High Court Kerala High Court

Deepa Thomas vs Medical Council Of India on 16 September, 2010

Kerala High Court
Deepa Thomas vs Medical Council Of India on 16 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 34270 of 2009(C)


1. DEEPA THOMAS, 2ND MBBS,
                      ...  Petitioner
2. LAVEENA V.ANTONY, 2ND MBBS,
3. JISHA JEEV K., 2ND MBBS,
4. NIDHI GIRVASIS, 2ND MBBS,
5. JOBBY JOSE, 2ND MBBS,

                        Vs



1. MEDICAL COUNCIL OF INDIA,
                       ...       Respondent

2. UNIVERSITY OF CALICUT, THENJIPALAM,

3. THE PRINCIPAL, JUBILEE MEDICAL MISSION

                For Petitioner  :SRI.GEORGE POONTHOTTAM

                For Respondent  :SRI.MURALI PURUSHOTHAMAN

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :16/09/2010

 O R D E R

Thottathil B.Radhakrishnan

&

P.Bhavadasan, JJ.

= = = = = = = = = = = = = = = = = = = = = = = =

W.P.(C).Nos.34270/2009-C, 34278/2009-D,

34285/2009-E & 34343/2009-K,

13810/2010-A, 13817/2010-B, 13818/2010-B,

13819/2010-B & 21534/2010-N

and also 34389/2009-P and 34941/2009-K

= = = = = = = = = = = = = = = = = = = = = = = =

Dated this the 16th day of September, 2010.

Judgment

“CR”

Thottathil B.Radhakrishnan, J.

1.All these writ petitions are filed by students

admitted by different self financing Medical

Colleges for the MBBS Course for the year 2007-

08. WP(C).34270/2009 is filed by five students of

Jubilee Medical Mission College and Research

Institute. WP(C).34278/2009 is filed by fifteen

students of Amala Institute of Medical Sciences.

WP(C).34285/2009 is filed by eight students of

WPC34270/09 & con.cases -: 2 :-

Malankara Orthodox Syrian Church Medical College

and WP(C).34343/2009 is filed by twenty-four

students of Pushpagiri Institute of Medical

Sciences and Research Centre. WP(C).Nos.13810 and

13819 of 2010 are filed by two among the

petitioners in WP(C).34278/2009(Malankara) on a

plea that they have a further ground peculiar to

the facts of the individual claims. On similar

grounds, WP(C).Nos.13817 and 21534 of 2010 are

filed by the 4th and 13th petitioners respectively

in WP(C).34343/2009(Pushpagiri) and WP(C).

Nos.13818/2010 is filed by the 5th petitioner in

WP(C).34285/2009(Malankara). We record the

submission that the 5th petitioner in WP(C).

34278/09 has left the College, having obtained a

transfer certificate.

2.WP(C).34389/2009 is filed by nine students and WP

(C).34941/2009 is filed by eighteen students of

M.E.S.Medical College.

3.In so far as the self financing education sector

WPC34270/09 & con.cases -: 3 :-

in Kerala is concerned, Act 19 of 2006[the Kerala

Professional Colleges or Institutions(Prohibition

of Capitation Fee, Regulation of Admission,

Fixation of Non-Exploitative Fee and Other

Measures to Ensure Equity and Excellence in

Professional Education) Act, 2006] provides for

the constitution of an Admission Supervisory

Committee and a Fee Regulatory Committee.

(Sections 4 and 6).

4.The M.E.S.Medical College has entered into an

agreement with the Government. That is Ext.P2 in

WP(C).34389/2009. Clauses 6 and 7 thereof

regulate the modalities for admission. It is

pointed out that the said agreement stands

approved by the Admission Supervisory Committee.

Apart from that, the learned counsel for the

M.E.S.Medical College also points out that his

client is a minority institution and would be

governed by the provisions of the decision of the

Apex Court in P.A.Inamdar v. State of

Maharashtra, (2005) 6 SCC 537. He made particular

WPC34270/09 & con.cases -: 4 :-

reference to paragraph 137 of that judgment, at

page 604 of that reported version, to say that

the required bench mark is only that the

admission procedure adopted by a private

institution or group of institutions ought to be

one fulfilling the test of being fair,

transparent and non-exploitative.

5.With the aforesaid, we proceed to note that the

challenge in these writ petitions is against the

decision of the Medical Council of India

directing that the writ petitioners be discharged

on the ground that they do not satisfy the

eligibility conditions and selection conditions

prescribed by Regulations 5(2) and 5(5)(ii) of

the MCI(Graduate Medical Education) Regulations,

1997, hereinafter referred to as the “MCI

Regulations”, which, among other things, enjoin

that in States having more than one

university/board/examining body conducting the

qualifying examination(or where there is more

than one medical college under the administrative

WPC34270/09 & con.cases -: 5 :-

control of one authority), a competitive entrance

examination should be held so as to achieve a

uniform evaluation and in case of admission on

the basis of competitive entrance examination in

terms of that clause, a candidate must have

passed in the subjects of Physics, Chemistry,

Biology and English individually and must have

obtained a minimum of 50% of marks taken together

in Physics, Chemistry and Biology at the

qualifying examination and in addition, must have

come in the merit list prepared as a result of

such competitive entrance examination by securing

not less than 50% marks in Physics, Chemistry and

Biology taken together in the competitive

examination. To put it pithily, a competitive

examination should be held to achieve a uniform

evaluation and the candidate should have obtained

50% marks in Physics, Chemistry and Biology at

the qualifying examination and also not less than

50% marks in Physics, Chemistry and Biology,

taken together, in the competitive examination.

The dual requirement in terms of the Regulations

WPC34270/09 & con.cases -: 6 :-

is that the candidate should have 50% marks in

the qualifying examination and also 50% marks in

the competitive examination.

6.It is not in dispute that none of the petitioners

has secured 50% marks in the competitive

examination. This is the ground on which the

Medical Council of India has found them to be

ineligible to continue with the MBBS Course.

7.We may immediately notice that the learned senior

counsel for Jubilee, Amala, Malankara and

Pushpagiri Medical Colleges has addressed an

argument that on the basis of the prospectus and

the modality adopted by them for selection, they

have a procedure whereby they considered the

marks obtained by the candidate in the

competitive examination and in the qualifying

examination by scaling down the total to 50% and

therefore, that is a methodology which cannot be

treated as contradicting the MCI Regulations. We

would also note that the petitioners in WP(C).

WPC34270/09 & con.cases -: 7 :-

Nos.13810, 13817, 13818, 13819 and 21534 of 2010

contend that though they had not obtained 50% in

the examination conducted for admission, by the

self financing Medical Colleges in the State,

they had obtained more than 50% in the

competitive entrance examinations conducted

elsewhere, that is, for different other

institutions and therefore, could be considered

to be eligible at par with those who had obtained

50% in the entrance examination conducted for the

self financing colleges in Kerala. They

respectively claim to have achieved such merit in

the entrance test for CMC Ludhiana, in Karnataka

Common Entrance Examination for private colleges

or in the Common Entrance Examination conducted

by Government of Kerala’s Commissioner for

Entrance Examinations. We also note that the

common admission tests for the self financing

colleges were conducted under the control of the

Admission Supervisory Committee constituted under

Act 19/2006.

8.In the light of the what is noted above, the fact

WPC34270/09 & con.cases -: 8 :-

remains that the competitive entrance examination

for admission to the self financing colleges was

conducted under the control of the Admission

Supervisory Committee constituted under Act

19/2006. However, by any means, none among the

petitioners had obtained 50% marks in the

competitive entrance examination. The Articles of

Agreement between the Government and the self

financing medical colleges provides clauses 6 and

7 regarding filling up of seats. 20% of the seats

shall be filled up by the educational agency on

the basis of inter se merit and eligibility from

the list published by the Commissioner of

Entrance Examinations from among the applications

received by the educational agency or on the

basis of qualifying marks of eligibility

examinations as fixed by the Medical Council of

India or from the list prepared on the basis of

any admission test. 15% of the seats shall be

filled up by the educational agency from the list

published by the Commissioner of Entrance

Examinations from the applications received by

WPC34270/09 & con.cases -: 9 :-

the educational agency or on the basis of

qualifying marks of eligibility examinations as

fixed by the Medical Council of India or from the

list prepared on the basis of any admission test.

The said provisions necessarily require that the

candidate has to undergo the process of an

eligibility examination. The Government, in

making that agreement, could not have, in any

manner, got over the Regulations of the Medical

Council of India which are issued under a Central

Act and which has uniform application through out

India. By now, the question whether those

regulations are mandatory does not continue to be

res integra. In relation to admissions to the

MBBS Course for 2006-07, in R.D.Gardi Medical

College, Ujjain, the question of such eligibility

and the binding nature of the MCI Regulations

arose for decision. The High Court of Madhya

Pradesh at Jabalpur, by judgment dt.14.7.2008 in

WP(C).13379/2007 and connected cases, held that

the regulations are mandatory. In appeals carried

against that judgment, Civil Appeal Nos.5518-5519

WPC34270/09 & con.cases -: 10 :-

of 2008, the Hon’ble Supreme Court of India

issued an order on 4th September, 2008 (Ext.P8 in

WP(C).34285/09). In that order(Monika Ranka and

others v. Medical Council of India and others),

the Apex Court noted that the regulation of the

MCI had stated that the candidates should have

secured more than 50% marks in the entrance

examination. The Apex Court maintained the

judgment of the Madhya Pradesh High Court as

regards the principle laid down therein. We note

the said judgments of the Madhya Pradesh High

Court and the Apex Court affirming it, at this

stage, to notice that the binding nature of the

MCI Regulations requiring 50% marks in the

entrance examination is beyond challenge.

9.The following are the findings recorded by the

Jabalpur Bench of the High Court of Madhya

Pradesh in the order dt.14.7.2008 in Writ

Petition No.13379/2007 and connected cases:

1.The Regulations framed by the MCI are

WPC34270/09 & con.cases -: 11 :-

mandatory in nature.

2.The MCI as per the direction given by the
Division Bench of this Court in Writ
Petition No.16146/2006 was entitled to take
appropriate action against the students.

3.The directions given by the Apex Court in
S.L.P.(C)No.16168/2006 pertain to a
different arena and does not curtail the
power of the MCI to take action.

4.The contentions that the students could be
admitted on the basis of the marks obtained
in 10+2 examination is sans substance in
view of the decision rendered in State of
M.P. v. Gopal D.Tirthani,
(2003) 7 SCC 83 as
far as the State of M.P. is concerned.

5.Submission that the students and the
colleges were in lack of knowledge with
regard to the marks secured by the students
is bereft of any substratum and deserves to
be repelled.

6.The MCI does not have any authority to relax
the qualification as such a provision is
absent in the 1997 Regulations.

WPC34270/09 & con.cases -: 12 :-

7.The plea that some of the students were
admitted as NRI is not substantiated and, in
fact, what is discernible is that some
students were admitted against NRI seats
and, therefore, the principles laid down in
respect of students who are NRI as laid down
in P.A.Inamdar v. State of Maharashtra, AIR
2005 SC 3226 is not applicable to the case
at hand.

8.The concept of equity and legitimate
expectation does not arise in the present
batch of the cases as the Rule of Law should
be allowed to prevail and cannot be
permitted to succumb.

9.The order of discharge passed by the MCI in
respect of all the students is valid barring
that of Ku.Viny Lahiri subject to
verification of her marks obtained in PMT by
the MCI. If she has secured 50% marks in the
PMT she would be permitted to complete the
course.

10.The students who had been admitted to the
course without requisite marks have suffered
at the end of the respective colleges and,
therefore, the said respondent colleges are
directed to refund the fee with interest at

WPC34270/09 & con.cases -: 13 :-

the rate of 8% per annum within a period of
six weeks.

We are in complete agreement with the principles

and findings on the issues of law as are

contained in the aforesaid order of the Madhya

Pradesh High Court. Not only that, such

principles stand affirmed by the Apex Court in

Monika Ranka(supra).

10.In fact, even before us, all that was attempted

to be shown on behalf of the Jubilee, Amala,

Malankara and Pushpagiri and their students was

only that the terms of the prospectus issued by

those establishments showed a peculiar modality

of selection and fixing the marks. We have

examined the said formula as projected by the

learned senior counsel and are of the firm view

that it does not generate a situation where a

student who does not get 50% marks in the

competitive entrance examination gets excluded

from the field of choice. So much so, we cannot

WPC34270/09 & con.cases -: 14 :-

but hold that even as regards the students of

those institutions, the MCI Regulations would be

fulfilled only if each of them has 50% marks in

the competitive entrance examination.

11.The plea of a few students, of Amala, Malankara

and Pushpagiri, who claim to have secured more

than 50% marks in entrance examination conducted

by CMC, Ludhiana, in the Karnataka Common

Entrance Examination for private colleges and the

Common Entrance Examination conducted by

Government of Kerala’s Commissioner for Entrance

Examinations does not stand. This is because such

claim is on the basis of success in a different

competition and if we were to accept that, we

would be compelling the authorities to act on the

results of those entrance tests for admission to

yet another institution in relation to which the

candidate admittedly did not secure 50% marks in

the competitive entrance examination. We are

fortified in this view by the decision of the

Apex Court in Islamc Academy of Education v.

WPC34270/09 & con.cases -: 15 :-

State of Karnataka, (2003) 6 SCC 697 wherein the

Apex Court stated in paragraph 16 that the

management could select students, of their quota,

either on the basis of the common entrance test

conducted by the State or on the basis of a

common entrance test to be conducted by an

association of all colleges of a particular type

in that State and that the common entrance test

held by the association must be for admission to

all colleges of that type in the State. It was

further specifically laid down that the option of

choosing, between either of these tests, must be

exercised before issuing of prospectus and after

intimation to the concerned authority and the

Committee set up following that judgment. This

clearly rules out the possibility of one

institution being told to admit a student on the

basis of the marks obtained at the competitive

entrance examination conducted by yet another

institution, even the identity of which was not

conceived of while issuing the prospectus.

Therefore, we find that the petitioners in WP(C).

WPC34270/09 & con.cases -: 16 :-

Nos.13810, 13817, 13818, 13819 and 21534 of 2010

are not entitled to any special consideration on

the basis of their pleadings in those writ

petitions.

12.We would now consider the plea of the MES

Medical College and its students to the effect

that in terms of clauses 6 and 7 of the agreement

between the State Government and the institution,

the establishment should be treated to have made

a bonafide exercise in having admitted the

students, having particular regard to its

minority status and also because, no complaint

has been raised by any student regarding the

admissions already made. Clauses 6 and 7 provide

only for admission of students on the basis of

inter se merit and ability. This can only be in a

manner not offending the mandatory terms of the

MCI Regulations. If the argument of the

petitioners and the MES Medical College in this

regard is accepted, it would be permitting that

institution and students to overreach the

WPC34270/09 & con.cases -: 17 :-

regulations made by the MCI on the basis of the

agreement between the State Government and the

institution. Even if such provisions in those

clauses are ratified by the Admission Supervisory

Committee under the State Act(Act 19 of 2006),

that does not, in any manner, impair the

overreaching effect of the Regulations issued by

the MCI in terms of the MCI Act which is a

central legislation. We are clear in our mind

that the State Government by including those

clauses 6 and 7 in the agreement which is Ext.P2

in WP(C).34278/2009, could not have intended to

violate the mandatory requirements of the MCI

Regulations.

13.With the aforesaid, all that survives for

consideration is a very persuasive plea made by

the learned counsel for the petitioners in all

the writ petitions and also the learned counsel

appearing for the managements that on equitable

considerations, the students having been admitted

in 2007-2008 be permitted to continue with their

WPC34270/09 & con.cases -: 18 :-

education for MBBS. In support, strong reliance

was placed on behalf of the petitioners and the

management to the order of the Apex Court in

Monica Ranka’s case (supra) and also the later

order in that case which is Ext.P9 in WP(C).

34285/2009. In Monica Ranka, it was noted that

there was nothing on record to show that the

appellants before the Apex Court were informed of

the marks secured by them in the entrance

examination. On that factual matrix, the Apex

Court indulged to give them the peculiar personal

relief of permitting them to continue with the

course. Reliance was also made to the judgment

dt.21.1.2009 of the Delhi High Court in WP(C)

3109/08 and connected cases which is Ext.P10 in

WP(C)34285/09, in support of the students and the

management. The managements, in so far as the

Jubilee, Amala, Malankara and Pushpagiri are

concerned, have also further stated through their

learned counsel that there could be even

surrender of seats as has been done in the case

of Madhya Pradesh High Court as reflected by the

WPC34270/09 & con.cases -: 19 :-

orders in Monica Ranka’s case, Exts.P8 and P9 in

WP(C)34285/09. However, the learned counsel for

the MES Medical College states that they may not

be compelled to surrender seats having regard to

the fact that they had allotted 50% of the seats

in favour of the State quota in terms of the

agreement that it had with the State Government.

14.Per contra, the learned counsel for the MCI made

specific reference to different decisions,

including Mahatma Gandhi University v. Gis Jose,

(2008) 17 SCC 611, Regional Officer, CBSE v. Ku.

Sheena Peethambaran, (2003)7 SCC 719, Medical

Council of India v. Manas Ranjan Behera, (2010) 1

SCC 173 and states that in the case in hand, what

is being sought for is only application of

misplaced equities and sympathy and that there

cannot be any affront to the statute law under

the guise of enforcing equitable considerations.

The learned counsel also cautioned that even the

power of the Apex Court under Article 142 to do

complete justice between parties has been

WPC34270/09 & con.cases -: 20 :-

repeatedly held as not extending to empower the

court to act in affront to the particular

statutory provisions. Reference was also made to

the decision of the Gujarat High Court

[SCA.No.9526/2009(Ext.R-1/L in WP(C).34285/2009)]

in which the request for extending such equitable

consideration was specifically refused.

15.Having given our anxious consideration to the

facts and circumstances of the cases in hand, we

find different important factors emerging. As

already found by us, the admissions of the

students in question are in clear violation of

the MCI Regulations, the norms of which are

mandatory and such mandatory nature stands

recognised by the Apex Court as part of law laid

by it. Consistency in the matter of application

of Regulations to higher education, including

medical education is a matter that is salutary.

Any dilution to that will adversely affect the

fundamental needs of the society for quality in

health sector and would undermine the purpose of

WPC34270/09 & con.cases -: 21 :-

such Regulations. Such indulgence would also

disturb the uniform application sought to be

achieved by enforcement of such regulations. At

any rate, equity cannot override statute and we

are sure that the constitutional power of the

writ court under Article 226 of the Constitution

does not enable it to issue any direction in

contradiction to the mandatory statutory

regulations which govern a particular fact

situation and which is part of the law of the

land.

16.Now, we had also heard the learned counsel for

the Calicut University which had filed a counter

affidavit in one of the matters. It stands to say

that in terms of the decisions of this Court as

also the Apex Court, the Universities are free to

make their own regulations in relation to

admissions and that in terms of the Regulations

of the Calicut University, it is the independent

requirement that the candidate should have

obtained 50% marks in the qualifying competitive

WPC34270/09 & con.cases -: 22 :-

examination. He further argued that any

interference with the decision of the Medical

Council of India would not, in any manner,

preclude the right and authority of the

University to stand by the decision it has taken

or to take any decision against the students in

accordance with its Regulations. We record that

we have not touched upon any such issue since

these writ petitions are filed challenging only

the decision of the MCI.

17.In so far as WP(C).34389/2009 and WP(C).

34941/2009(M.E.S.Medical College) are concerned,

the learned counsel appearing for the institution

attempted to point out that apart from one

student, the MCI had not reported to the College

the disqualification incurred by any of the other

students, for more than one year, from the list

sent by the College to the MCI. This is strongly

countenanced by the learned counsel for the MCI

by stating that this was an issue pointed out

during an earlier round of litigation in which

WPC34270/09 & con.cases -: 23 :-

the managements were the writ petitioners and as

of now, there is no exchange of pleadings between

the College and the MCI which obliges the MCI to

meet any such submission. The learned counsel for

the MCI also states that in the earlier round,

the materials with the MCI disclosing even the

despatch of materials from its office to the MES

Medical College were made available to the court.

We do not deem it necessary or proper for us to

ponder any further into such a controversy

between the management and the MCI for the simple

reason that the management(College) has not filed

any writ petition challenging the impugned

decisions of the MCI, though those decisions were

generated on directions issued by this Court on

writ petitions filed by the managements earlier.

We also do not find that the writ petitioners had

pressed any such argument before us at final

hearing.

18.For the aforesaid reasons, we do not find any

merit in these writ petitions. They fail.

WPC34270/09 & con.cases -: 24 :-

In the result, these writ petitions are

dismissed. No costs.

Thottathil B.Radhakrishnan,
Judge.

P.Bhavadasan,
Judge.

Sha/0709