IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 15671 of 2009(D) ---------------------------------------- PETITIONER(S): ------------------------- 1. ANSU ELIZABETH ALEX, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 2. ALLWIN JAMES K., MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 3. NITHYA ANN JACOB, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 4. ANITA SEBASTIAN, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 5. ANITHA FRANCIS, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 6. ANN MARIA SUNNY, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 7. ANJANA JOSE, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 8. SWEETY JOY E., MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 9. SHERIN.P.J., MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. Kss ..2/- ...2... WPC.NO.15671/2009 D 10. MERLIN VARGHESE, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 11. LINU BABY, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 12. MAHIMA ANTONY, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 13. AJAY BABU, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 14. LESLY SEBASTIAN, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. 15. ROSE MARY JOSEPH, MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR, TRICHUR. BY ADV. MR.GEORGE POONTHOTTAM RESPONDENT(S): ---------------------------- 1. MEDICAL COUNCIL OF INDIA, POCKET-14, SECTOR 8, DWARAKA, NEW DELHI-110077, REPRESENTED BY THE SECRETARY. 2. UNIVERSITY OF CALICUT, THENHIPALAM, REPRESENTED BY THE REGISTRAR. 3. THE PRINCIPAL, AMALA INSTITUTE OF MEDICAL SCIENCES, AMALA NAGAR P.O., TRICHUR. R1 BY ADV. MR.ALEXANDER THOMAS, SC, MCI R2 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UTY. R3 BY ADV. MR. KURIAN GEORGE KANNANTHANAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15671/2009 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO MBBS. P2: COPY OF THE ORDER IN I.A.NOS.1-2 AND 3 IN CIVIL APPEAL NO.2846 OF 2007 DTD. 24/07/07. P3: COPY OF THE ORDER IN I.A.NOS.1-3 IN CIVIL APPEAL NO.2846 OF 2007 DTD. 7/08/07. P4: COPY OF THE RELEVANT PORTION OF THE REGULATIONS OF THE MCI. P5: COPY OF THE COMMUNICATION NO.MCI-34(KER-13)2007-08 MC DTD. 3/07/2008. P6: COPY OF THE EXPLANATION DTD. 14/07/2008. P7: COPY OF THE REPRESENTATION DTD. 10/03/2009. P8: COPY OF THE ORDER IN CIVIL APPEALS NOS.5518-5519/09 DTD.4/09/2008. P9: COPY OF THE ORDER IN SLP NOS.17995 TO 17996 OF 2008 DTD.4/09/2008. P10: COPY OF THE JUDGMENT OF THE DELHI HIGH COURT DTD.21/01/2009. P11: COPY OF THE ORDER NO.MCI-NO.34(KER-13)2007-MC(UG)/1913 DTD. 19/04/2009. P12: COPY OF THE COMMUNICATION NO.EPR 1/3/1 MBBS/2008(1) DTD. 19/05/2009. P13: COPY OF THE INTERIM ORDER IN W.A.NO.209/09 DTD.29/01/2009. P14: COPY OF THE INTERIM ORDER IN W.A.N.209/09 DTD. 4/03/2009. P15: COPY OF THE INTERIM ORDER IN W.A.NO.209/09 DTD. 12/03/2009. P16: COPY OF THE ORDER NO.MCI-34(KER-15)2007-08-MC 53075 DTD. 13/03/2009. P17: COPY OF THE JUDGMENT IN W.A.NO.209/09 DTD. 20/03/2009. P18: COPY OF THE NOTIFICATION NO.EPR.1/3/1 MBBS DTD. 19/12/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) No. 15671 of 2009 -------------------------- Dated this the 8th July,2009 J U D G M E N T Petitioners are MBBS students studying in the 3rd respondent College. They had appeared for the Entrance Examination conducted by the Kerala Private Medical College Management Association in the year 2007. There is a detailed reference made in the writ petition to the manner in which the entrance examination was conducted by the Private Management Association. I do not propose to go into details in the nature of the limited issue that has ultimately been posed for consideration in this writ petition. 2. Suffice it to mention that the petitioners were admitted on the strength of their participation in the entrance examination held on behalf of the said Association. There is a dispute as to whether the petitioners secured 50% marks in the said entrance test. According to the petitioners as also the Association, they do not know the marks. According to the Medical Council as also the University, they did not secure 50% marks in W.P ( C) No. 15671 of 2009 2 the entrance test conducted by the Private Management Association. It is the Medical Council's stand that this conclusion has been drawn on the basis of the information conveyed to them by the respective colleges. 3. According to the University, though they had called for the details regarding the marks of these students, the institution did not furnish the same. Nor did the institution furnish the details regarding the admission procedure. 4. By Exhibit-P5, the Medical Council of India had required the Dean of the 3rd respondent to discharge the petitioners herein and three other students on the ground that they had not secured 50% marks in the Entrance Test conducted by the Management Association. The Management replied by Exhibit-P6 and thereafter by Exhibit-P7. The Medical Council considered the issue pursuant to a direction issued by this Court in WPC No.10949 of 2009 and by Exhibit- P11 they reiterated their earlier decision taken under Exhibit- P5. This was communicated to the University. The University issued Exhibit-P12, informing the 3rd respondent that the W.P ( C) No. 15671 of 2009 3 provisional registration granted to the petitioners in the First Professional MBBS Examination is cancelled since they were found to be ineligible for admission to the MBBS Course. Exhibit-P12 refers to Exhibit-P11 as well. 5. This writ petition has been filed challenging Exts. P5, P11 and P12. Other incidental reliefs have also been prayed for. 6. A detailed counter affidavit has been filed by the 2nd respondent University. According to the University, a student had to obtain a minimum 50% marks in a competitive entrance test as also in the qualifying examination. Petitioners have not obtained 50% marks in the competitive entrance test. There is no dispute that the petitioners had not participated in the common entrance test conducted by the Commissioner for Entrance Examination. To the knowledge of the University, petitioners have not obtained 50% marks in the entrance test conducted by the Management Association also. It is therefore the stand of the University that petitioners are not eligible to be registered for the First MBBS course even going by the regulations of the W.P ( C) No. 15671 of 2009 4 University, apart from the communication issued by the Medical Council. The University therefore defends Exhibit- P12 independently. 7. Heard learned counsel for the petitioner, Mr.George Poonthottam, learned counsel for the University Mr.P.C Sasidharan, Mr.Alexander Thomas, learned counsel for the Medical Council of India and Mr. Kurian George Kannanthanam, learned Senior Counsel appearing for the 3rd respondent. 8. Mr.Sasidharan points out that Ext.P12 is a communication issued by the University, affirming that the petitioners are not eligible and such ineligibility is qua the provisions of the University First Statutes and Regulations as well. Thus, according to him, the University is entitled to take note of the question as to whether the petitioners are eligible independent of the directive issued by the Medical Council of India. 9. Mr.Poonthottam submits that in the present case, essentially, the University has taken a decision to cancel the registration of the petitioners on the basis of the decision W.P ( C) No. 15671 of 2009 5 taken by the Medical Council of India. He submits that the consideration in this writ petition, notwithstanding the comprehensive reliefs prayed for in the writ petition, may be confined to the correctness of the directive issued by the Medical Council of India requiring the discharge of the petitioners. 10. I have taken note of the contentions taken by the University. Since the learned counsel for the petitioner has confined his challenge in this case to the correctness of Exhibits P5 and P11, I am confining my consideration to those aspects. Contentions of both sides as regards the correctness of Exhibit-P12 shall therefore be left open. 11. In so far as Exhibits P5 and P11 are concerned, the contention by the counsel for the petitioners is that since a direction to discharge the petitioners visits them with civil consequences, they should have been heard by the Medical Council before a final decision was taken. 12. Mr.Alexander Thomas, submits that further proceedings pursuant to Exhibit-P5 itself came to be issued pursuant to the direction issued by this Court in WPC W.P ( C) No. 15671 of 2009 6 No.10949/09 and this Court had not required any personal hearing to be afforded in view of the concession made by the petitioner management. This may be so. But I am of the view that since ultimately the students are effected, it would be appropriate that they are given a chance in this regard. 13. It cannot be gain said that the decision taken by the Medical Council of India would visit the petitioners/ students with civil consequences. In such circumstances, I am of the view that the Medical Council should hear the petitioners before taking a final decision qua the petitioners. 14. Accordingly, there will be a direction to the Medical Council of India to treat Exhibits P5 and P11 in relation to the petitioners as show cause notices. Petitioners shall be heard in person or through an authorised representative by the Secretary of the Council and such hearing by the Secretary will be treated as a hearing by the Medical Council of India itself. The hearing notes prepared by the Secretary shall be conveyed to the Executive Committee which will not be required to independently to hear the petitioners . A representative of the Management shall also W.P ( C) No. 15671 of 2009 7 be heard by the Secretary and any requisition by the Secretary to produce the details regarding the marks obtained by the petitioners, in the competitive entrance test, shall be complied with by the Management. The Secretary of the Medical Council of India shall issue a notice to the University and if the University so desires, a representative of the University shall also be heard. It is also open to the University to communicate their version to the Secretary of the M.C.I. The Secretary shall conduct a hearing within four weeks from the date of receipt of a copy of this judgment and a final decision shall be taken by the Executive Committee within four weeks from the date of conclusion of the hearing. It is open to the petitioners to submit a detailed representation before the Medical Council of India detailing their arguments. Writ petition is disposed of as above. (V.GIRI, JUDGE) ma W.P ( C) No. 15671 of 2009 8 W.P ( C) No. 15671 of 2009 9 W.P ( C) No. 15671 of 2009 10 Heard Sri. George Poonthottam, learned counsel for the petitioners, Sri.Alexander Thomas, learned counsel appearing for the Medical Council of India, Sri.P.C Sasidharan, learned standing counsel appearing for the University and Sri.Kurian George Kannanthanam, learned senior counsel appearing for the 3rd respondent. 2. Admit. Sri.Alexander Thomas takes notice for 1st respondent. Sri.P.C Sasidharan takes notice for 2nd respondent. Sri.Kurian George Kannanthanam takes notice for 3rd respondent. 3. Heard learned counsel on the question of interim W.P ( C) No. 15671 of 2009 11 relief. Sri.George Poonthottam submits that results of the petitioners in the First Year MBBS examination have not been declared by the respondent University, consequent upon the Medical Council of India intimating that registration of the petitioners are liable to be cancelled. Since they have not obtained minimum 50% marks in the Entrance Examination conducted by the Private Management Association in which the petitioners had participated in the year 2007. It is pointed out that the students as such were not intimated the marks, at any point of time, in the course of the process undertaken for effecting admission to the MBBS course in the year 2007. It is further contended that extremely peculiar circumstances prevailed in the year 2007. The consortium of private managements entitled to conduct common entrance examination were themselves obstructed in that regard. They had sought police protection. The matter went to the Supreme Court. The Supreme Court directed the Admission Supervisory Committee in the facts and circumstance of the case then prevailing, to supervise the conduct of the Common Entrance Examination. The Admission Supervisory W.P ( C) No. 15671 of 2009 12 Committee constituted under Section 4 of the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act 2004 conducted the examination. A rank list was published and handed over to the Management Association. It was not a case where the marks obtained by the individual students in the Common Entrance Test so conducted by the Admission Supervisory Committee were disclosed to the public. All these students who are now discharged from the college have done well in the qualifying examination and aggregate of the marks obtained by them in the qualifying examination and the entrance test formed the basis of ranking. They commenced their course and they have been prosecuting the same. 4. Substantial provisions of Act 19 of 2006 were stuck down by this court and an appeal preferred against the State is pending before the Supreme Court. Medical Council of India by Exhibit-P5 issued a notice to the Management requring them to discharge the petitioners and three other students belonging to OBC. At that point of time, the Management moved the Supreme Court and Supreme Court W.P ( C) No. 15671 of 2009 13 passed the following order in I.A.11-13 in Civil Appeal No.2846/2007 which reads as follows: “It was stated by learned counsel appearing on behalf of the applicants that the examinations are scheduled to be held from August 28, 2008 i.e day after tomorrow. On the facts and in the circumstances, in our opinion, ends of justice would be met, if as an interim measure, the 18 students whose names have been mentioned in the letter of Medical Council of India dated July 2003, 2008 (Annexure H) be allowed to appear in the examination scheduled to be held on August 28, 2008 subject to final outcome as well as further orders of this Court. It is also clarified that allowing to appear at the examination will not create any equity in favour of these students and they will not claim any benefit on such basis. 5. Pursuant thereto, students attended the examination. Results have not been published, awaiting orders from the Supreme Court. In the meanwhile, a similar issue was considered by the Supreme Court in the course of considering an appeal from Madhya Pradesh High Court. The Supreme Court as evidenced by Exhibit-P8 observed that the students who had not secured 50% marks in the Common Entrance Examination have been prosecuting their course and their admissions were directed to be treated as regular and W.P ( C) No. 15671 of 2009 14 the management was directed to surrender equal number of seats from the management quota for the subsequent year. The institution in the present case approached the Medical Council of India requesting a similar treatment subject to a similar burden. The Medical Council of India did not accept the same and struck to the earlier stand, evidenced by Exhibit-P11. Exhibits P5 and P11 communications issued by the Medical Council of India and consequential action taken by the University are under challenge in the writ petition. 6. I have referred to these facts in extenso since though arguments have been advanced by the learned counsel in the matter of interim relief, I think it is appropriate that the petitioners move the Supreme Court for an appropriate clarification, in relation to the order dated 26.8.2008 in I.A 11-13 in Civil Appeal No.2846/2007. 7. This is because the petitioners were permitted to participate in the First Year Examination as per the orders of the Supreme Court. The Supreme Court observed that there would not be equity in favour of students on the strength of such order nor would they be entitled to any relief on the basis W.P ( C) No. 15671 of 2009 15 of such participation. 8. Sri.George Poonthottam points out that the prime cause of action in the writ petition arises from the decision taken by the Medical Council of India and therefore a restraint inferable from the orders passed by the Supreme Court on 26.8.2008 should not really stand in the way of the reliefs prayed for by the students in the writ petition being considered on merits. I am afraid that since the eligibility of these students to participate in the First Year MBBS examination was derived from the order passed by the Supreme Court after the Medical Council of India first intimated the management of their alleged inability, it is only appropriate that the decision taken is clarified by the Supreme Court itself. 9. Sri.George Poonthottam submits that the order passed by the Medical Council of India impugned in these writ petitions were without notice to the student. This aspect relating to the orders passed by the Medical Council of India requires to be considered at the final stage of the writ petition and after counter affidavits are filed by the W.P ( C) No. 15671 of 2009 16 respondents. Post on 22.6.2009. (V.GIRI, JUDGE) ma W.P ( C) No. 15671 of 2009 17 W.P ( C) No. 15671 of 2009 18