BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/08/2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE M.DURAISWAMY Writ Appeal (MD)No.74 of 2010 and M.P.(MD)No.1 of 2010 Medical Council of India, rep.by its Secretary, Pocket-14, Sector-8, Dwarka, New Delhi-110 077. ... Appellant/ 2nd Respondent vs 1.The Chairman, Sree Mookambika Institute of Medical Sciences, Velaytham Pillai Memorial Hospital Complex, Padaninalam, Kulasekharam, runb y Padanilam Welfre Trust, Kulasekharam, Kanyakumari District. ... Respondent-1/ Petitioner 2.The Union of India, rep.by its Secretary, Department of Health, Central Secretariat, New Delhi. 2.The State of Tamil Nadu, rep.by its Secretary, Health & Family Welfare Department, Fort St.George, Chennai-600 009. 4.The Director of Medical Education, Directorate of Medical Education, 162, Poonamallee High Road, Kilpauk, Chennai-600 010. 5.The Secretary, Selection Committee, Directorate of Medical Education, 162, Poonamallee High Road, Kilpauk, Chennai-600 010. 6.The Tamil Nadu Dr.MGR Medical University, rep.by its Registrar, P.B.No.1200, No.69 Anna Salai, Guindy, Chennai-600 032. ... Respondents-2 to 6/ Respondents-1, 3 to 6 Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 30.09.2009, made in W.P.(MD)No.7265 of 2009. !For Appellant ... Mr.V.P.Raman ^For Respondent-1 ... Mr.Isaac Mohanlal For Respondent-2 ... Mr.K.K.Senthilvelan, Asst.Solicitor General. For Respondents 3 to 5 ... Mr.D.Gandhi Raj, to 5 Government Advocate. For Respondent-6 ... Mr.C.Karthik :JUDGMENT
D.MURUGESAN,J
This writ appeal, filed at the instance of the Medical Council of India, seeks
to challenge the order in the writ petition holding that the Medical Council of
India has no role in the matter of admission in medical colleges under the
provisions of the Indian Medical Council Act, 1956 (hereinafter referred to as
“the Act”).
2.The facts giving rise to the present appeal are as follows:
(a)The 1st respondent Shri Mookambika Institute of Medical Sciences,
(hereinafter referred as “the institute”), is owned and administered by a Trust
known as ‘Padnilam Welfare Trust’. The said Trust had established the institute
in question and the said institute had been recognised as a Linguistic Minority
Educational Institution. It offers M.B.B.S. Degree Course of 5-1/2 years
duration from the year 2006, with annual intake capacity of 100 students.
Though the institute was entitled to admit students for all the 100 seats by
itself, by virtue of an Agreement entered by the Trust with the State
Government, it had accepted to provide 50% of the seats from the total intake to
be filled-in by the candidates sponsored by the State Government through
counselling with a further right to fill-up the remaining 50% of seas as
management quota.
(b)During the academic year 2008-2009, the institute filled all the
50 seats under the management quota. Though the Selection Committee,
constituted by the State Government, sponsored 50 candidates informing the last
date for joining as 20.07.2008, 11 candidates did not join and the same was
intimated to the Selection Committee. Thereafter, the Selection Committee
sponsored another set of candidates on 26.09.2008 informing the joining date as
29.09.2008. As there were still vacancies, a further list was sent by the
Selection Committee on 29.09.2008 informing the joining date as 30.09.2008.
(c)The contention of the institute is that out of the 50% of the
seats meant for the State Government, 43 candidates only joined before the cut-
off date, namely 30.09.2008 and on that date, the institute admitted seven
candidates, namely the lapsed seats of the Government quota, on its own. It is
contended by the institute that these seven candidates were admitted as against
the Government seats and they were treated for all purposes as government
candidates and fee applicable to the Government sponsored candidates alone were
collected.
(d)During the academic year 2009-2010 the institute had again
accepted the seat sharing agreement of 50% : 50% as management seats and
Government Seats and the institute filled all the 50 seats to which it was
entitled to as management seats. At that relevant point of time, the Medical
Council of India addressed a letter, dated 06.02.2009, to the Secretary to
Government, Health and Family Welfare Department and the Director of Medical
Education, the 3rd and 4th respondents herein, stating that the institute had
admitted only 43 candidates under the Government quota and it admitted 57
candidates as against the management quota of 50 seats and the excess admission
under the management quota, namely seven seats for the academic year 2008-2009,
should be reduced as against the management quota for the academic year 2009-
2010 and correspondingly it should increase allocation of Government quota seats
for that academic year.
(e)In view of the above communication, the State Government in
Health and Family Welfare Department, in their letter dated 06.07.2009,
addressed the Medical Council of India seeking for a clarification stating that
even during the period 2006-2007 some of the seats meant for Government quota
were filled-up by the colleges themselves and therefore to clarify as to whether
those seats should also be surrendered to the Government in the subsequent
years. In response to the said clarification sought for by the State Government,
the Medical Council of India, by the order dated 23.07.2009, directed that the
institute in question should surrender seven seats to the Government in addition
to the 50 seats for admission under Government quota during the academic year
2009-2010. This order was questioned by the 1st respondent institute in the
writ petition and it was allowed.
(f)While allowing the writ petition, the learned Judge has also gone
into the question as to the power of the Medical Council of India to direct the
institute to surrender the corresponding seats filled-up by the colleges
treating those seats as the lapsed seats and held that it has no power under
the Act to issue such directions. This appeal is basically filed questioning
that finding of the learned Judge.
3.It may be pointed out that the learned Judge has also held that in
the light of the judgments of the Supreme Court in Mridul Dhar vs. Union of
India, reported in (2005) 2 SCC 65 and in Al-Karim Educational Trust vs.
Medical Council of India, reported in 2005 (13) SCC 455, the surrender of seats
to the Government would be available only in case the management admitted
candidates in excess of the prescribed management quota seats. The learned
Judge has also rejected the contention of the learned counsel for the institute
that after the judgment of Supreme Court in P.A.Inamdar vs. State of
Maharashtra, reported in AIR 2005 SC 326, the question of surrender of the
corresponding number of lapsed seats to the Government would not arise. It is
relevant to point out that as against those findings, the institute has not
preferred any appeal.
4.We have heard Mr.V.P.Raman, learned counsel appearing for the
appellant, Mr.Isaac Mohanlal, learned counsel for the institute,
Mr.K.K.Senthilvelan, learned Assistant Solicitor General, for the 2nd
respondent, Mr.D.Gandhiraj, learned Government Advocate, for respondents 3 to 5
and Mr.C.Karthik, learned counsel appearing for respondent No.6.
5.As the appeal is at the instance of the Medical Council of India,
particularly concerning about the finding of the learned Judge as its
jurisdiction to issue the order impugned in the writ petition, Mr.Isaac Mohanlal
has contended that this Court can also consider the applicability of the
judgment of the Apex Court in P.A.Inamdar case. To decide the issue, we may also
consider those submissions.
6.The Apex Court in Mridul Dhar Case, while considering a similar
question, in paragraph 35(11) of its judgment has observed that
“If any private medical college in a given academic year for any reason
grants admission in its management quota in excess of its prescribed quota, the
management quota for the next academic year shall stand reduced so as to set off
the effect of excess admission in the management quota in the previous academic
year.”
In Al-karim case also, the Apex Court has made a similar finding.
7.Placing reliance on the above two judgements, Mr.V.P.Raman,
learned counsel appearing for the appellant, would submit that inasmuch as the
institute had filled 57 seats during the academic year 2008-2009, it should
surrender seven seats to the Government for the subsequent academic year. This
submission did not find favour in the writ petition. According to the learned
Single Judge, only in the event the management had filled-up the candidates over
and above the management quota, the proportionate number of seats should be
surrendered to the Government in the subsequent academic year. In our opinion,
the said finding needs no interference. Sub-paragraph (11) of paragraph 35 of
Mridul Dhar’s case directs that only when a management grants admission in its
management quota in excess of its prescribed quota, the management quota for the
next academic year shall stand reduced so as to set-off the effect of excess
admission in the management quota for the previous academic year. In other
words, the reduction of seats to set-off the effect of excess admission will be
necessary only in the event any excess admission is made over and above the
management quota.
8.In the instant case, for the academic year 2008-2009, the
institute, though is entitled to admit 100 seats by itself, by virtue of the
agreement with the State Government, had surrendered 50 seats to be filled-in
among the candidates sponsored by the Selection Committee constituted by the
State Government for the purpose. Those seats can be called as ‘government
quota’ and the institute is entitled to fill-up 50 seats as management quota.
There is no dispute that for the academic year 2008-2009, the institute had
filled initially only 50 seats available under management quota. The Selection
Committee sponsored 50 seats as agreed upon between the institute and the
Government. By some reason or the other, five candidates did not join and two
candidates, who joined, had left the college. The last date for filling-up of
all the seats, as directed by the Supreme Court, was 30.09.2008. The management
had also periodically intimated the Selection Committee as to the vacancy in the
Government quota. Even after the candidates sponsored by the Selection
Committee, there were seven lapsed seats on the last date for admission, namely
the cut-off date for admission fixed by the Hon’ble Apex Court. These seats
were filled by the institute as the seats should not go waste. It is the
specific contention of the institute that only the fees applicable to the
Government quota seats alone were collected. In that view, it cannot be called
that the institute had filled more than 50% of the seat to which it was entitled
to fill as management quota. The institute had admitted only 50 candidates as
against management quota and the remaining seven seats should be considered as
lapsed seats which were available to the Government and only for the reason that
the candidates sponsored by the Selection Committee did not join within the last
date for joining, those seats were filled-up by the institute.
9.By applying paragraph 35(ii) of Mridul Dhar case, the excess
admission must be over and above the management quota. For instance, if the
management had filled more than 50 seats under Management quota apart from
filling-up the entire seats earmarked for the Government quota which will result
in the admission of more than sanctioned strength of 100 seats. In view of the
specific directions of the Supreme Court, by which the question of reduction of
seats so as to set-off in the subsequent year, would be available only when
there was excess of admission in the management quota, we do not find any
reason to interfere with the finding of the learned Single Judge in this regard.
10.Mr.Isaac Mohanlal, learned counsel appearing for the institute,
also submitted that after the judgment of the Supreme Court in Islamic Academy
of Education vs. State of Karnataka, reported in (2003)6 SCC 697, the institute
need not even admit the 50% of the seats as Government quota as it has been held
that it would be an interim arrangement. In our opinion, the said submission
cannot be accepted for the simple reason that it is the 1st respondent institute
which had entered into an agreement with the Government for seat sharing and
such arrangement is certainly binding on the 1st respondent institute. Having
entered into an agreement, the institute cannot now turn around and say that it
would not entertain the Government seats in view of the subsequent judgment of
the Supreme Court. Hence the said contention cannot be entertained.
11.This takes us to the next submission as to whether the Medical
Council of India has any role to play in regulating the admission in medical
colleges. In exercise of the power under Section 33(fc) of the Indian Medical
Council Act, 1956, the Medical Council, with the previous sanction of the
Central Government, may make regulations to provide the criteria for identifying
a student who has been granted a medical qualification referred to in the
Explanation to sub-section (3) of Section 10B of the Act. Section 10B of the
Act relates to non-recognition of medical qualifications in certain cases. Sub-
section (1) of that section states that where any medical college is established
except with the previous permission of the Central Government in accordance with
the provisions of section 10A, no medical qualification granted to any student
of such medical college shall be a recognised medical qualification for the
purposes of the Act. Explanation to the said section says that
“for the purposes of this section, the criteria for identifying a student who
has been granted a medical qualification on the basis of such increase in the
admission capacity shall be such as may be prescribed.”
12.By virtue of the above power, the Medical Counsel, with the
previous sanction of the Central Government, made The Medical Council of India
(Criteria for Identification of Students Admitted in Excess of Admission
Capacity of Medical Colleges) Regulations, 1997. Regulation 3(b) relates to
‘Admission Capacity’ as referred to in Explanation 2 of Section 10A of the Act
relating to permission for establishment of new medical college, new course of
study, etc. Regulation 3(c) relates to the competent authority to implement
the Regulations meaning thereby the Central Government or State Government or
medical college to allot students for admission to various medical colleges in a
State or Union Territory. Regulation 4 relates to sanctioned intake capacity in
medical colleges. By that regulation, the Council shall every year, prior to
the start of undergraduate/postgraduate academic medical course, intimate the
medical colleges and State/Union Territory Governments, the sanctioned intake
capacity of the students for undergraduate/postgraduate courses in medical
colleges. In terms of Regulations 5 and 7, the medical colleges shall furnish
year-wise list of students admitted to the council within three months from the
closure of admission. Regulation 8 relates to matters relating to excess
admission to be decided by the Council. That regulation contemplates that all
matters relating to excess admission of students shall be decided by the
Council.
13.Going by the above provisions, the Medical Council would
certainly have the power to regulate the admissions of students in the medical
colleges within the sanctioned intake capacity and if the admission is made over
and above the sanctioned strength, it would certainly have the power to take
appropriate action against the concerned. In our opinion, these regulations
would be available to the Medical Council only in the event the admission is
made over and above the sanctioned strength. For example, if an institute had
admitted more than 100 candidates, namely the sanctioned strength, it would
certainly refuse to recognise the admissions made over and above the sanctioned
intake. The power to The power to take such action is not available if the
seats are filled within the sanctioned strength.
14.The question of 50% of seats to be considered as Government quota
is only by virtue of the agreement between the institute and the State
Government. That seat sharing is entirely between the institute and the
Government and for that purpose the Medical Council has no role to say that as
to whether such seat sharing could be made or not and if such seat sharing could
be made what is the percentage of seat sharing, etc. The power that will be
available to the Medical Council is not to find out as to whether the institute
admits students according to the seat sharing agreement entered with the State
Government but only to the extent as to whether the institute has admitted more
than the sanctioned strength. To this extent, the Medical Council has power
and not otherwise.
15.With the above modification in the finding of the learned Single
Judge, the writ appeal is disposed of. No order as to costs. Connected
M.P.(MD)No.1 of 2010 is closed.
gb
To
1.The Secretary,
Union of India,
Department of Health,
Central Secretariat,
New Delhi.
2.The Secretary,
Government of Tamil Nadu,
Health & Family Welfare Department,
Fort St.George,
Chennai-600 009.
3.The Director of Medical Education,
Directorate of Medical Education,
162, Poonamallee High Road,
Kilpauk, Chennai-600 010.
4.The Secretary,
Selection Committee,
Directorate of Medical Education,
162, Poonamallee High Road,
Kilpauk, Chennai-600 010.