Principal KMCT Medical College, Manassery, Kozhikode, Kerala v. Union of India and Medical Council of India

**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. 15591 of 2018** ## **PETITIONER(S)** **THE PRINCIPAL KMCT MEDICAL COLLEGE, MANASSERY, KOZHIKODE, KERALA - 673602** **BY ADV.SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **1. UNION OF INDIA REPRESENTED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE, A WING, NIRMAN BHAVAN, MAULANA AZAD ROAD, NEW DELHI - 110011** **2. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY THE SECRETARY, POCKET-14, SECTOR 8, DWARAKA PHASE-I, NEW DELHI - 110077** **R1 BY ADV. SRI.T.V.VINU, CGC R2 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-07-2018, THE COURT ON 23-07-2018 DELIVERED THE FOLLOWING:** **WP(C).No. 15591 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: TRUE COPY OF THE GOVERNMENT ORDER NO.U-12012/33/2016-ME-I DATED 26/9/2016.** **EXT.P2: TRUE COPY OF THE GOVERNMENT ORDER NO.U-12011/14/ 2016-ME-I DATED 18/5/2017.** **EXT.P3: TRUE COPY OF THE ASSESSMENT REPORT FOR THE CONTINUATION OF PERMISSION MADE BY THE INSPECTORS AND COUNTERSIGNED BY THE PETITIONER** ## **EXT.P4: TRUE COPY OF THE REPORT OF THE INSPECTORS.** **EXT.P5: TRUE COPY OF THE COMMUNICATION NO. MCI-37(1)(R1-20)(UG)/2017-MED/155552 DATED 22/11/2017 ISSUED BY THE MIC ALONG WITH CONVERING LETTER FOR HEARING.** **EXT.P6: TRUE COPY OF THE COMMUNICATION REF.NO.357/ KMCTMC/ 03/2015 DATED 18/12/2017 ISSUED BY THE PETITIONER WITH ENCLOSURE.** **EXT.P7: TRUE COPY OF THE COMMUNICATION REF.NO.362/ KMCTMC/ 12/2017 DATED 21/12/2017 ISSUED BY THE PETITIONER WITH ENCLOSURE.** **EXT.P8: TRUE COPY OF THE DECISION DATED 21/12/2017 PASSED BY THE MINISTRY AND THE CONSEQUENTIAL COMMUNICATION OBTAINED UNDER THE RTI ACT.** ## **EXT.P9: TRUE COPY OF THE MBBS ADMISSION REPORT.** **EXT.P10: TRUE COPY OF THE COMMUNICATION NO.MCI-37(1)(R1-20)(UG)/2017-MED/104239 DATED 20/4/2017 ISSUED BY THE MCI.** **EXT.P11: TRUE COPY OF THE CIRCULAR NO. MCI-37(1)(GEN.)/2015-MED/127873-128429 ISSUED BY THE MEDICAL COUNCIL OF INDIA DATED 19/8/2015** **EXT.P12: TRUE COPY OF THE ORDER NO.U.12012/48/2018-ME-I(FTS.3155941] DATED 31ST MAY, 2018 PASSED BY THE GOVERNMENT OF INDIA.** ## **EXTS. OF R1** **ANNEXURE R1(a): TRUE COPY OF CORRIGENDUM NO.U.12012/48/2018-ME-1[FTS.3155941] DATED 6.6.2018.** **EXTS. OF R2** **ANNEXURE R-2/a: A TRUE COPY OF THE MCI COMMUNICATION DATED 23.6.2017.** **ANNEXURE R-2/b: A TRUE COPY OF LETTER MCI-37(1)(R1-20)(UG)/2017-MED/155552 DATED 22.11.2017.** ## **ANNEXURE R-2/c: A TRUE COPY OF MCI LETTER DATED 20.4.2018.,** **ANNEXURE R-2/d: TRUE COPY OF JUDGMENT DATED 28.5.2015 OF HON'BLE DELI HIGH COURT IN WP(C) NO.5041/2015-SHREE CHHATRAPATI SHIVAJI EDUCATION SOCIETY & ANR. VS. UNION OF INDIA AND ANOTHER VIDE JUDGMENT.** **WPC NO.15591/2018** **-2-** **ANNEXURE R-2/e: TRUE COPY OF ORDER DATED 11.9.2015 OF THE HON'BLE DELHI HIGH COURT IN WPC NO.7106/2015- MALLA REDDY INSTITUTE OF MEDICAL SCIENCES & ANOTHER V. UNION OF INDIA AND ANOTHER AND WPC NO.8541/2015 - LORD BUDDHA SIKSHA PRATISTHAN AND ANOTHER V. UNION OF INDIA AND ANOTHER.** **ANENXURE R-2/f: TRUE COPY OF JUDGMENT DATED 29.9.2015 OF THE HON'BLE DELHI HIGH COURT IN WPC NO.7106/2015- MALLA REDDY INSTITUTE OF MEDICAL SCIENCES AND ANR. VS. UNION OF INDIA AND ANOTHER AND WPC NO.8541/2015- LORD BUDDHA SIKSHA PRATISTHAN AND ANOTHER V. UNION OF INDIA AND ANOTHER.** **ANNEXURE R-2/g: TRUE COPY OF THE JUDGMENT DATED 27/4/2016 BY THE HON'BLE SUPREME COURT IN CIVIL APPEAL 4812/2016 MCI VS. MALLA REDDY INSTITUTE OF MEDICAL SCIENCES & ANOTHER AND CIVIL APPEAL NO.4813/2016-MCI VS. LORD BUDDHA SIKSHA PRATISTHAN.** **EXT.R2(a): TRUE COPY OF MCI LETTER DATED 23.6.2017.** **EXT.R2(b): TRUE COPY OF MCI LETTER DATED 22.11.2017. EXT.R2(c): TRUE COPY OF MCI LETTER DATED 20.4.2018. EXT.R2(d): TRUE COPY OF MCI LETTER 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 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. 15591 of 2018 ==================== Dated this, the 23[rd] day of July, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ The petitioner challenges Exts.P8, P10 and P12 and seeks for consequential directions. 2. The short facts that have arisen in the matter are as under:- Petitioner is the Principal of KMCT Medical College. The College has been given permission to provide MBBS course with an intake of 100 seats during the academic year 2008-09, which was renewed from time to time. The College also has been given recognition in terms of S.11(2) of the Medical Council of India Act (hereinafter referred to as MCI Act). Petitioner sought for approval for increasing the intake of students from 100 to 150 and by Ext.P1 dated 26/9/2016, Central Government granted permission to the petitioner u/s 10A of the MCI Act, to increase the intake capacity from 100 to 150 seats during the academic year 2016-17. In respect of the WP(C) No.15591/18 -:2:- second batch of MBBS students, for the increase intake for academic year 2017-18, petitioner obtained permission from Central Government as per Ext.P2 dated 18/5/2017. For the third batch of the year 2018-19 also, petitioner applied for renewal of permission. A surprise inspection was conducted by the Inspectors appointed by MCI on 19/9/2017 and Ext.P3 is the report regarding the same. According to the petitioner, on the very same day, another inspection was conducted for continuation of recognition u/s 11 of the Act and Ext.P4 is the said report. In Ext.P3 report, MCI found certain deficiencies as evident from their letter dated 22/11/2017 issued to the Secretary, Government of India, which forms part of Ext.P5. The deficiencies pointed out are as under:- - _“The Executive Committee of the Council considered the assessment report (18/19.09.2017) and noted the following:_ _1. CT Scan is single slice against minimum 16 slice required._ _2. Examination Hall: Out of 2 Examination Hall available, 1 is actually an Auditorium which cannot be considered as Examination Hall; hence there is deficit of 1 Examination Hall._ _3. Other deficiencies as pointed out in the assessment report.”_ 3. Based on the said report, petitioner was issued letter WP(C) No.15591/18 -:3:- dated 8/12/2017 (Ext.P5), by the Central Government to appear for a hearing on 19/12/2017. According to the petitioner, representatives of the College participated in the hearing and produced the required details for rectifying the defects. Copy of the compliance report was given to MCI as per Ext.P7 dated 21/12/2017. 4. Government of India as per its communication dated 21/12/2017 (Ext.P8) informed the petitioner that they had sent compliance report along with their observation and recommendation to the MCI. MCI was requested to review the schemes in the light of the documents submitted by the Colleges/applicants and the recommendation of the Committee and forward recommendations to the Ministry. As far as the petitioner's college is concerned, the remarks were shown at Sl.No.21, wherein it is stated as under:- _“Only two deficiencies regarding single slide CT scan and auditorium as examination hall has been pointed out. The college has submitted documentary evidence to suggest rectification of the two deficiencies._ _In the view of the committee, MCI may review and make revised recommendation without any need for compliance verification.”_ WP(C) No.15591/18 -:4:- 5. Petitioner submits that though a further verification was not required, MCI opted for another inspection and though it was found that the deficiencies found earlier had been rectified, made note of certain other deficiencies as per their report Ext.P9. Based on the said report, Ext.P10 orders were issued by MCI on 20/4/2018 pointing out various other deficiencies and accordingly petitioner was informed that the Executive Committee has decided to recommend the Central Government not to renew the permission for admission of the third batch of MBBS students against the increased intake from 100 to 150 for the academic session 2018-19. 6. Petitioner initially challenged Ext.P8 _inter alia_ contending that the Central Government being satisfied about the explanation offered by the petitioner ought to have granted permission for the intake of 150 seats rather than calling upon MCI to give revised recommendation. Further MCI was not expected to conduct another inspection and find out whether there are other deficiencies. The deficiencies originally pointed out had already been rectified and when Government of India had called upon them to issue revised recommendation without even WP(C) No.15591/18 -:5:- verification, they were not expected to conduct a further inspection and find out additional deficiencies. 7. Petitioner thereafter amended the writ petition challenging Ext.P10 and also Ext.P12, the order issued by Government of India based on Ext.P10. Government of India by Ext.P12 therefore decided not to renew the permission for admission of third batch of MBBS students against the increased intake from 100 to 150 for the academic session 2018-19. 8. The main contention urged by the learned counsel for petitioner is that MCI was not expected to go beyond Ext.P8 and conduct a further inspection pointing out other deficiencies especially when Government of India alone is the authority to grant permission. It is argued that there was no reason for Government of India to write back to MCI for a revised recommendation. Even assuming that in Ext.P8 a revised recommendation is sought for, when Government of India had clearly stated that it should be “without any need for compliance verification”, it was not open for MCI to find out other deficiencies and then deny the permission for intake of additional seats. 9. The Central Government counsel had filed an WP(C) No.15591/18 -:6:- additional statement stating that a corrigendum has been issued to Ext.P12 on 6/6/2018 which is produced as Annexure R1(a) by which para 6 of Ext.P12 had been corrected and it is stated as under:- _(i) Para 6 may be read as under:-_ _“Now, therefore, the Central Government after considering the recommendation dated 20.4.2018 of MCI, has decided not to renew the permission for admission of 3[rd] batch against increased intake from 100 to 150 in MBBS Course at KMCT Medical College, Kozhikode in the academic session 2018-19. The Institute is accordingly directed not to admit any student in MBBS Course for the academic session 2018-19 against increased intake i.e., 100 to 150. However, the College is free to apply afresh for next academic year strictly as per Provisions of IMC Act, 1956 and Regulations framed there under:-”_ 10. In the counter affidavit filed on behalf of 2[nd] respondent MCI, it is contended that the inspection report dated 18[th ] and 19[th] September 2017 and 14/3/2018 reveals that there were gross deficiencies of infrastructure, teaching faculty, clinical material and other physical facilities in the college. In so far as there is no allegation against the MCI assessors, deficiencies pointed out by MCI subsists and it is not possible for MCI to grant approval WP(C) No.15591/18 -:7:- overlooking the said deficiencies. Further, it is submitted that the last day of 30[th] April, 2018 for sending final recommendation for grant of renewal of permission by MCI and 31[st] May, 2018 for issuing grant of renewal of permission by Central Government for the academic year 2018-19 as held by the Apex Court in _**Ashish Ranjan v. Union of India and others**_ [(2016) 11 SCC 225] is already over and it is impermissible to consider the case of the petitioner college for the academic year 2018-19. 11. There is no dispute regarding the fact that there is a time limit provided for compliance of various requirements and the Apex Court had clearly held that neither the Central Government nor MCI or any other authority can extend such time limit. 12. But in this case, as pointed out by learned counsel for petitioner, the writ petition was filed on 8/5/2018 challenging Ext.P8 and when the last date for compliance expired only on 31[st] May. It could therefore be seen that the petitioner had approached this Court well in advance and even before the expiry of the period fixed for the Central Government to pass final order, and the admissions are going on. At this stage of the proceedings, WP(C) No.15591/18 -:8:- if this writ petition is considered, we do not think that any prejudice would be caused to any of the stake holders. 13. Learned counsel for the petitioner placed much reliance on the judgment of the Apex Court in _**Sree Balaji Medical College and Hospital and another v. Union of India**_ _**and another**_ [(2016) 1 SCC 434]. This judgment had been relied upon to emphasise the difference between “recognition” and “permission” granted for the colleges under the MCI Act. It is held that “recognition” and “permission” are two different concepts. Recognition is of a medical qualification, which is ordinarily known as a course conducted by an Institution which also is to be recognized, whereas permission of the Central Government is required for establishing a medical college, to open a new course of study or training other than the recognized course and to increase the admission capacity in any course of study or training. It is further held that once a Medical College is recognized u/s 11 of the Act, along with the medical qualification, thereafter, for increase in the admission capacity in any course of study or training that is recognized u/s 11 of the Act, only permission from Central Government as per the scheme u/s 10A of the Act is WP(C) No.15591/18 -:9:- ## required. Para 11 is relevant, which reads as under:- _“11. Under the scheme of the Act, permission is for the admission capacity and recognition is for the course and the institution. Once a course and an institution is notified in the First Schedule as per Section 11 of the Act as a recognised course and a recognised institution, the admission capacity or its increase in any recognised course needs only the permission of the Central Government as per the scheme under Section 10A of the Act.”_ 14. In the above case, the question considered was once a medical qualification granted by a medical institution of India is recognized by the Central Government, whether the recognition is required for increasing the admission capacity from time to time, or whether permission of Central Government alone is required for such an increase. 15. In the case on hand, the question is whether when the Central Government is satisfied with the fact that the deficiencies pointed out by MCI had been rectified,whether a further review for a revised recommendation is necessary from MCI or not. Therefore, the judgment in _**Sree Balaji Medical College and Hospital and another**_ (supra) has no application to the facts of the case and cannot be construed as a proposition that once WP(C) No.15591/18 -:10:- recognition is granted, MCI recommendation is not required for the Central Government permission, to increase the number of seats. 16. Learned counsel for MCI placed reliance upon 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**_ (supra) to contend for the proposition that as the time limit is over, this Court should not interfere in the matter. Further reliance is placed on the judgment of the Delhi High Court in _**Shree Chhatrapati Shivaji Education Society v. Union of India**_ [AIR 2015 (NOC) 1120 (Delhi)]. It is submitted that though the above judgment was set aside by the Full Bench of the Delhi High Court in _**Medical Council of India v. Vedantaa Institute of Academic Excellence Pvt. Ltd,.**_ (Civil Appeal No.5805/2018 dated 1/6/2018), the Apex Court has upheld the validity of 1999 Regulation 8(3)(1). 17. As far as the time schedule is concerned, we have already opined that despite such time schedule, when orders had been passed by the Central Government within the specified time and it is challenged by the petitioner, this Court is entitled to consider the same in judicial review especially when the time for WP(C) No.15591/18 -:11:- admission expires only by 15[th] September, 2018. 18. In _**Shree Chhatrapati Shivaji Education Society's case**_ (supra), the Delhi High Court considered a question relating to establishment of Medical College Regulations, 1999. We are concerned with a slightly different situation where the question is only regarding intake of additional seats for which a separate schedule is provided. We are virtually concerned with “Opening of a New or Higher Course of Study or Training (Including Postgraduate Course of Study or Training) and increase of Admission Capacity in any Course of Study or Training (Including a Postgraduate Course of Study or Training) Regulations 2000. The Regulations specifies a scheme for permission of the Central Government to increase the admission capacity. The schedule prescribed for completing the formalities are 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.| WP(C) No.15591/18 ## -:12:- |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| 19. The Schedule indicates that applications are to be made to the Central Government between 15[th] June to 7[th] July of any year. The applications are to be forwarded by the Central Government to MCI by 15[th] July and technical scrutiny, assessment and recommendations for letter of permission by MCI has to be completed by 15[th] December. Central Government has to either obtain the reply, ensure compliance, or give a personal hearing to the applicant, and forward the compliance to MCI on or before 31[st] January. Final recommendation for the letter of permission by the MCI is to be by 30[th] April and letter of permission by Central Government by 31[st] May. It is therefore apparent from the schedule itself that after hearing, a final WP(C) No.15591/18 -:13:- recommendation for the letter of permission has to be issued by MCI and thereafter the letter of permission has to be issued by Central Government. Ext.P8 is only a stage coming under Sl.No.4 of the Schedule. Therefore, it is totally baseless to contend that once the Central Government is satisfied about the compliance, they have to issue letter of permission, without reverting to MCI. The Regulations contemplate a final recommendation for the letter of permission by MCI, on the basis of which Central Government has to issue letter of permission. This process cannot be ignored. 20. The question would be whether the MCI had gone beyond the instructions issued by the Central Government in this regard and whether their approach is arbitrary or illegal. Central Government had filed a statement through the standing counsel. In the statement, it is stated that the 2[nd] respondent had informed them by letter dated 20/4/2018 that the compliance verification assessment report dated 14/3/2018 indicated that there are certain deficiencies. The report was considered by the Executive Committee and the Council decided to recommend to the Central Government not to renew the permission. The standing counsel WP(C) No.15591/18 -:14:- further reiterated the fact that in Ext.P12, it was indicated that in the letter issued by the Medical Council on 22/11/2017, it was reported that there were three deficiencies and item No.3 was other deficiencies as pointed out in the assessment report which still remains unattended and it is in the said background that MCI had conducted another verification on 14/3/2018. As far as the other two deficiencies are concerned, clear instructions had been given to give clear recommendation without any need for compliance verification. But with reference to other deficiencies which were pointed out and reflected in the assessment report, it clearly indicates that the college is not entitled for additional intake of 150 students. 21. But it is rather clear from the Central Government directions as evident from Ext.P8 that they were convinced about the fact that permission ought to be granted, but taking into account the fact that a final recommendation ought to come from the Medical Council of India, MCI was directed to issue the final recommendation without further verification. When such a direction had been issued, MCI was bound to comply with that and a further inspection was unwarranted. Exts.P10 and P12 therefore WP(C) No.15591/18 -:15:- suffer from arbitrariness and are liable to be quashed. In the result, the writ petition is allowed as under:- (i) Exts.P10 and P12 are quashed. (ii) The 2[nd] respondent is directed to issue necessary recommendation to the 1[st] respondent increasing the intake from 100 to 150 seats to the petitioner College within a period of three days from today. (iii) The 1[st] respondent on receipt of such recommendation from the 2[nd] respondent shall issue necessary letter of permission for the same to the petitioner within three days thereafter. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge