IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 20626 of 2009(W) ----------------------------------------- PETITIONER(S): ------------------------- 1. HAMEED FAZAL, AGED 20 YEARS, S/O. DR.FAZAL GHAFOOR, MANAPAD HOUSE, KANNUR ROAD, NADAKAVU, CALICUT -673 011. 2. AMITHA SHERIF, AGED 20 YEARS, D/O. P.I. SHERIEF MUHAMMED, PALASSERIL (H), THOTTUMUGHAM P.O., ALWAYE - 5. 3. AASHIQ K. NAWAL, AGED 20 YEARS, S/O. DR.KUNJAHAMMAD M.P. KASAM, INDUSTRIAL ESTAE X ROAD, NEAR PAZHAYAMADAM, MANJERI PP.O. MALAPPURAM - 676 121. 4. NOUFAL P., AGED 20 YEARS, S/O. AHAMED P.,PARANGODATH (H) CHINAKKAL, VALIYORA P.O. MALAPPURAM - 676 308. 5. FEMI MOL, AGED 22 YEARS,D/O.K.M.ABDULLA, SAFA, KAITHARAM P.O. NORTH PARAVUR, ERNAKULAM 683516. 6. MAHESH MADHU, AGED 20 YEARS, S/O. MADHUSUDANAN K.S.,GIRIJA BHAVAN, KUTTAPUZHA P.O., THIRUVALLA, PATHANAMTHITTA-689103. 7. SHAMEELA N., AGED 20 YEARS, D/O. MUHAMMED ALI.N.,NALAKATH (H) MOULANA FLAT (A-6),OOTTY ROAD, PERINTHALMANNA - 679 322. 8. MOHAMMED SHERIN A.S. AGED 22 YEARS, S/O. ABDUL AZEEZ M, S.M.A. BUILDING, ANAPPETTY,PARAPPARA P.O., THIRUVANANTHAPURAM 695 551. Kss ..2/- ...2..... WPC.NO.20626/2009 W 9. SAUBIYA PALLIPARAMBIL, AGED 20 YEARS, D/O. MUHAMMED ALI, PALLIPARAMBIL (H), VATTALUR P.O., MALAPPURAM - 676 507. BY MR.M.M.ABDUL AZIZ, SENIOR ADVOCATE, MR.JYOTHISH.J.KALLINGAL, MR.M.A.ABDUL HAKHIM. RESPONDENT(S): --------------------------- 1. MEDICAL COUNCIL OF INDIA, POCKET-14, SECTOR - 8, DWARAKA, NEW DELHI-110 077, REPRESENTED BY ITS SECRETARY 2. THE PRINCIPAL, MES MEDICAL COLLEGE, PERINTALMANNA, PALATHODU P.O. KOLATHUR (VIA),MALAPPURAM DIST. 3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, UNIVERSITY P.O. THENJIPPALAM, CALICUT. R1 BY ADV. MR.ALEXANDER THOMAS, SC, MCI R2 BY ADV. MR.BABU KARUKAPADATH, SC, MES R3 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009 ALONG WITH WPC NO. 21562 OF S009 AND WPC.NO.21879 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20626/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE ISSUED BY CBSE, NEW DELHI. P2: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS ISSUED BY THE 2ND RESPONDENT FOR ADMISSION TO MBBS COURSE FOR THE ACADEMIC YEAR 2007-08. P3: COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 1ST PETITIONER. P3(A): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 2ND PETITIONER. P3(B): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 3RD PETITIONER. P3(C): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 4TH PETITIONER. P3(D): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 5TH PETITIONER. P3(E): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 6TH PETITIONER. P3(F): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 7TH PETITIONER. P3(G): COPY OF THE MEMORANDUM OF MARKS AWARDEDTO THE 8TH PETITIONER. P3(H): COPY OF THE MEMORANDUM OF MARKS AWARDED TO THE 9TH PETITIONER. P4: COPY OF THE LETTER DTD. 5/10/2007 SENT BY THE 2ND RESPONDENT ALONG WITH THE LIST OF THE CANDIDATES SELECTED AND ADMITTED FOR MBBS COURSE. P5: COPY OF THE LETTER DTD. 16/04/2008 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. Kss ..2/- ...2..... WPC.NO.20626/2009 W P6: COPY OF THE LETTER DTD. 19/03/2009 ISSUED BY THE 1ST RESPONDENT ALONG WITH THE LETTER DTD. 30/08/2008 ENCLOSED THEREIN TO THE 2ND RESPONDENT. P7: COPY OF THE REPRESENTATION DTD. 12/05/2009 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P8: COPY OF THE RELEVANT PORTIONS OF THE REGULATIONS OF MCI. P9: COPY OF THE JUDGMENT DTD. 21/01/2009 IN WPC.NO.3109/2008 AND CONNECTED CASES OF THE HON'BLE HIGH COURT OF DELHI. P10: COPY OF THE ORDER DTD. 4/09/2008 IN CIVIL APPEAL NOS.5518-5519/08 OF THE HON'BLE SUPREME COURT. P11: COPY OF THE ORDER DTD. 4/09/2008 IN SLP NOS.17995 - 17996/08 OF THE HON'BLE SUPREME COURT. P12: COPY OF THE ORDER DTD. 7/07/2009 OF THE 1ST RESPONDENT. P13: COPY OF THE INTERIM ORDER DTD. 29/01/2009 IN W.A.NO.209/2009 BY THIS HON'BLE COURT. P14: COPY OF THE ORDER DTD. 13/03/2009 ISSUED BY THE 1ST RESPONDENT. P15: COPY OF THE JUDGMENT DTD. 20/03/2009 IN W.A.NO.209/2009 OF THIS HON'BLE COURT, RESPONDENT'S EXHIBIT: R1(A): COPY OF THE ORDER ISSUED BY THE UNIVERSITY DTD. 18/07/2009. /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ---------------------------------------- W.P.(C).Nos.20626, 21562 & 21879 of 2009 ---------------------------------------- Dated this the 18th day of August, 2009. JUDGMENT Students, who are prosecuting their course in the MES of Medical College, Perinthalmanna, are the petitioners in these writ petitions. They are aggrieved by the decision of the Medical Council of India holding them ineligible to prosecute the MBBS Course and the consequential direction issued by the University of Calicut, to which their college is affiliated, requiring their registration to be cancelled. 2. Several contentions have been raised in these writ petitions challenging the orders issued by the Medical Council of India and the University and one among them is that the Medical Council of India has not heard the petitioners before passing the impugned orders. 3. The Medical Council of India has found that the petitioners had not secured the requisite percentage W.P.(C).No.20626/09 & Con. Cases. :: 2 :: of minimum eligibility marks in the entrance examination given by these petitioners. 4. General candidates are required to obtain 50% marks in the Entrance Examination and candidates belonging to OBC are required to obtain 40%. The petitioners had not obtained the requisite marks and hence are ineligible to prosecute the MBBS Course, is the finding of the Medical Council of India. Consequential orders have been issued by the University. 5. At the time when the writ petition came up for admission, I had directed the college authorities to affirm whether they had received the first order passed by the Medical Council of India on 30.8.2008. The college authorities have later filed an affidavit stating that they had not received the same. The Medical Council of India submits that the said order was sent by ordinary post on 30.8.2008 and the despatch is reflected in the register maintained in its ordinary course of business. This is a disputed fact, and I would have called for further materials throwing light on this W.P.(C).No.20626/09 & Con. Cases. :: 3 :: issue, but for the course of action, which I propose to take in these cases. 6. A similar issue was considered by me in W.P. (C)No.15733/09 and connected cases and I held that the students, who are declared to be ineligible by the Medical Council of India, are entitled for a hearing by the council. 7. Before a decision is taken, several aspects are to be taken into account by the statutory authority. I have, therefore, directed that the orders impugned in those cases be treated as show cause notices. Further directions have also been issued. I feel that the same directions can be adopted in these cases also. 8. Accordingly, the writ petitions are disposed of with the following directions: (a) The decision taken by the Medical Council of India, impugned in each one 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. W.P.(C).No.20626/09 & Con. Cases. :: 4 :: (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. (f) To enable the Medical Council of India to do so, the petitioners shall forward their mark lists showing the marks obtained by them in the competitive examination which they had participated. 9. Learned counsel for the petitioners submits that it may not be possible for the petitioners to get the W.P.(C).No.20626/09 & Con. Cases. :: 5 :: details of the marks obtained by them in the Entrance Examination conducted by the Commissioner in the year 2007. 10. I am not impressed by this submission. Obviously, the said results will be available with the Commissioner and the petitioners may ask for the results of the Entrance Examination conducted by the Commissioner in the year 2007. The Commissioner shall make available the marks, without delay. 11. I have not considered the validity of the action taken by the University. The contentions of the petitioners and the University regarding the same are left open. 12. It is made clear that the petitioners shall be permitted to be represented by an authorized representative, if they desire so. 13. The interim orders already already passed in these writ petitions shall continue to operate, till fresh orders are passed by the Medical Council of India, as directed above. W.P.(C).No.20626/09 & Con. Cases. :: 6 :: 14. If the Medical Council of India takes a decision in favour of the petitioners, it will be open to the petitioners to produce it before the University, who shall pass consequential orders. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//