IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 15733 of 2009(J) ----------------------------------------- PETITIONER(S): --------------------------- 1. DEEPA THOMAS,6/A,SHEETHAL, ROUND NORTH,THRISSUR 680 020. 2. NIDHI GIRVASIS,NIRMAL RANI ADORATION PRIOVINCIALATE,SANTHI LANE, CHETTUPUZHA,THRISSUR. 3. JISHA JEEV.K.,JEEVAGEETHAM, KALADY P.O.,MATTOOR. 4. JOBY JOSE,MARIA PROVINCIAL HOUSE, MOORKKANCHERY,THRISSUR 680 007. 5. LAVEENA V.ANTONY,VELAYANATTUKARAN HOUSE, KAU P.O.,THRISSUR 680 656. BY ADVS.MR.SANTHOSH MATHEW, MR.SATHISH NINAN. RESPONDENT(S): --------------------------- 1. THE MEDICAL COUNCIL OF INDIA,POCKET-14, SECTOR-8,DWARAKA PHASE-I,NEW DELHI 110 075, REPRESENTED BY ITS SECRETARY. 2. THE UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT,KERALA,REPRESENTED BY ITS REGISTRAR. 3. THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT,PAREEKSHA BHAVAN, CALICUT UNIVERSITY P.O.,MALAPPURAM DISTRICT,KERALA. 4. THE PRINCIPAL,JUBILEE MISSION MEDICAL COLLEGE & RESEARCH INSTITUTE, JUBILEE MISSION HOSPITAL TRUST, P.B.NO.737,TRICHUR 680 005. Kss ..2/- ...2..... WPC.NO.15733/2009 J 5. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES,RAJ MOHAN PALACE, ERNAKULAM,REP.BY ITS MANAGER. R1 BY ADV. MR.ALEXANDER THOMAS, SC, MCI R2 & R3 BY ADV.MR.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009 ALONG WITH WPC NO.16454 OF 2009 AND WPC.NO.18234 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15733/2009 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF the COMMUNICATION DTD. 8/08/2008 SENT BY THE MEDICAL COUNCIL OF INDIA TO THE PRINCIPAL. P2: COPY OF THE REPLY GIVEN BY THE PRINCIPAL DTD. 9/09/2008. P3: COPY OF THE COMMUNICATION ISSUED BY THE PRINCIPAL TO THE PETITIONERS ON 20/10/2008. P4: COPY OF THE COMMUNICATION DTD. 24/10/2008 SENT BY THE PRINCIPAL TO THE M.C.I. P5: COPY OF THE COMMUNICATION DTD. 24/10/2008 SENT BY THE PRINCIPAL TO THE REGISTRAR, UNIVERSITY OF CALICUT. P6: COPY OF THE COVERING LETTER DTD. 20/02/2009. P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PRINCIPAL TO THE MEDICAL COUNCIL OF INDIA. P8: COPY OF THE COMMUNICATION SENT BY THE MEDICAL COUNCIL OF INDIA ON 16/04/2009. P9: COPY OF THE LETTER SENT BY THE CONTROLLER OF EXAMINATIONS TO THE PRINCIPAL ON 19/05/2009. P10: COPY OF THE ORDER DTD. 14/07/2008 OF THE HON'BLE COURT OF INDIA. P11: COPY OF THE ORDER DTD. 4/09/2008 IN CIVIL APPEAL NOS.5518-19 OF 2008. P12: COPY OF THE ORDER DTD. 21/01/2009 IN CIVIL APPEAL NO.3109 OF 2008 AND CONNECTED CASES. P13: COPY OF THE DETAILS OF THE STUDENTS ADMITTED BY THE M.E.S. MEDICAL COLLEGE, PERINTALMANNA. P14: COPY OF THE COMMUNICATION DTD. 19/12/2008 ISSUED BY THE CONTROLLER OF EXAMINATIONS. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ---------------------------------------- W.P.(C).No.15733, 16454 & 18234 of 2009 ---------------------------------------- Dated this the 13th day of July, 2009. JUDGMENT Almost identical issues arise for consideration in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to the facts in W.P.(C)No.15733/09 in the first instance. 2. I heard learned counsel for the petitioner Mr.Santhosh Mathew, Mr.T.A.Shaji, learned counsel for the University and Mr.Alexander Thomas counsel for the Medical Council of India. 3. The petitioners were admitted to the MBBS Course, 2007, in the College of the 4th respondent pursuant to the Entrance Examination conducted by the Association of Kerala Self-Financing Medical College Management. There is a dispute as to whether the W.P.(C).No.15733/09 $ con.cases :: 2 :: petitioners had secured 50% marks in the Entrance Examination so conducted by the Association. 4. According to the University, they have not secured such marks. According to the petitioners, they have not been told the marks they have secured in the Entrance Examination by the management. But, the Medical Council of India initiated proceedings on the premise that they have been informed by the association that the petitioners have not secured 50% marks in the Entrance Examination and therefore, in terms of the statutory regulations, they were ineligible to be admitted to the course. It seems that the Medical Council of India proceeded to pass Ext.P8 order directing the institutions to remove the petitioners from the rolls of the College holding them ineligible to be registered for the MBBS course. The University also issued Ext.P9 referring to Ext.P8 as well. The University has also directed the W.P.(C).No.15733/09 $ con.cases :: 3 :: institutions to remove the petitioners from the rolls of the colleges admitted to the 1st professional MBBS, 2007. These are under challenge in these writ petitions. 5. The issue similar to the present case, except with regard to an aspect relating to the circumstances under which the petitioners had participated in the 1st year MBBS Examination pursuant to an order passed by the Supreme Court on a motion made by the instance of the management, was dealt with by me in W.P.(C) No.15671/09. I have held that since the order passed by the Medical Council of India directing the candidates to be removed from the rolls of the college would visit the candidates with civil consequences, it was necessary that the principles of natural justice be adhered to and that the candidates are heard by the Medical Council of India. There is no reason why I should not adopt the same view, in the instant case as well. W.P.(C).No.15733/09 $ con.cases :: 4 :: 6. Mr.P.C.Sasidharan submits that the petitioners have mounted a challenge to the action taken by the University. He further submits that even as per the University regulations, candidates who do not secure 50% marks are not eligible to contest in the Entrance Examination and are ineligible to be admitted to MBBS Course. Therefore, de hors the decision taken by the Medical Council of India, though no doubt the same has been referred to by the University, it is the stand of the University that these persons are otherwise ineligible. He further submits that the University, therefore, would defend their action independent of the action taken by the Medical Council of India. 7. As mentioned above, I have considered similar issue in W.P.(C)No.15671/09 wherein, I directed the University to hear the candidates and take a fresh decision and it was further directed that the contentions W.P.(C).No.15733/09 $ con.cases :: 5 :: of both the petitioners as also of the University be left open, if necessary to be decided in appropriate proceedings. I am of the view that the contentions raised by the respective parties be left open, in the present case also. 8. Learned counsel for the petitioners prays that since they have been declared to have passed the 1st year professional MBBS Examination and by virtue of the interim order passed by this court, they have been permitted to prosecute the course in the second year, such permission may be continued, on a provisional basis, pending a fresh decision by the Medical Council of India as such. Mr.Sasidharan opposes this prayer and brings to my notice the judgment in M.G.University v. Gis Jose {2008(4) KLT 216}. 9. It is true that an ineligible candidate should not be allowed to prosecute a course, especially a W.P.(C).No.15733/09 $ con.cases :: 6 :: professional course, if in terms of the statutory regulations, he is otherwise ineligible to do so. It is also true that though the University was directed to discharge the petitioners in May, 2009, the management did not take action and the petitioners had approached this court only in June, 2009. But, I am of the view that since there is an interim order permitting them on a provisional basis to continue, they may do so, subject to the rider that if the Medical Council of India takes a decision against them, then their prosecution of the course, on the strength of the interim order passed by this court and as permitted herein, will be treated as non est and no equity will enure in their favour, merely by such participation. 10. In these circumstances, the writ petitions are disposed of with the following directions: (a) The decision taken by the Medical Council of India, impugned in each one W.P.(C).No.15733/09 $ con.cases :: 7 :: of these writ petitions, shall be treated, provisionally, as a show cause notice. The petitioners shall file their objections to the same within six weeks from today. (b) The Secretary of the Medical Council of India shall hear the petitioners or their authorised representative and the hearing notes of the Secretary shall be forwarded to the Executive Committee of the Medical Council of India. (c) The Executive Committee shall take a decision within four weeks from the date on which the hearing is conducted. (d) The Secretary of the Medical Council of India shall issue a notice of hearing to the University as also to the management and permit the University or the Management, either to appear or submit their version, before the Secretary of the Medical Council of India. (e) The petitioners and the management shall contemporaneously forward copies of their representations or versions, as the case may be, to the University, simultaneous to them being despatched to the Secretary of the Medical Council of India. W.P.(C).No.15733/09 $ con.cases :: 8 :: (f) It is open to the Medical Council of India to verify the correctness of the details given by the petitioners, as regards the marks claimed to have been obtained by the petitioners in the competitive Entrance Examination of Kerala Self- Financing Private Management Association in the year 2007. (g) The Medical Council of India shall advert to the other contentions, if any, raised by the petitioners. 11. All contentions raised by the University, though sought to be defended by the petitioners, including the legality of the action taken by the University requiring the petitioners to be discharged or removed from the register of MBBS Course on the basis that they have failed to secure 50% marks in the competitive Entrance Examination are left open. 12. The petitioners, who have passed the 1st year MBBS examination, will be permitted to continue to attend the 2nd year MBBS class on a purely provisional W.P.(C).No.15733/09 $ con.cases :: 9 :: basis, and it is made clear that they will cease to attend the classes, if the Medical Council of India takes a decision adverse to their interest, pursuant to the hearing, as directed above. 13. Mr.Sasidharan take up a separate contention regarding two of the petitioners in W.P.(C) No.15733/09, viz., Jisha Jeev and Nidhin Girvasis. It is pointed out that, apart from the fact that the registration of these students, like three others mentioned in Ext.P9, has been directed to be cancelled and their results of the 1st year MBBS Examination has also not been declared. It seems that the two students, had participated in the Examination, before their registration was directed to be cancelled and hence their results have not been declared so far. Mr.Sasidharan submits that insofar as those two students are concerned, unless this court has not interfered with Ext.P9, it would not be appropriate for W.P.(C).No.15733/09 $ con.cases :: 10 :: this court to direct publication of the results of those two students, thereby enabling them to continue the 2nd year MBBS Course, on a par with the three others. Learned counsel for the petitioners points out that the aforementioned two students, in fact, are situated on a par with the three others. 14. Insofar as Jisha Jeev and Nidhin Girvasis, petitioners 2 and 3 in W.P.(C)No.15733/09 are concerned, since I have not interfered with Ext.P9 and since at the instance of the petitioners themselves, the contentions, as regards the action taken by the University, are left open, I do not find my way to issue any direction in their favour to enable them to continue the 2nd year course until Ext.P9 as such has been set aside or separate orders are passed. 15. But, I leave open any contentions which may be taken up by the aforementioned two students W.P.(C).No.15733/09 $ con.cases :: 11 :: and any other student, who might be affected, by an allegation of shortage of attendance, if they are successful in getting permission to prosecute the course. 16. I further make it clear that since the decision taken by the Medical Council of India is being interfered with on the ground that it is in violation of the principles of natural justice, I am not dealing with the other contentions of the petitioners as regards the validity of the action taken by the Medical Council of India. Writ petitions are disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//