of the affiliated medical college hospital and not the Director of the medical college. I am duly qualified to get appointed as Director of the Dr. SMCSI Medical College and Hospital and allied institutions Karakonam. I am a Post Graduate and having 30 years of administrative experience. The petitioners have to work out their WP(C).No.17339 OF 2020(N) ## -: 7 :- remedies elsewhere and not in the above writ petition filed under Article 226 of the Constitution of India. I teach the students only in the capacity of Associate Professor of Anesthesiology. More over the Medical College is having a separate Principal having required qualification. Dr.Samson Nessiah M.S. Ortho is the present Principal/Dean of the medical college. The regulation only prescribes Principal/Dean/Director of medical education. A true copy of the assessment form for the MBBS admission for the academic year 2019-20 submitted before the 1[st] respondent is produced and marked as Ext.R4(e).” The contentions raised by the petitioners with regard to the allegations against the 4[th] respondent are refuted with the support of documents. It is further submitted at paragraph 12 as follows :- “(12) It is respectfully submitted that the delay in challenging my appointment is fatal. Moreover it is pertinent to note that Exhibit P4 order is not under challenge in the above writ petition. The medical college as well as the allied hospital and other institutions are governed by Exhibit R4(a) Constitution and the “Director” is defined as the Director of the Dr. SM CSI Medical college and Hospital, Karakonam and nursing and paramedical institutions attached to the Medical College and the Hospital. The functions of the Director and the institution in which he should act as the Director is also incorporated in Exhibit R4 (a) constitution. I am only getting an additional allowance of Rs.15000/- as honorarium for holding the post of Director of Dr.SMCSI Medical College and Hospital and allied institutions Karakonam in addition to my salary attached to the teaching post as Professor of Anesthesiology. I have been acting as the Director for the last 7 years and never have been there any challenge before any court except now, by the disgruntled elements who are not able to vent their vengeance in politics between 2 fractions of the Church. I am WP(C).No.17339 OF 2020(N) -: 8 :- not a Public Servant. The writ petition is misconceived and with malafide.” 6. The learned Senior Counsel appearing for the 4[th] respondent would submit that the entire writ petition is misconceived. It is stated that Ext.P5 is the Regulations of the MCI prescribing minimum qualifications for teachers in the medical institutions. It is stated that the 4[th] respondent possessed the qualifications prescribed in Ext.P5 Regulations for the post of Assistant Professor, Associate Professor and Professor, which are the posts substantially held by him in the Medical College. It is stated that table 1 showing the requirements of academic qualifications, teaching experience and research experience would show that the requirement is of a Principal, a Dean or a Director of the Medical Institution and it is for the said post that the qualification of 10 years teaching experience as Professor/Associate Professor/Reader out of which at least five years should be as a Professor is prescribed. It is contended that Exts.R4(e) to R4(g) documents produced by the 4[th] respondent would clearly show that the Medical College has a Dean/Principal as well as a Medical Superintendent as provided in Ext.P5 Regulations. It is contended that the 4[th] respondent is neither the Principal/Dean/ Director of the Medical College nor the Director/Medical Superintendent of the Medical College as is evident from Exts.R4(e) to R4(g). It is contended that the 4[th] respondent's appointment as the WP(C).No.17339 OF 2020(N) -: 9 :- Director of the Teaching Hospital and the allied institutions is only an appointment by the 5[th] respondent to carry out the functions as provided in Ext.R4(a) Constitution and that it is not a public office of Director of the Medical College as provided in Ext.P5. It is further contended that the petitioners have not produced any documents in the writ petition in support of the contention that the 4[th] respondent is functioning as the Director of the Medical College and that as such, the contentions are completely untenable. It is contended by the learned Senior Counsel that since the 4[th] respondent does not hold a public office of Director of the Medical College and is only appointed as the Director of the Dr.Somervell Memorial C.S.I. Medical College and Hospital, Karakonam and its allied institutions, the writ petition is not maintainable and is liable to be dismissed with compensatory costs. 7. I have considered the contentions advanced. I am of the clear opinion that a writ of quo warranto or even a resultant writ of declaration would lie only if the 4[th] respondent is functioning as a Director of the Medical College and is unqualified to hold the said post in terms of the MCI Regulations. It is the specific case of the 4[th] respondent that he does not hold such post. It is specifically stated in the counter affidavit that the name of the hospital is Dr.Somervell Memorial C.S.I. Medical College and Hospital, Karakonam and it is WP(C).No.17339 OF 2020(N) -: 10 :- only as a Director of the said Hospital and its allied institutions that the 4[th] respondent has been appointed by the 5[th] respondent. If the said contention is accepted, then the appointment of the 4[th] respondent would not come within the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998. The petitioners have no case that the 4[th] respondent is not qualified in terms of the Regulations to hold the substantive post of Professor which he is holding in the Medical College. If that be so, the contention that the 4[th] respondent is liable to be required to show on what authority he holds the office of the Director of the Medical College would be misconceived. 8. Though the learned Senior Counsel appearing for the petitioners sought to hand over a document contending that the 4[th] respondent had been making appointments to teaching posts in the Medical College as well, the said document has not been produced in any manner known to law before this Court and since no copy has evidently been served on the respondents, I do not intend to rely on the said document for any purpose. In the above view of the matter, the specific contention of the 4[th] respondent that he has been appointed as Director of the Dr.Somervell Memorial C.S.I. Medical College and Hospital, Karakonam, which is the name of the Teaching Hospital and its allied WP(C).No.17339 OF 2020(N) -: 11 :- institutions, is recorded. The writ petition is accordingly, closed on the basis of the specific submissions made in the counter affidavit of the 4[th] respondent. In the facts and circumstances of the case, I am of the opinion that this is not a fit case for imposing compensatory costs. **Sd/-** **ANU SIVARAMAN JUDGE** Jvt/27.11.2020 WP(C).No.17339 OF 2020(N) -: 12 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CONSTITUTION OF THE PETITIONER (AMENDED UP TO 23/03/2006)** - **EXHIBIT P2 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 4TH RESPONDENT ASSISTANT PROFESSOR IN S.M.C.S.I. MEDICAL COLLEGE DATED 16/03/2007.** - **EXHIBIT P3 TRUE COPY OF THE SUSPENSION ORDER OF THE 4TH RESPONDENT WITH REFERENCE NO.ORDER NO.SKD(B) B&C/116/1006/18 DATED 08/09/2018.** - **EXHIBIT P4 TRUE COPY OF ORDER NO.SKD(B) B&C 116/1151/19 DATED 13/12/2019 REINSTATING THE 4TH RESPONDENT AS THE DIRECTOR OF THE S.M.C.S.I. MEDICAL COLLEGE.** - **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE MINIMUM QUALIFICATIONS FOR TEACHERS IN MEDICAL INSTITUTIONS REGULATIONS, 1998 (AS AMENDED UP TO 8TH JUNE, 2017).** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS WITH REFERENCE NO.MCHK/ESTTL(B)/1417/12 DATED 27/06/2012 SHOWING APPOINTMENT OF 4TH RESPONDENT AS ASSOCIATE PROFESSOR.** - **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE ADMISSION SUPERVISORY COMMITTEE FOR MEDICAL EDUCATION DATED 19/08/2019.** - **EXHIBIT P8 TRUE COPY OF FIR NO.0859/2019 DATED 07/09/2019 OF VELLARADA POLICE STATION.** - **EXHIBIT P9 TRUE COPY OF FIR NO.0957/2019 DATED 11/10/2019 OF VELLARADA POLICE STATION.** - **EXHIBIT P10 TRUE COPY OF FIR NO.1042/2019 DATED 04/11/2019 OF VELLARADA POLICE STATION.** - **EXHIBIT P11 TRUE COPY OF FIR NO.1072/2019 DATED 13/11/2019 OF VELLARADA POLICE STATION.** - **EXHIBIT P12 TRUE COPY OF THE FIR NO.1169/2019 DATED 10/12/2019 OF VELLARADA POLICE STATION.** - **EXHIBIT P13 TRUE COPY OF FIR NO.1170/2019 DATED 10/12/2019 OF VELLARADA POLICE STATION.** WP(C).No.17339 OF 2020(N) -: 13 :- **PROVISIONAL AFFILIATION ISSUED TO THE DR.SMCSI MEDICAL COLLEGE, KARAKKONAM FOR THE ACADEMIC YEAR 2019-20 BY THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES DATED 26/08/2019.** **EXHIBIT P15 TRUE COPY OF THE ORDER FOR CONTINUATION OF PROVISIONAL AFFILIATION ISSUED TO THE DR.SMCSI MEDICAL COLLEGE, KARAKKONAM FOR THE ACADEMIC YEAR 2018-19, BY THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES DATED 19/09/2018.** - **EXHIBIT P16 TRUE COPY OF THE RENEWED ESSENTIALITY CERTIFICATE NO.36832/S3/2014/H&FWD DATED 25/08/2014 ISSUED TO DR.SMCSI MEDICAL COLLEGE BY ADDITIONAL SECRETARY TO GOVERNMENT OF KERALA.** - **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 13/12/2019 GIVEN BY THE REPRESENTATIVE OF THE PARENT-TEACHER'S ASSOCIATION OF THE MEDICAL COLLEGE TO THE 2ND RESPONDENT.** WP(C).No.17339 OF 2020(N) -: 14 :- ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(a) : TRUE COPY OF THE CONSTITUTION OF THE MEDICAL MISSION OF SOUTH KERALA DIOCESE OF THE CHURCH OF SOUTH INDIA (SOUTH INDIA UNITER CHURCH).** **EXHIBIT R4(b) : TRUE COPY OF PROCEEDINGS No.SKD(B)116/03/2020 DATED 01.02.2020 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT R4(c) : TRUE COPY OF THE PLAINT IN O.S.No.56/2020 PENDING ON THE FILES OF SUB COURT THIRUVANANTHAPURAM.** **EXHIBIT R4(d) : TRUE COPY OF THE SOUVENIR PUBLISHED IN CONNECTION WITH THE HONORING OF 25 YEARS OF HEALING WORK OF ME AT THE MISSION HOSPITAL AND THE MEDICAL COLLEGE (RELEVANT PAGES).** **EXHIBIT R4(e) : TRUE COPY OF THE ASSESSMENT FORM FOR THE MBBS ADMISSION FOR THE ACADEMIC YEAR 2019-20 SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXHIBIT R4(f) : TRUE COPY OF THE ASSESSMENT FORM FOR THE MBBS ADMISSION FOR THE ACADEMIC YEAR 2018-19 SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXHIBIT R4(g) : TRUE COPY OF THE STANDARD ASSESSMENT FORM FOR THE POST GRADUATE COURSES FOR THE YEAR 2016 SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXHIBIT R4(h) : TRUE COPY OF ORDER No.S3/283/2019-HEALTH DATED 23.12.2019 ISSUED BY THE HEALTH AND FAMILY WELFARE (S) DEPARTMENT, GOVERNMENT OF KERALA.**