IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 34270 of 2009(C) ---------------------------------------- PETITIONER(S): ------------------------ 1. DEEPA THOMAS, 2ND MBBS, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. 2. LAVEENA V.ANTONY, 2ND MBBS, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. 3. JISHA JEEV. K., 2ND MBBS, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. 4. NIDHI GIRVASIS, 2ND MBBS, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. 5. JOBBY JOSE, 2ND MBBS, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): -------------------------- 1. MEDICAL COUNCIL OF INDIA, POCKET-14, SECTOR 8, DWARAKA, NEW DELHI-110 077, REPRESENTED BY THE SECRETARY. WP(C).No. 34270 of 2009(C) 2. UNIVERSITY OF CALICUT, THENJIPALAM, REPRESENTED BY THE REGISTRAR. 3. THE PRINCIPAL, JUBILEE MEDICAL MISSION COLLEGE AND RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, TRICHUR, KERALA STATE. *ADDL. R4 IMPLEADED ADDL. R4: THE MANAGER, THE ADMISSION SUPERVISORY COMMITTEE, RAM MOHAN PALACE, ERNAKULAM, COCHIN-682 031. *ADDL. R4 IS IMPLEADED AS PER ORDER DATED 02/12/2009 IN I.A.15174/2009. R1 BY ADV. SRI.ALEXANDER THOMAS, SC, MCI . R2 BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. R3 BY ADV. MR.TONY GEORGE KANNANTHANAM ADDL. R4 BY ADV. SRI.MURALI PURUSHOTHAMAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2010, ALONG WITH WPC NO. 34278 OF 2009 AND CONNECTED CASES, THE COURT ON 16/09/2010 DELIVERED THE FOLLOWING: WP(C).No. 34270 of 2009(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO MBBS. EXT.P2: COPY OF THE ORDER IN I.A. NOS.1-2 AND 3 IN CIVIL APPEAL NO.2846 OF 2007 DATED 24/07/2007. EXT.P3: COPY OF THE ORDER IN I.A. NOS.1-3 IN CIVIL APPEAL NO.2846/2007 DATED 07/08/2007. EXT.P4: COPY OF THE RELEVANT PORTION OF THE REGULATIONS OF THE MCI. EXT.P5: COPY OF THE COMMUNICATION NO.MCI-34(KER-12) 2007-08-MC 20242 DATED 08/08/2008. EXT.P6: COPY OF THE EXPLANATION DATED 09/09/2008. EXT.P7: COPY OF THE REPRESENTATION DATED 09/03/2009. EXT.P8: COPY OF THE ORDER IN CIVIL APPEALS NOS.5518-5519/2008 DATED 04/09/2008. EXT.P9: COPY OF THE ORDER IN SLP NOS.17995 TO 17996 OF 2008 DATED 04/09/2008. EXT.P10: COPY OF THE JUDGMENT OF THE DELHI HIGH COURT DATED 21/01/2009. EXT.P11: COPY OF THE ORDER NO.MCI-NO.34(KER-9)/2007-MC(UG)/1526 DATED 16/04/2009. EXT.P12: COPY OF THE COMMUNICATION NO.EPR I/3/I MBBS/2008(2) DATED 19/05/2009. EXT.P13: COPY OF THE INTERIM ORDER IN W.A. NO. 209/2009 DATED 29/01/2009. EXT.P14: COPY OF THE INTERIM ORDER IN W.A. NO. 209/2009 DATED 04/03/2009. EXT.P15: COPY OF THE INTERIM ORDER IN W.A. NO. 209/2009 DATED 12/03/2009. EXT.P16: COPY OF THE ORDER NO.MCI-34(KER-15)/2007-08-MC 53075 DATED 13/03/2009. EXT.P17: COPY OF THE JUDGMENT IN W.A. NO. 209/2009 DATED 20/03/2009. EXT.P18: COPY OF THE JUDGMENT IN WP(C) NO. 15733/2009 DATED 13/07/2009. EXT.P19: COPY OF THE HEARING NOTICE NO.MCI-34(KER-13)/2007-08-MC/32516 DATED 28/08/2009. EXT.P20: COPY OF THE WRITTEN SUBMISSION NO.JMMC/MCI/2326/2009 DATED 10/09/2009. (P.T.O.) WP(C).No. 34270 of 2009(C) EXT.P21: COPY OF THE REPRESENTATION DATED 14/09/2009, GIVEN BY THE 2ND PETITIONER. EXT.P22: COPY OF THE ORDER NO.MCI-34(KER-12)/2007-08-MC/40837 DATED 03/10/2009. EXT.P23: COPY OF THE COMUNICATION NO.EPR I/3/1 MBBS/2008(2) DATED 12/11/2009. EXT.P24: COPY OF THE COMMUNICATION DATED 18/11/2009. EXT.P25: COPY OF THE COMMUNICATION DATED 26/07/2010 ISSUED BY THE UNIVERSITY. RESPONDENT'S EXHIBITS: EXT.R1A: COPY OF THE MCI'S CIRCULAR DATED 21/09/2007 AND 13/10/2007. EXT.R1B: COPY OF THE LETTER DATED 03/10/2007 OF RESPONDENT NO.3- COLLEGE ALONGWITH LIST OF STUDENTS ADMITTED IN MBBS COURSE 2007-08. EXT.R1C: COPY OF THE LETTER DATED 24/10/2008 OF RESPONDENT NO.3 COLLEGE. EXT.R1D: COPY OF THE MCI'S LETTER DATED 07/11/2008. EXT.R1E: COPY OF THE LETTER DATED 20/02/2009 OF RESPONDENT NO.3 COLLEGE. EXT.R1F: COPY OF THE JUDGMENT DATED 3RD APRIL 2009 PASSED BY THIS HONOURABLE COURT IN WP(C) NO. 10991/2009-T. EXT.R1G: COPY OF THE MCI'S LETTERS DATED 28/08/2009. EXT.R1H: COPY OF THE JUDGMENT DATED 01/08/2007 PASSED BY HONOURABLE MADHYA PRADESH HIGH COURT IN DR.V.K. JAIN V/S. STATE OF M.P. EXT.R1I: COPY OF THE JUDGMENT AND FINAL ORDER DATED 23/07/2007 PASSED BY THE HONOURABLE M.P. HIGH COURT IN WP(C) NO. 16146/2006-AKHIL BHARATIYA VIDYARTHI PARISHAD V/S. STATE OF M.P. & ORS. EXT.R1J: COPY OF THE JUDGMENT DATED 10/10/2009 PASSED BY LD DIVISION BENCH OF THE HONOURABLE HIGH COURT OF GUJARAT AT AHMEDABAD IN THE CASE CHOWDHARY NAVIN HEMABHAI & 6 PETITIONER (S) V/S. STATE OF GUJARAT & 3 RESPONDENT (S). //TRUE COPY// P.S. TO JUDGE rs. 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