IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20..02..2007 CORAM THE HONOURABLE MR.A.P. SHAH, CHIEF JUSTICE and THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.8029 of 2006 S.T.Krishnamoothi .. Petitioner Vs. 1. Union of India Rep. by its Secretary to Government Ministry of Human Resources & Development Shastri Bhavan New Delhi – 110 001 2. University Grants Commission Rep. by its Secretary Bahadur Shah Zafar marg New Delhi – 110 002 3. The All India Council for Technical Education Rep. by its Member Secretary Indira Gandhi Sports Complex I.P. Estate New Delhi – 110 002 4. Medical Council of India Rep. by its Acting President Dr.P.C.Kesavan Kutty Nair Pocket – 14, Sector – 8 Dwarka Phase – 1 New Delhi – 110 075 5. Rajendra Medical College Hospital & Research Institute (Extension Medical School of Southern Medical University, Govt. of China) Rep. by its President Mr.Pappa Rajendran Oragadam Village Mathur PO Kanchi Dt. - 602 105 https://hcservices.ecourts.gov.in/hcservices/ 6. Sri Balaji Medical College & Trust Hospital Rep. by its Dean No.7 Works Colony Chormepet Chennai – 44 7. Meenakshi Medical College & Research Institute (Deemed University) Rep. by its Dean Enathur Kancheepuram 8. Sri Ramachandra Medical College & Research Institute (Deemed University) Rep. by its Dean No.1 Ramachandran Nagar Porur Chennai – 116 9. Bharath Institute of Higher Education and Research (Deemed University) Rep. by its Registrar 173 Agaram Road Selaiyur Tambaram Chennai – 73 10. Amrita Vishwa Vidyapeetham (Deemed University) Rep. by its Registrar Ettimadai Coimbatore – 641 105 11. SRM Medical College Hospital & Research Institute (Deemed University) Rep. by its Dean SRM Nagar Potheri Kattankulathur Kancheepuram 12. Vinayaka Mission's Research Foundation (Deemed University) NH-47 Sankari Main Road Ariyanoor Salem https://hcservices.ecourts.gov.in/hcservices/ 13. Christian Medical College Rep. by its Dean Bagayam Vellore – 632 002 14. Raja Muthaiah Medical College Rep. by its Dean Annamalai Nagar Chidambaram 15. PSG Institute of Medical Sciences Rep. by its Dean Peelamedu Coimbatore 16. Dr.MGR Educational and Research Institute (Deemed University) Rep. by its Registrar E.V.R. Periyar Salai (NH4 Highway) Maduravoyal Chennai 17. Saveetha Institute of Medical and Technical Sciences (Deemed University) Rep. by its Registrar Saveetha Nagar Thandalam Post Sriperumbudur Taluk Kancheepuram District 18. Sri Chandrasekarendra Saraswathi Vishwa Mahavidyala, (Deemed University) Rep. by its Registrar, Enathur, Kancheepuram 631 561. 19. Shanmuga Arts Science Technology and Research Academy (Deemed University) represented by its Registrar, Thirumalai Samudram, Thanjavur-613 402. 20. Vellore Institute of Technology (Deemed University) represented by its Registrar, Vellore-632 104. 21. Sathyabama Institute of Science and Technology (Deemed University) represented by its Registrar Jeppiar Nagar, Old Mamallapuram Road, IT High way, Chennai-600 119. https://hcservices.ecourts.gov.in/hcservices/ 22. Karunya Institute of Science and Technology (Deemed University) represented by its Registrar, Karynya Nagar, Coimbatore-641 114. 23. Avinashilingam Institute for Home Science and Higher Education for Women (Deemed University) represented by its Registrar, Ayya Avinashilingam Nagar, Varapalayam, Coimbatore-641 108. ..Respondents. Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus commanding the first respondent to verify and publish for the benefit of the students, the legal status (recognition / approval) of the institutions and courses run by respondents 5 to 23, and cause publication of the mandatory disclosures, cited in para 8 of the affidavit, besides initiation of appropriate action, for Non-Compliance of the regulations / rules on the subject of technical and Medical / para- medical education. For Petitioner : Mr.V.Manikandan Vathan Chettiar For Respondent 4 : Mr.R.Singaravelan For Respondent 5 : Mr.S.K.Selvaraj M/s.S.Udayakumar SCGSC : Respondent 1 and 2. M/s.Muralikumar : Respondent 3. M/s.B.Saraswathy : Respondent 7 M/s.A.Jenasenan : Respondent 13 Mr.G.Rajagopalan, Senior Counsel for M/s.G.R.Associates : Respondent 19. M/s.Sathish Parasaran : Respondents 12 and 16. https://hcservices.ecourts.gov.in/hcservices/ O R D E R K. CHANDRU, J. This writ petition is filed in public interest seeking for a direction to the first respondent Union of India to verify and publish for the benefit of the students, the legal status (recognition / approval) of the Institutions and courses run by the respectfully 5 to 23, and cause publication of the mandatory disclosures cited in paragraph 8 of the affidavit and also to initiate appropriate action for non-compliance of the regulations / rules on the subject of technical, medical and para- medical education. 2. Excepting for the fifth respondent, the respondents 6 to 23 were all granted the status of Deemed University by the second respondent University Grants Commission [for short, 'UGC'] in terms of Section 3 of the University Grants Commission Act, 1956 [for short, 'UGC Act'] and they are fully under the supervision and control of the second respondent. Therefore, we directed the writ petitioner to confine his petition only with reference to the prayer regarding the fifth respondent, which has been shown as Rajendra Medical College Hospital and Research Institute. 3. We have heard Mr.V.Manikandan Vathan Chettiar, learned counsel appearing for the writ petitioner, Mr.R.Singaravelan, learned counsel appearing for the fourth respondent and Mr.S.K.Selvaraj, learned counsel appearing for the fifth respondent and perused the records. 4. Learned counsel appearing for the petitioner readily conceded and we directed notice to be issued only to the fifth respondent apart from the other official respondents. The learned counsel also submitted that the fifth respondent is not at all a Medical College either recognised by the fourth respondent Medical Council of India [for short, 'MCI'] or by the first respondent Union of India. It is neither deemed University in terms of Section 3 of the UGC Act nor is it affiliated to any University in terms of the UGC Act. The learned counsel also drew the attention of this Court to a newspaper advertisement given by the fifth respondent in the "Daily Thanthi", which is a leading Tamil Newspaper dated 25.02.2006 as well as on 05.3.2006. The said two advertisements are reproduced below: https://hcservices.ecourts.gov.in/hcservices/ Advertisement dated 25.02.2006 RAJENDRA MEDICAL COLLEGE HOSPITAL & RESEARCH INSTITUTE College : Oragadam Village, Mathur P.O. Kanchi Dt. - 602 105 Ph:0416 – 32003319, 32003480 Extension Medical School of SOUTHERN MEDICAL UNIVERSITY, GOVT. OF CHINA OPENING TODAY Admission MBBS Few Seats 2005-06 Only Eligibility:12th grade minimum 50% Marks in Physics, Chemistry, Biology Course : 5 Years. 2 Years Clinical rotation in Southern Medical University – China Eligible to practice in India on Passing the MCI Screening Test. SMU is Listed in WHO World Directory of Medical Schools NO DONTIONS – ONLY FEES – Separate Hostel for Ladies & Gents -------------------------------------------------------------------------- --- Admin. Office:No.537, Poonamallee High Road, Arumbakkam, Chennai-600 106. INDIA. Ph: 044-24759172, 24754433, 42660063/64/65, Cell : 9444029172, 9884170777 ADVERTISEMENT IN DAILY THANTHI Dt.05.3.2006 RAJENDRA MEDICAL COLLEGE HOSPITAL & RESEARCH INSTITUTE College : Oragadam Village, Mathur P.O. Kanchi Dt.-602 105. Ph:0416 – 32003319, 32003480 Joint Co-operation with Medical School of SOUTHERN MEDICAL UNIVERSITY, GOVT. OF CHINA Southern Medical University Government of China Admission 2005-06 NOW OPEN!| MBBS No Donations Pay only the fees Few Seats Separate Hostel only for Ladies & Gents Eligibility: *Minimum.12th grade Admin. Office: No.537, Poonamallee *50% marks in Physics High Road, Arumbakkam, Chennai- Chemistry, Biology 600 106. INDIA. https://hcservices.ecourts.gov.in/hcservices/ Course: Ph : 044-24759172, 24754433, * Total 5 years. 42660063/64/65. *2 years Clinical rotation Cell : 9444029172, 9884170777 in Southern Medical University-China (SMU is listed in WHO's WORLD DIRECTORY OF MEDICAL SCHOOLS) 5. Since the learned counsel for the petitioner submitted that the said institution is admitting students and collecting huge amounts, it is necessary to injunct them from running the institution as they have no affiliation with any University nor recognised by MCI. 6. This Court by an order dated 24.3.2006 directed the fifth respondent not to start the admission process or admit students until further orders. Thereafter, we also directed the Government Pleader to take the assistance of the Superintendent of Police of Kancheepuram District and to verify and inform about the status of the said institution. Accordingly, the Superintendent of Police, Kancheepuram District, sent a letter dated 27.4.2006 to the Government Pleader which the Government Pleader has also produced before us for the reference of this Court. It is convenient to reproduce the report verbatim. "As per the above said reference, I visited the premises where the Rajendra Medical College Hospital and Research Institute is functioning and the following details are furnished: 1. The Rajendra Medical College Hospital and Research Institute is functioning from the premises which was leased for a period of 24 months from Sakthi Educational Trust having address at Oragadam village (via) Padappai, Kanchipuram District. The M.B.B.S. Classes in this college started functioning from 25th February 2006. 2. There is no hospital and there is no research institute as claimed by the college in the premises. Also there is no lab for the students. Only a few class rooms are available. 3. The name board in the college mentions that the college is affiliated to the University of Health Sciences Antiua, West Indies. However, the college broachers (sic. Brochures) show that the college is an extension medical school of Southern Medical University, Government of China. Preliminary enquiry reveal that the students are learning the syllabus of MGR Medical https://hcservices.ecourts.gov.in/hcservices/ University, Tamil Nadu and the Southern Medical University, Government of China is not providing course materials or syllabus to the students. 4. The college is housed in an erstwhile Engineering College and the building construction is yet to be fully completed. No electricity connection is provided and the electricity demand is taken care of by a generator. No proper road is available to reach the college. 5. The Chairman and CEO of Rajendra Medical College & Research Institute Dr.Pappa Rajendran was recently arrested and remanded to Judicial custody on 11.4.2006 by Chennai City Police in Central Crime Branch Crime No.307/06 under Sections 406, 420, 465, 468 and 471 IPC. 6. The qualification of the staff, the facilities offered to the students, syllabus, course materials and academic schedule, the nature of link between Rajendra Medical College Hospital & Research Institute and the Southern Medical University, Government of China, all needs to be probed in detail." 7. Thereafter, the fifth respondent entered appearance and also sought to vacate the interim order granted by this Court. But, however, since the issue involves public importance, with the consent of the parties, it was decided to take up the main writ petition itself. In the meanwhile, the fourth respondent MCI also entered appearance and filed a counter affidavit regarding the status of the fifth respondent College. It is an admitted fact that the fifth respondent does not have any affiliation to any University or not recognised by the MCI. 8. The learned counsel for the fifth respondent has stated that they had entered into a joint collaboration with the Southern Medical University, China. The Southern Medical University agreed to cooperate with the fifth respondent College for the MBBS programme.. As per the agreement, the first two years of pre-medical studies and basic science would be in the fifth respondent College in India and two years clinical rotation would be in Southern Medical University, China and the final year study would be at the fifth respondent College. The examination will be conducted in China and the degree is also awarded by the Southern Medical University. It was also stated that there is no legal bar for the Indian citizen to get a medical qualification in any foreign country. It only requires that if a person requires such a foreign medical degree, https://hcservices.ecourts.gov.in/hcservices/ he should give an undertaking that without obtaining the Eligibility Certificate, he shall not be eligible to appear in the screening test and that the fifth respondent is functioning fully in accordance with the provisions of Section 13(4-A) and 13 (4-B) of the Indian Medical Council Act [for short, 'IMC Act']. It was further stated that the fifth respondent is a genuine institution and with the authority of the Southern Medical University, they will be conducting the pre-clinical training in India and will send the students for clinical rotation in the Southern Medical University for obtaining medical qualification. It was further stated that the students are fully aware of this condition and they are not misled by the fifth respondent in any event. It is also pointed out that there are some other institutions, which are preparing students in the similar fashion and it is their understanding that MCI had granted the Eligibility Certificate to those students to study in those Medical Colleges. It was further stated by them by an affidavit dated 27.4.2006 that the petitioner College admitted 33 students on the date of the affidavit and six out of them have left the College and they are not attending the College. 9. The learned counsel appearing for the fifth respondent thereafter drew the attention of this Court to the decision of the Kerala High Court and also the Andhra Pradesh High Court and stated that in view of those authoritative pronouncements, no action can be taken against the fifth respondent College for having entered into collaboration agreement with the Southern Medical University, Republic of China. He also drew the attention of this Court to an interim order dated 11.9.1997 passed by the learned single Judge of this Court in W.M.P.No.18290 of 1997 [R.Sethuraman v. Union of India and others] and other M.Ps. in W.P.No.11416 of 1997 which was also referred to by the Kerala High Court. 10. We have directed the office to circulate the papers relating to the said writ petition and it is found that the said writ petition is still pending for final disposal and it is only an interim order passed by the learned single Judge. We also found that in that writ petition, which was directed against various institutions running technical education sponsored by some foreign University, the prayer was to take suitable steps to prohibit foreign University conferring any degree in India either directly or by establishing centre through local establishments or otherwise. As it is only an interim order and since the main writ petition is yet to be disposed of, we do not express any final opinion on the said order. Even otherwise, the said order does not help the case of the petitioner. Further, in that case, there is no reference to IMC Act and the case did not deal with any medical education. We are also told that the All India Council of Technical Education [for short, 'AICTE'] is already making regulations permitting the technical education in India to have collaboration with foreign University or vice- versa. Since this case relates to medical education, we strictly confine our order only by interpreting the relevant legislation pertaining to medical education in India. https://hcservices.ecourts.gov.in/hcservices/ 11. With reference to the Division Bench decision of the Andhra Pradesh High Court dated 24.11.2002, the full text of the decision was not circulated before us. However, a reference to the said order is found in paragraph 47 of the judgment of the Kerala High Court made in W.P.(C) No.33104 of 2003 dated 27.01.2004. The passage extracted therein clearly shows that there was no discussion with reference to the various provisions of the IMC Act and largely, the Court went by the fact that there is no provision of law under which the Government can interfere with the conduct of classes by an institution, which is not affiliated either to any of the Universities in Andhra Pradesh or in India. 12. Turning to the decision of the learned single Judge of the Kerala High Court, we find that the Kerala High Court largely went by the fact that the institutions, which had similar claim as that of the fifth respondent, are not demanding any recognition of the qualifications either by the Central Government or by the MCI and that Section 10-A of the IMC Act has to be addressed to in the context of Section 10-A, 10-B and 10-C of the IMC Act and in terms of the said sections, the permission of the Central Government is required only for the recognition for medical qualifications. According to the Kerala High Court, a further reading of provisions of sub-section 4-A and 4-B of Section 13 of the IMC Act will clear the situation because those provisions provide that after undergoing constant training in any country outside India recognised for enrolment as medical practitioner, he shall not be enrolled by such Medical Council or Indian Medical Council unless the candidate is qualified in the screening test in India and by virtue of Section 13(3), a person who is an Indian citizen is not eligible for admission in any foreign country without the Eligibility Certificate issued. Therefore, the Court was of the view that the apprehension raised by the authorities that the students will be fleeced or they will be free from granting degree for under graduation should be checked in the absence of any legal bar. In the absence of legal prohibition, there was nothing wrong in the institution having such collaboration agreement with the Universities / Institutions. 13. However, Mr.R.Singaravelu, learned counsel appearing for the MCI drew the attention of this Court to the counter affidavit dated 29.9.2006 filed on behalf of the fourth respondent MCI and in paragraph 20, it is stated as follows: "It is further respectfully submitted that there is no permissibility under the provisions of the Act for any arrangement where the entire teaching and training of the candidate for a graduate medical course is not in the medical institution abroad. There is no permissibility for teaching and training partially in the foreign medical institution. In any case, there is no permissibility of any https://hcservices.ecourts.gov.in/hcservices/ teaching/training of any candidate stated to be undertaking a medical course, in a medical institution in India which has not obtained the statutory prior permission u/s 10A of the Act. It is most humbly submitted that if any such impermissible arrangement has been placed before the Hon'ble Court in the present proceedings, in the most humbly submission of the MCI, it being not permissible in law, would deserve appropriate prohibitory orders by this Hon'ble Court so as to protect the innocent and gullible students of this country." 14. In elaborating the said contention, the learned counsel also drew the attention of the communication dated 06.11.2006 sent by the fourth respondent MCI to their counsel that the Council has not been informed by the fifth respondent and no Eligibility Certificate was given by the MCI to the students of the fifth respondent College. MCI has given a public notice in the Times of India dated 16.8.2006 warning the students in getting admission to such institutions without the Eligibility Certificate. He also drew the attention of this Court to the communication dated 14.8.2006 sent by the MCI to the Union of India wherein it was clearly stated that Section 10-A of the IMC Act is clearly applicable to any institution. 15. In the light of the rival submissions made by the parties, it is necessary to examine the provisions of the UGC Act and IMC Act. The right to confer a degree has been dealt with under Section 22 of the UGC Act, which reads as follows: "22. Right to confer degrees.-- (1) The right of conferring or granting degree shall be exercised by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. (2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. (3) For the purposes of this section, "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette." 16. Further, the UGC Act also makes it an offence under Section 24 imposing a penalty on any person, who contravenes the provisions of Section 22 of the UGC Act. Once there is an obligation coupled with the penalty, the Section will have to be construed as mandatory. Therefore, https://hcservices.ecourts.gov.in/hcservices/ no institution in contravention of Section 22 can confer any degree. 17. With reference to the study in a foreign institution, Section 13 of the IMC Act provides for recognition of medical qualification granted by certain medical institutions whose qualifications are not included in the first or second schedule. Section 13 (4-A) and (4-B) of the IMC Act are extracted below: "(4-A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the said screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person. (4-B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub- section (4-A) : Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this sub-section but, if he is qualified for admission to any medical course for recognised medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register." https://hcservices.ecourts.gov.in/hcservices/ 18. With reference to the application of this provisions, the MCI has issued instructions and also prescribed a format and the finality of the format prescribed is pending consideration by the Delhi High Court in W.P. (C) No.12792 to 12797 of 2006 in the case of Ishan Kaul and others. Therefore, suffice to say that we are not concerned with a case of the student or any parent coming on his behalf to this Court for Eligibility Certificate so as to enable them to join in any foreign University. 19. The present case stands on a completely different footing. Even as per the admission of the fifth respondent, which is referred to earlier, that the collaboration agreement they had allegedly signed with the Southern Medical University, Republic of China, the two years of pre- clinical and basic studies will be imparted in India and also final year study will be in the fifth respondent College. This position has been reiterated in more than one place in the counter affidavit. It has also been referred to in the advertisement extracted above. 20. Apart from that, the advertisement also shows that the fifth respondent College is an extension Medical School of the Southern Medical University, Republic of China and it is further advertised that the students who are undergoing the Course are eligible to practice in India after passing screening test in India. Even though it is claimed that two years study would be imparted in Southern Medial University, China, the first two years and the last year will be imparted in the fifth respondent College at Kancheepuram, the report submitted by the Superintendent of Police clearly shows that there is not even any laboratory facility and only a few class rooms are available and no course material or syllabus of the Southern Medical University