W. A. Nos. 772 & 739 of 2015

W. A. Nos. 772 & 739 of 2015 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, ``` ``` 1944 ``` ``` WA NO. 772 OF 2015 ``` ``` AGAINST THE JUDGMENT WPC 7010/2013 OF HIGH COURT OF KERALA APPELLANT/S: ``` ``` THE MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY,POCKET-14,SECTOR 8,DWARKA,PHASE-I,NEW DELHI,PIN-110077. BY ADV SRI.TITUS MANI VETTOM, SC ``` ## **`RESPONDENT/S:`** - **`1 DR.VIJO GEORGE S/O.A.K.GEORGE,ATTUVATHALAKKAL HOUSE,KUNNUPURAM,KOTTIYAM.P.O,KOLLAM,PIN-691571.`** - **`2 DR.MADHU.K.G S/O.K.R.GOPALAKRISHNAN,KANDATHIL HOUSE,PUNNAPRA,ALAPUZHA,PIN-688004.`** - **`3 UNION OF INDIA REPRESENTED BY DEPARTMENT OF HEALTH AND FAMILY WELFARE,NIRMAN BHAVAN,NEW DELHI,PIN-110001.`** - **`4 STATE OF KERALA REPRESENTED BY ITS SECRETARY,HEALTH AND FAMILY WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001.`** - **`5 THE PRINCIPAL GOVERNMENT T.D.MEDICAL COLLEGE,ALAPUZHA-688005.`** - **`6 THE KERALA UNIVERSITY OF HEALTH SERVICES MEDICAL COLLEGE.P.O,THRISSUR,PIN680596,REPRESENTED BY ITS REGISTRAR. BY ADVS. KURIAN GEORGE KANNANTHANAM, SR. P. SREEKUMAR P.A.ABDUL JABBAR LAL K.JOSEPH`** W. A. Nos. 772 & 739 of 2015 -2- ``` SRI.V.S.SHIRAZ BAVA ROSHEN D. ALEXANDER D TINA ALEX THOMAS(K/000532/2004) HARIMOHAN(K/000327/2018) KOCHURANI JAMES(K/003502/2022) V. TEKCHAND, SR. GP. ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2022, ALONG WITH WA.739/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. Nos. 772 & 739 of 2015 -3- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, ``` ## **`1944`** ## **`WA NO. 739 OF 2015`** ``` AGAINST THE JUDGMENT WPC 7049/2013 OF HIGH COURT OF KERALA APPELLANT/S: ``` ``` THE MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR 8, DWARAKA, PHASE-I, NEW DELHI-110077. BY ADV SRI.TITUS MANI VETTOM, SC ``` ## **`RESPONDENT/S:`** - **`1 DR. BINU T.G SENIOR RESIDENT(MD CARDIOLOGY TRAINEE) DEPARTMENT OF CARDIOLOLGY, TD GOVERNMNET MEDICAL COLEGE, ALAPUZHA PIN0688006.`** - **`2 DR.RANJITH R SENIOR RESIDENT (MD CARDIOLOGY TRAINEE) DEPARTMENT OF CARDIOLOLGY, TD GOVERNMNET MEDICAL COLEGE, ALAPUZHA PIN0688006.`** - **`3 STATE OF KERALA REPRESENTED BY ITS SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM-PIN-695039.`** - **`4 DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM,PIN-695011.`** - **`5 KERALA UNIVERSITY OF HEALTH SCIENCE MEDICAL COLLEGE.P.O, THRISSUR, PIN-680596.`** - **`6 THE PRINCIPAL GOVERNMENT MEDICAL COLLEGE, ALAPPUZHA, PIN688006.`** - **`7 UNION OF INDIA REPRESENTED BY DEPARTMENT OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-PIN-110001.`** W. A. Nos. 772 & 739 of 2015 -4- ``` BY ADVS. JACOB P.ALEX JOSEPH P.ALEX P. SREEKUMAR, SC TEKCHAND, SR. GP. ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2022, ALONG WITH WA.772/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. Nos. 772 & 739 of 2015 -5- ## **J U D G M E N T** ## S. Manikumar, C. J. ## Before the writ court, petitioner in W. P. (C) No. 7010 of 2013, ## have sought for the following reliefs:- “(i) To issue a writ of certiorari or other appropriate order or direction to quash Ext.P16 in so far as it directs the College to immediately discharge the petitioners from the College; (ii) To declare that the Course being undergone by the petitioners (DM Cardiology) would be deemed to have been recognized/approved U/S. 10A of the I.M.C. Act by virtue of S.10A(5) of the Act and that the petitioners are entitled to continue and complete the Course; (iii) To declare that there is no embargo in invoking S.11(2) of the I.M.C. Act, in cases where the course has no Approval U/S. 10A of the I.M.C. Act; (iv) To declare that petitioners are entitled to continue and complete their course in D.M. cardiology in Alleppey Medical College; (v) In the alternative, to issue a writ of mandamus or other appropriate order or direction to direct the 5[th] respondent University, to invoke S.11(2) of the I.M.C. Act as earlier suggested by the 2[nd] respondent itself; (vi) To issue a writ of mandamus or other appropriate order or direction, commanding the 2[nd] respondent to recognize the course D.M. Cardiology in Government Medical College, Alleppey, from 2011 onwards.” W. A. Nos. 772 & 739 of 2015 -6- 2. Short facts leading to the filing of W. P. (C) No. 7010 of 2013 are as under:- a) According to the petitioners, they are Doctors undergoing Doctor of Medicine (D.M.) Course in Cardiology in the Government Medical College, Alappuzha. They were admitted in the year 20112012. The 1[st] petitioner was ranked 19 and the 2[nd] petitioner was ranked 20 in the entrance examination for super specialty course (Doctor of Medicine- DM). At that time, there was acute shortage of qualified hands to handle the Department of Cardiology in the Government Medical College, Alappuzha. Therefore, the Government decided to start D.M. Course in Cardiology in the said Medical College in the year 2011. The Principal, Government Medical College, the 4[th] respondent, submitted a scheme for approval of the course before the Medical Council of India (MCI), New Delhi, the 2[nd] respondent, with an intake of five students, as evidenced by Ext. P2, as early as on 25.11.2010. The college was having sufficient facilities for conducting the said course. b) Petitioners have submitted that however, on account of the delay on the part of MCI to conduct inspection, the process got W. A. Nos. 772 & 739 of 2015 -7- delayed despite repeated reminders, and therefore, the State Government was pleased to issue Ext. P7 Government Order dated 27.09.2011, granting provisional permission to start D.M. Cardiology course in the college. The 5[th] respondent University has also registered the name of the petitioners. Petitioners, all along, were under the impression that their admissions and the course were regular and had the necessary sanctions of all authorities concerned, as this was a Government Medical College and admissions were effected through the Government machinery. But the MCI issued Ext. P10 order dated 22.06.2012 granting approval to start the said course with an intake of 2 candidates only, that too for 2012-13 prospectively. c) Petitioners have further submitted that on getting Ext.P10, the State Government addressed Ext. P11 letter dated 03.07.2012 to the Central Government and the MCI that admissions were already effected in 2011 and unless permission is granted to that batch, the students (including the petitioners), admitted in 2011, would be put to lot of trouble. In response to the same, MCI issued a letter to the Government, relating to the admissions of 2011, directing the Government to approach the University and to request the University W. A. Nos. 772 & 739 of 2015 -8- to move for recognition U/S.11(2) of the Indian Medical Council Act (IMC) Act, 1956. The Government was also directed to forward Rs.75,000/- as fee for "inspection of recognition". The said amount was remitted immediately and the Government also addressed a letter to the University to move the MCI U/S. 11(2). However, now the MCI has issued Ext. P16 communication dated 07.02.2013 saying that S.11(2) cannot be invoked and directing the Principal to discharge the petitioners from the college. d) That apart, it is submitted that by virtue of 5.10A(1) of the IMC Act, 1956, the college would not have admitted the students before getting the approval of the MCI. But the fact remains that under S.10A(5) of the Act, if a 'Scheme' is submitted for the approval U/S. 10A(2) and if there is no response for 1 year, the scheme would be deemed to have been approved as submitted and the permission under S.10(A)(1) would be deemed to have been granted. This is a case which will come squarely under S.10A(5) and it is to be deemed that the course has got recognition. 3. On similar facts, petitioners in W. P. (C) No. 7049 of 2013 have sought for the following reliefs:- W. A. Nos. 772 & 739 of 2015 -9- “i. Issue a Writ in the nature of Certiorari or any other writ, order or direction calling for the records leading to the issuance of Exhibit P18 and quash the same; ii. Issue a Writ in the nature of mandamus or any other writ, order or direction commanding the respondents to permit petitioners to continue and complete the DM (Cardiology) course that they are now undergoing in the 5[th] respondent College under the 4[th] respondent University and to obtain the said 'medical qualification"; iii. Declare that the DM (Cardiology) Course now being undergone by the petitioners is deemed to have been permitted under Section 10A of the Indian Medical Council Act, 1956 by virtue of Section 10A(5): iv. Issue a Writ in the nature of mandamus or any other writ, order or direction commanding the 4[th] respondent to forward necessary application under Section 11(2) of the Indian Medical Council Act, 1956 to 6[th] respondent for getting 'recognition' to the DM Cardiology medical qualification for which petitioners are now being trained; v. Issue a Writ in the nature of mandamus or any other writ order of direction commanding the 6[th] respondent to consider and make appropriate decision on the application going to be submitted consequent to Relief No. iv.” 4. After considering the rival submissions and taking note of the decisions of the Hon’ble Apex Court in **Dr. Preeti Srivastava and Another v. State of M. P. and Others [(1999) 7 SCC 120]** and **Food Corporation of India v. M/s. Kamadhenu Cattle Feed Industries [(1993) 1 SCC 71]** , writ court, by common judgment in W. P. (C) Nos. W. A. Nos. 772 & 739 of 2015 -10- ## 7010 and 7049 of 2013 dated 06.02.2015, held as under:- “51. Section 10A of the Act provides the procedure for obtaining permission for establishment of new medical colleges/new course of study. Sections 11 to 14 deals with procedure for recognition of medical qualifications granted by different universities or medical institutions within or outside India. Section 11 provides for recognition of medical qualifications granted by the medical institutions in countries with which there is a scheme of reciprocity. Section 13 deals with recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the first or second schedule. Section 14 provides a special provision for recognition of medical qualifications granted by certain medical institutions in countries with which there is no scheme of reciprocity. The essential difference between permission under Section 10A of the Act and recognition under Section 11 was already considered by the Apex Court in **Mridul Dhar v. Union of India** [(2005) 2 SCC 65]. Recently, this aspect was taken note of in **MCI v. Rama Medical College** [(2012) 8 SCC 80]. 52. The MCI is primarily intended to prescribe, control and supervise the minimum standards of medical education and to regulate its observance. Even in Ext.P18, there is no allegation that petitioners are ineligible for securing admission to the course or the facilities in the Cardiology Department of the respondent college are inadequate with respect of the Act or PG Medical Regulations. The claim in Exts.P2 and P6 that the Cardiology Department did satisfy all the prescribed infrastructural, teaching W. A. Nos. 772 & 739 of 2015 -11- and other facilities for starting the course as prescribed under the Regulations is found true and approved by the Assessor of the MCI as evident from Ext.P11 report. The fact that the petitioners were admitted to the course were also mentioned in Ext.P11. 53. As the DM Cardiology seats in the medical college, to which the petitioners were admitted, is deemed to have been approved by the MCI under Section 10A(5) of the Act, the petitioners are entitled to complete the course/training and to obtain a medical qualification in accordance with law and thereafter are entitled to get the necessary application considered by the MCI, as envisaged in Exts.P14 and P16. Therefore, the authority of the MCI is limited to consider the application for recognition of the petitioners in accordance with the Act. 54. The MCI is incompetent to issue Ext.P18 and interdict the State or the respondent university from conferring medical qualification to the petitioners as the Act only deals with the recognition of medical qualification for the purpose of the Act. The expression “for the purpose of this Act” is used in Sections 10B(1), 10B(2), 10B(3), 11(1), 12(1), 13(1) and 14(1). As such, the MCI can, at the most, refuse to recognise a medical qualification. At any rate, the MCI cannot prevent the State/ University from conferring degree or medical qualification to a person. 55. It is relevant to note that under Section 6 of the Kerala University of Health Science Act, it is the respondent university to confer a degree. The medical qualification and the W. A. Nos. 772 & 739 of 2015 -12- recognised medical qualification are different. Similarly, conferring a medical qualification to a person who successfully completed a course and recognition of that qualification are different aspects. At any rate, the MCI cannot prevent respondents 2 to 4 from conferring the medical qualification. 56. Before starting the course, the facilities in the college was inspected by the respondent university and it was found that facilities were available. As evident from Ext.P8 and P10, the petitioners were affiliated by the respondent university and were treated as regular students. Therefore, nothing prevents the respondent university from affiliating the petitioners with effect from the original date of joining and granting a degree to them, if they have passed the examination in which they have appeared. 57. It is common knowledge that DM Cardiology is the most sought after post graduate course in medicine. The petitioners on account of their higher position in the select list got admission to DM Cardiology in Government Medical College, Alappuzha. Had they not been admitted to the said course, they could have obtained admission to some other discipline in any other medical college because of their position in the select list. Now the petitioners are facing a strange situation as they have become the victims of their excellence. That is the reason why I have said in the opening paragraph itself that these writ petitions convey the sad plight of the petitioners. 58. On a consideration of the entire materials placed on record, this Court is of the definite view that the petitioners are W. A. Nos. 772 & 739 of 2015 -13- entitled to succeed. In the result, the writ petitions are allowed. Ext.P18 in W.P(C) No.7049 of 2013 (Ext.P16 in W.P(C) No.7010 of 2013) is quashed. It is hereby declared that the DM course in Cardiology at Government Medical College, Alappuzha to which the petitioners were admitted during the academic year 20112012 is deemed to have been permitted under Section 10A(5) of the Act. As the petitioners have completed the DM Cardiology course and they have taken up the examination, the respondent university is directed to declare the result, and to grant degree in DM Cardiology course if they are qualified in the examination. If it is found that the petitioners are qualified for the award of DM Cardiology degree, the respondent university shall forward necessary application under Section 11(2) of the Act to the Government of India, for getting recognition to the DM Cardiology medical qualification for which, the petitioners have acquired on the basis of the result so declared.” 5. Ext. P16 letter dated 07.02.2013 of the Medical Council of India addressed to the Principal Secretary, Department of Health & Family Welfare, Thiruvananthapuram, sought to be quashed in W. P. (C) No. 7010 of 2013, is reproduced:- W. A. Nos. 772 & 739 of 2015 -14- **==> picture [396 x 615] intentionally omitted <==** W. A. Nos. 772 & 739 of 2015 -15- **==> picture [380 x 609] intentionally omitted <==** W. A. Nos. 772 & 739 of 2015 -16- **==> picture [429 x 402] intentionally omitted <==** 6. On this day, when the matter came up for hearing, though Mr. Titus Mani Vettom, learned Standing Counsel for the appellant, made submissions on the grounds raised, we are not inclined to accept the same, in view of the submission of Mr. P. Sreekumar, learned Standing Counsel for the University, that acting on the directions issued by the writ court, in the common judgment in W. P. (C) Nos. 7010 and 7049 of 2015 dated 06.02.2015, the University, after successful completion W. A. Nos. 772 & 739 of 2015 -17- of the course of the writ petitioners, who have joined DM Cardiology course in the year 2011, in Government Medical College, Alappuzha, has already published the results and awarded degree certificates. 7. Mr. P. Sreekumar, learned Standing Counsel for the University, also submitted that as directed by the writ court, University has also forwarded necessary application under 11(2) of the then MCA Act to Government of India for granting recognition to DM Cardiology course, which the writ petitioners have acquired on the basis of the results so declared. He further added that above application was kept pending by the Government of India. 8. Learned Standing Counsel for the University, further submitted that for the subsequent academic year 2012-2013, the above said course has been recognized and being continuing in the college. Many students have undergone the course and certificates are issued by the University. 9. Appellant herein is the Medical Council of India whose contention is that no clear permission was granted for starting the DM Cardiology course. W. A. Nos. 772 & 739 of 2015 -18- 10. Giving due consideration to the grounds raised, we find that the writ court, after considering the entire material, has passed a well considered order, and in such circumstances, while quashing Ext. P18 in W. P. (C) No. 7049 of 2013 and Ext. P16 in W. P. (C) No. 7010 of 2013, declared that the DM Course in Cardiology in Government Medical College, Alappuzha, to which the writ petitioners were admitted to in the academic year 2011-2012, is deemed to have been permitted under Section 10A(5) of the Act. 11. Though the writ appeals have been filed on 23.03.2015, and though delay of 11 days in W. A. No. 772 of 2015 was condoned as early as on 11.08.2015, and directed to be posted along with W. A. No. 739 of 2015, filed with a delay of eleven days, Medical Council of India, has not moved the appeals for admission, for more than seven years. It is too late in the day to contend that the said course in Government Medical College, Alappuzha, was not permitted to be started by the MCI. 12. In view of the above discussion and giving due consideration to the well considered judgment of the writ court, we are not inclined to interfere with the common judgment of the learned Single Judge in W. A. Nos. 772 & 739 of 2015 -19- W. P. (C) Nos. 7010 and 7049 of 2013 dated 06.02.2015, impugned in the instant appeals. Accordingly, the writ appeals are dismissed. Though instant writ appeals have been dismissed on merits, Mr. Titus Mani Vettom, learned Standing Counsel for the MCI, sought for liberty to keep the issue with respect to deemed recognition open. We are not inclined to grant any liberty for the reason that under the present Medical Commission Act, 2019, there is no such deemed provision for granting permission. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE