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Saturday, August 8, 2015

The Indian Medical Council Act, 1956 (hereinafter referred to as “the Act” specifically provides for recognition of medical qualification granted by universities or medical institutions either in India or abroad. Once a medical qualification granted by a medical institution in India is recognized by the Central Government, whether recognition is also required for the admission capacity which is increased from time to time or whether permission of the Central Government alone is required for such an increase in the admission capacity in the recognized course, is the question of law arising for consideration in this case.= It is vehemently contended on behalf of the Medical Council of India and the Central Government that the admission capacity also requires recognition in addition to the permission by the Central Government. The position canvassed is that once a course is sanctioned (If it is M.B.B.S. 5- years course; if it is a P.G. course - may be 2 or 3-years course), the recognition is granted only when the course is completed. 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 recognized course and a recognized institution, the admission capacity or its increase in any recognized course needs only the permission of the Central Government as per the scheme under Section 10A of the Act. = The decision dated 14.03.2014 is one taken by the Committee not to increase the strength in any medical college unless the existing strength is recognized by the Central Government (Annexure-A8 of I.A.-2 of 2015). As we have discussed herein above, the Act does not provide for recognition of the admission capacity in a recognized medical college for a recognized course. The regulations, “The Opening of a New or Higher Course of Study or Training (including Post-graduate Course of Study or Training) and Increase of Admission Capacity in any Course or Study or Training (including a Post- graduate Course of Study or Training) Regulations, 2000”, also does not contemplate such a requirement. Therefore, there is no legal basis for the decision dated 14.03.2014 and it is only to be ignored. It is also seen from the pleadings that in case of two medical colleges (1) S.P. Medical College, Bikaner, Rajasthan and (2) Maulana Azad Medical College, New Delhi, permission was granted for increasing admission capacity without recognition of the existing capacity, as increased from time to time. In the above circumstances, we do not find any justification whatsoever in denying relief to the petitioner. Learned Counsel appearing for the Medical Council of India raised an objection regarding maintainability of the petition placing reliance on the recent Judgment of this Court in Writ Petition (Civil) No. 441 of 2015 and connected cases decided on 23.07.2015. Our attention was invited to Paragraph-27 of the Judgment, which reads as follows: “27. Under Article 32 of the Constitution, this Court is not supposed to go into finding of facts recorded by the authorities and to come to a different conclusion. Moreover, having regard to the law settled by Constitution Bench of this Court in number of decisions, in our considered opinion, the rights so claimed by the petitioners are not fundamental rights; hence the same cannot be agitated directly before this Court under Article 32 of the Constitution.” We do not find any substance in the objection. In the background of the facts narrated by us, only this Court could have entertained the grievance of the petitioner. Moreover, there are no disputed facts at all in the present case. All the material facts stated in the writ petition are admitted. The dispute is only on question of law. The present petition is only in continuation of the earlier proceedings before this Court. In the above circumstances, the Writ Petition is allowed. The impugned orders are quashed. The respondents are directed to process and consider afresh the application for the increase of seats from 150 to 250 for the M.B.B.S. course for the Academic Session 2015-2016 and pass orders thereon positively within a period of two weeks from today. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL  ORIGINAL  JURISDICTION


                    WRIT PETITION (CIVIL) NO. 306 OF 2015

Sree Balaji Medical College and Hospital
and another                                  …  Petitioner (s)

                                   Versus

Union of India and another                   …  Respondent (s)


                               J U D G M E N T



KURIAN, J.:



The Indian Medical Council Act, 1956 (hereinafter referred to as  “the  Act”
specifically provides for recognition of medical  qualification  granted  by
universities or medical institutions either  in  India  or  abroad.  Once  a
medical  qualification  granted  by  a  medical  institution  in  India   is
recognized by the Central Government, whether recognition is  also  required
for the admission capacity which is increased from time to time  or  whether
permission of the Central Government alone is required for such an  increase
in the admission capacity in the recognized course, is the question  of  law
arising for consideration in this case.

Recognition of medical qualification  granted  by  universities  or  medical
institutions in India is dealt  with  under  Section  11  of  the  Act.  The
provision reads as follows:

“11. Recognition  of  medical  qualifications  granted  by  Universities  of
medical institutions of India.-            (1)  The  medical  qualifications
granted by  any  University  or  medical  institution  in  India  which  are
included in the First Schedule shall be  recognized  medical  qualifications
for the purposes of this Act.
(2) Any University or medical institution in India which  grants  a  medical
qualification not included in the First Schedule may apply  to  the  Central
Government  to  have  such  qualification  recognized,   and   the   Central
Government, after consulting  the  Council,  may,  by  notification  in  the
Official  Gazette,  amend  the  First  Schedule  so  as  to   include   such
qualification therein, and any such notification may  also  direct  that  an
entry shall be made in the last column of the First  Schedule  against  such
medical qualification declaring  that  it  shall  be  a  recognised  medical
qualification only when granted after a specified date.”



Section 10A of the Act deals with the permission for  establishment  of  new
medical college, new course of study and admission capacity. To  the  extent
relevant, Section 10A(1) of the Act reads as follows:
“10A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL  COLLEGE,  NEW  COURSE  OF
STUDY ETC.

1. Notwithstanding anything contained in this Act or any other law  for  the
time being in force:-

1. no person shall establish a medical college; ( or )

2. no medical college shall-

(i).  open a new  or  higher  course  of  study  or  training  (including  a
postgraduate course of study or training) which would enable  a  student  of
such course or training to qualify himself for the award of  any  recognised
medical qualification; or

(ii). increase its admission capacity in any course  of  study  or  training
(including a postgraduate course of study or training),

except with the previous permission of the Central  Government  obtained  in
accordance with the provisions of this section.

Explanation 1 - For the purposes of  this  section,  "person"  includes  any
University or a trust but does not include the Central Government.

Explanation 2 - For the purposes of this  section  "admission  capacity"  in
relation to any course of study or training (including  postgraduate  course
of study or training) in a medical college,  means  the  maximum  number  of
students that may be fixed by the  Council  from  time  to  time  for  being
admitted to such course or training.”




 Section 10B of the Act  deals  with  the  non-recognition  of  the  medical
qualifications in certain cases. The provision reads as follows:
“10B. Non-recognition of  medical  qualifications  in  certain  cases.-  (1)
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 a recognised medical qualification  for  the  purposes
of this Act.

(2) Where any medical college opens a new  or  higher  course  of  study  or
training (including a postgraduate course of study or training) 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 on the basis of such study or training  shall  be  a
recognised medical qualification for the purposes of this Act.

(3) Where any medical  college  increases  its  admission  capacity  in  any
course of study or training 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 on  the
basis of the increase in  its  admission  capacity  shall  be  a  recognised
medical qualification for the purposes of this Act.

Explanation  -  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.”

                                                         (Emphasis supplied)




It is clear from the scheme of the  Act,  as  per  the  relevant  provisions
extracted  above,  that  recognition  and  permission  are   two   different
concepts. Recognition is of a medical qualification, ordinarily known  as  a
course conducted by an institution which is also to be recognized.

Section 11(2) of the Act provides that the medical  qualifications  and  the
institutions thus recognized are to be notified in the First  Schedule.  The
First Schedule is titled as “RECOGNITION OF MEDICAL  QUALIFICATIONS  GRANTED
BY THE UNIVERSITIES OR MEDICAL INSTITUTIONS IN INDIA”.

Section 10A of the Act deals with permission  for  establishment  of  a  new
medical college and a new course of  study.  No  person  shall  establish  a
medical college and no medical college shall open a new or higher course  of
study or training for the award of any recognized medical qualification  and
no person shall increase the admission capacity in any course  of  study  or
training, except  with  the  prior  permission  of  the  Central  Government
obtained in accordance with the scheme provided in  the  Section.  Admission
capacity, as per Explanation 2 to Section 10A, in relation to any course  of
study or training in a medical college means the maximum number of  students
that may be fixed by the  Medical  Council  from  time  to  time  for  being
admitted to such course or training.

In short, permission of the  Central  Government  is  required  -    (1)  to
establish a medical college, (2) to open a new course of study  or  training
other than the recognized course and (3) to increase the admission  capacity
in any course of study or training.  However,  recognition  of  the  Central
Government is also required for the medical college and the course of  study
for the purpose of the medical qualification.  Once  a  medical  college  is
recognized under Section 11 of the Act  along  with  medical  qualification,
thereafter, for increase in the admission capacity in any  course  of  study
or training that is recognized under Section 11 of the Act, only  permission
from Central Government as per the scheme under Section 10A of  the  Act  is
required. But there are three  Exceptions  to  this.  Those  Exceptions  are
provided under Section 10B:

The medical qualification granted  to  any  student  of  a  medical  college
established without permission of the Central Government;

Medical qualification granted to  any  student  in  any  recognized  medical
college where the new or higher course of study  or  training  is  conducted
without the previous permission of the Central Government;

Where a medical college increased its admission capacity in  any  recognized
course of study or training without the previous permission of  the  Central
Government, and in such a case, the medical qualification granted  to  those
students of such recognized medical colleges on the basis of  the  increased
admission capacity,  which  is  unauthorized,  shall  not  be  a  recognized
medical qualification for the purpose of the Act.

As a matter of fact, Exceptions (i) and (ii) under Section 10B of  the  Act,
in any way, are redundant since any course  or  training  conducted  in  any
medical college, if not included in the First Schedule as per Section 11  of
the Act, will not be a recognized medical qualification. However, the  third
Exception is in  respect  of  a  student  (s)  admitted  in  excess  of  the
admission capacity provided under Section 10A of  the  Act  by  the  Central
Government.

It is vehemently contended on behalf of the Medical  Council  of  India  and
the  Central  Government  that  the   admission   capacity   also   requires
recognition in addition to the permission by  the  Central  Government.  The
position canvassed is that once a course is sanctioned (If it is M.B.B.S. 5-
years course; if it is a P.G. course - may be  2  or  3-years  course),  the
recognition is granted only when the course is completed.

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 recognized course and a recognized institution, the admission  capacity
or its increase in any recognized course needs only the  permission  of  the
Central Government as per the scheme under Section 10A of the Act.

Having analysed the legal position, we  shall  now  deal  with  the  factual
matrix of the present case.  The  petitioner  medical  college  was  granted
permission to establish a new medical  college  and  it  was  recognized  by
Notification dated 17.02.2009. For the purposes of easy reference, we  shall
extract the relevant portion of the Notification published  in  the  Gazette
of India dated 17.02.2009, which reads as under:
                                “NOTIFICATION
      S.O.  In exercise of the powers conferred by sub-section  (2)  of  the
section 11 of the Indian Medical  Council  Act,  1956  (102  of  1956),  the
Central Government, after consulting the Medical Council  of  India,  hereby
makes the following further amendments in the First  Schedule  to  the  said
Act, namely:-

      In the  said  First  Schedule  after  “Bharathidasan  University”  and
entries thereto “Bharath University, Chennai, Tamil  Nadu”  shall  be  added
and against “Bharath University, Chennai,  Tamil  Nadu”  under  the  heading
‘Recognised Medical Qualificatoin’ [hereinafter referred to as column  (2)],
and under the heading ‘abbreviation for Registration’ [hereinafter  referred
to as column (3), the following shall be inserted, namely:-






(2)                               (3)
------------------------------------------------------------------------

Bachelor of Medicine and                M.B.B.S.
Bachelor of Surgery
(This shall be a recognized medical qualification when  granted  by  Bharath
University, Chennai, Tamil Nadu after February 2008 in respect  of  students
trained at Sree Balaji Medical College & Hospital, Chennai, Tamil Nadu.)”



As per Order dated  15.07.2013,  the  petitioner  was  given  permission  to
increase the seats for M.B.B.S. from 100 to 150  for  the  Academic  Session
2013-2015 and that is not in dispute also (Annexure-A4 in I.A.-2 of 2015).

The petitioner-medical college submitted  an  application  dated  25.09.2013
for permission to increase the admission capacity from 150 to  250  for  the
Academic Session 2014-2015. In that regard, they  have  also  filed  a  writ
petition before the Madras High Court leading to Judgment  dated  29.04.2014
(Annexure-P1).  The  Central  Government  was  directed  to   consider   the
application of the petitioner  and  pass  orders  on  merits  on  or  before
31.05.2014. The writ appeal filed  by  the  Medical  Council  of  India  was
dismissed by Judgment dated 09.06.2014 in Writ Appeal No. 728 of  2014.  The
Medical Council of India  approached  this  Court  leading  to  Order  dated
18.07.2014 in Civil Appeal No. 6564 of 2014. The operative  portion  of  the
Order reads as follows:

“… Heard the learned counsel appearing for the parties.

Looking at the facts of the case, in  our  opinion  it  would  be  just  and
proper to treat the application  filed  by  the  applicant  to  the  Medical
Council of India for getting additional seats for the  academic  year  2015-
2016 instead of 2014-15.

The Medical Council of India is directed to complete the inspection  of  the
applicant-College before 31st October, 2014. …”



The Medical Council of India filed I.A. No. 3 of 2014  for  modification  of
order dated 18.07.2014 contending that only if the intake of 150  (increased
strength of 50) is recognized by the Central  Government,  the  request  for
further increase can be considered. On 17.10.2014, this Court  directed  the
Medical Council of India to  complete  the  inspection  in  respect  of  the
application for the intake of 250 students by 15.11.2014.  Accordingly,  the
inspection was conducted and the report is produced as  Annexure-P8.  It  is
fairly admitted by the Medical Council of India and the  Central  Government
that the petitioner-medical  college  satisfies  all  the  requirements  for
increase of admission capacity from 150 to 250, as per  the  report,  I.  A.
No. 3 of 2014 for modification  of  the  Order  dated  18.07.2014  in  Civil
Appeal was disposed of on 17.11.2014. The operative  portion  of  the  order
reads as follows:

“… In pursuance of the query raised by us, it  has  been  submitted  by  Mr.
P.S. Patwalia, learned Additional Solicitor General, appearing on behalf  of
appellant, that as directed by  this  Court,  inspection  has  already  been
completed before 15th November, 2014.

The Authorities shall take appropriate decision on the basis of  the  report
of inspection and other relevant facts. No other direction is given  to  the
Authorities.

Interlocutory Application No. 3 for clarification/ modification  of  Court’s
order is disposed of accordingly.”



Despite  all  these  developments,  surprisingly,  if  not  shockingly,  the
Medical Council of India, it its Meeting held on  20.11.2014,  decided  that
“…  since  Sree  Balaji  Medical  College  and  Hospital,  Chennai  is   not
recognized for 150 admissions, it is not eligible for further increase  from
150 to 250 as per the  earlier  decision  dated  14.03.2014”(Annexure-A9  of
I.A.2 of 2015).

The decision dated 14.03.2014 is one taken by the Committee not to  increase
the strength  in  any  medical  college  unless  the  existing  strength  is
recognized by the Central Government (Annexure-A8 of I.A.-2 of 2015). As  we
have discussed herein above, the Act does not  provide  for  recognition  of
the admission capacity in a recognized  medical  college  for  a  recognized
course. The regulations, “The Opening of a New or Higher Course of Study  or
Training (including Post-graduate Course of Study or Training) and  Increase
of Admission Capacity in any Course or Study or Training (including a  Post-
graduate Course of Study or Training)  Regulations,  2000”,  also  does  not
contemplate such a requirement. Therefore, there is no legal basis  for  the
decision dated 14.03.2014 and it is only to be ignored.

It is also seen from the pleadings that in case of two medical colleges  (1)
S.P. Medical College,  Bikaner,  Rajasthan  and  (2)  Maulana  Azad  Medical
College,  New  Delhi,  permission  was  granted  for  increasing   admission
capacity without recognition of the existing  capacity,  as  increased  from
time to time.

In the above circumstances, we do not find any justification  whatsoever  in
denying relief to the petitioner. Learned Counsel appearing for the  Medical
Council of India  raised  an  objection  regarding  maintainability  of  the
petition placing reliance on the recent  Judgment  of  this  Court  in  Writ
Petition (Civil) No. 441 of 2015 and connected cases decided on  23.07.2015.
Our attention was invited to Paragraph-27 of the Judgment,  which  reads  as
follows:



“27.  Under Article 32 of the Constitution, this Court is  not  supposed  to
go into finding of facts recorded by  the  authorities  and  to  come  to  a
different  conclusion.  Moreover,  having  regard  to  the  law  settled  by
Constitution Bench of this Court in number of decisions, in  our  considered
opinion, the rights so  claimed  by  the  petitioners  are  not  fundamental
rights; hence the same cannot be agitated directly before this  Court  under
Article 32 of the Constitution.”





We do not find any substance in the objection.  In  the  background  of  the
facts narrated by us, only this Court could have entertained  the  grievance
of the petitioner. Moreover, there are no  disputed  facts  at  all  in  the
present case. All the  material  facts  stated  in  the  writ  petition  are
admitted. The dispute is only on question of law. The  present  petition  is
only in continuation of the earlier proceedings before this Court.

In the above circumstances, the  Writ  Petition  is  allowed.  The  impugned
orders are quashed. The respondents are directed  to  process  and  consider
afresh the application for the increase of seats from 150  to  250  for  the
M.B.B.S. course  for  the  Academic  Session    2015-2016  and  pass  orders
thereon positively within a period of two weeks from today.

There shall be no order as to costs.



                                                              ..…….…..…………J.
                     (ANIL R. DAVE)



                                                                ..……………………J.
                 (KURIAN JOSEPH)
New Delhi;
August 6, 2015.
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                                                                  REPORTABLE


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