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 atWPC34270/09 & 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