Sri Muthukumaran Educational Trust vs Medical Council of India

By consent of all parties, both the writ petitions are taken up for final disposal.

In W.P. No. 16688 of 2011, the Petitioner haschallenged the order of the Medical Council of India dated23.6.2011. In W.P. No. 16695 of

2011 the consequential orderpassed by the Selection Committee, Directorate of MedicalEducation dated 11.7.2011 is challenged by the

samePetitioner.

Both the impugned orders are passed on the groundthat Sri Muthukumaran Medical College Hospital and ResearchInstitute, Chennai-69

(hereinafter called as ''MedicalCollege''), which was established by the Petitioner Trust asa Self-financing Linguistic Minority Medical

College,admitted eight students in excess than the permissiblestrength of 75 seats allotted to the management quota and therefore the said eight

seats have to be surrendered bythe management back to the Government for selection ofcandidates for admission under the Government Quota

for theacademic year 2011-2012.

The facts necessary for disposal of these writ petitions are as follows:

(a) The Medical College was granted approval forconducting M.B.B.S. Course by the Medical Council of Indiafor the academic year 2010-2011

by order dated 14.5.2010for an intake of 150 students. The Tamilnadu Dr. M.G.R. Medical University also granted affiliation for theacademic

year 2010-2011. The Petitioner College is grantedminority (linguistic) status by the Government of Tamilnadu.

(b) As per the seat arrangement 50% of the sanctionedintake of the students shall be admitted under themanagement quota and the remaining 50%

of the seats are tobe surrendered to the Government of Tamilnadu for fillingup of the seats under Government quota for the academicyear 2010-

2011. Accordingly, the management surrendered 75seats to the Government of Tamilnadu and filled up theremaining 75 seats under the

management quota before thelast date of admission, that was on 30.9.2010.

(c) The Selection Committee allotted 75 candidates tothe Petitioner Medical College, admitted throughcounselling under the Government quota,

and out of the 75seats, 67 students alone approached the College withallotment letters upto 5.00 p.m. on 30.9.2010 and eightstudents did not

report for admission before the prescribedtime. The College waited till 5.00 p.m. on 30.9.2010 andthe 8 students having not reported for

admission, themanagement treated the said eight seats as lapsed seats andadmitted eight other students under the lapsed seatscategory.

(d) According to the Petitioner, if the lapsed seatsare not filled up, the management will incur huge loss ofincome for the whole period of course of

41/2 years, whichwill not be compensated by the Government. Therefore, itis the contention of the Petitioner that the Petitioner hadnot admitted

students in excess of the management quota.

(e) The Petitioner received a communication dated27.4.2011 from the Medical Council of India stating thatthe management had admitted eight

students in excess of itsmanagement quota and called upon to clarify along withdocumentary proof. The Petitioner submitted

arepresentation/clarification stating that till 5.00 p.m. on30.9.2010 eight students selected through counselling have not turned up and therefore the

seats were filed up underlapsed seats category, which shall not be treated asmanagement quota seats.

(f) On 23.6.2011 the impugned order was passed by theMedical Council of India stating that the eight seatshaving been filled up in excess of the

management quota forthe academic year 2010-2011, the management should restrictits admission of students to 67 i.e, reducing 8 seats forthe

academic year 2011-2012.

(g) The Directorate of Medical education issuedconsequential order dated 11.7.2011 giving direction to themanagement to surrender eight seats to

the Government quotaso as to have 83 seats for allotment by the Governmentthrough single window system for the academic year 2011-2012.

(h) The above said orders are challenged in thesewrit petitions on the ground that the management havingadmitted eight students under the lapsed

seats category dueto non-joining of the Government sponsored students, thesaid admissions cannot be treated as management quota seatsand

should be treated as lapsed seats category and non-consideration of the said aspect in spite of submission ofrepresentation to the Medical Council

of India is arbitraryand violative of Article 14 and 19(1)(g) of the Constitution of India. The Medical College being alinguistic minority Medical

College is entitled to admit 75students under its management quota for the academic year2011-2012 and if eight seats are surrendered to

theGovernment, serious prejudice would be caused to thePetitioner and therefore the impugned orders are to be setaside.

The Directorate of Medical Education filed acounter affidavit stating that in G.O.(D) No. 557 Health andFamily Welfare (MCI-1) Department,

dated 7.6.2011apportionment of seats between Government and Management ofUnaided Medical, Dental Colleges for 2011-2012, was

issuedfixing 65% seats to Government and 35% seats to themanagement for non-minority institutions; and 50% seats forminority institutions and

the remaining 50% be treated asGovernment quota. In this regard a communication was sentto the Colleges on 10.6.2011 and the Petitioner

medicalcollege also sent a reply surrendering 50% of seats (75seats). The order issued by the Medical Council of Indiadated 23.6.2011 was

received by the Directorate of MedicalEducation as well as by the Government and it was noticedthat for the academic year 2010-2011 the

managementadmitted students in excess of the management quota and as per the Supreme Court judgments, the excess admissions madeshall be

surrendered to the Government for admission in thenext academic year 2011-2012. The order passed by thisCourt in W.P. No. 15651 of 2009 is

also relied on to sustainthe impugned orders. It is further stated that against thePetitioner Medical College, one S. Kiruthika filedW.P. No. 22760

of 2010 and complained about the denial ofadmission; so also one J.E. Ramjee filed W.P. No. 22754 of2010 seeking refund of Rs. 25,000/-as he

was not permittedto join the course; 10. Mr.S.T.S.Moorthy, one V. Sindhu also gave a complaint to the Honourable Chief Minister stating that she

was notpermitted to join in the college; and one S.P. Murali alsoalleged irregularities of admission in the management quotathrough consortium and

a complaint to that effect was givento the Principal Secretary to the Government, Health andFamily Welfare Department, Chennai-9. Stating all

theabove said reasons it is contended that the Respondents arejustified in giving direction to surrender eight seats tothe Government by reducing

the management seats to 67 forthe academic year 2011-2012.

No counter affidavit is filed by the MedicalCouncil of India. Mr. V.P. Raman, learned Standing Counselappearing for the Medical Council of

India argued the legal points.

Mr. G. Masilamani, learned Senior Counsel appearingfor the Petitioner Trust argued that as per the selectionorder issued by the Selection

Committee, all the studentsselected through counselling have to report and getadmitted by remitting the fees before 5.00 p.m. on30.9.2010, but

eight candidates failed to report foradmission before that time and hence after 5.00 p.m. themanagement treated the said eight seats as lapsed seats

andimmediately admitted eight other candidates under lapsedseats category on 30.9.2010 itself as the said date beingthe cut-off date for admission

for MBBS course fixed by theHonourable Supreme Court. The learned Counsel submittedthat the writ petition filed by the said S. Kiruthika

wasdismissed, against which she filed W.A. No. 2240 of 2010 andthe Division Bench of this Court though not approved thedenial of admission to

the said S. Kiruthika, taking note ofthe admission of other candidates, ordered to pay acompensation of Rs. 10 lakhs and Rs. 50,000/-as

litigationexpenses by the management and she was permitted to appearfor selection in the next selection to MBBS course for theacademic year

2011-2012. The learned Senior Counsel alsosubmitted that as against the said Division Bench order order, SLP. No. 2197 of 2011 was filed and

the payment ofcompensation and cost ordered by the Division Bench wasstayed on 8.2.2011. Another interim order was passed bythe

Honourable Supreme Court on 13.5.2011 giving directionto the management to admit the said S. Kiruthika in thefirst year MBBS course during

the academic year 2011-2012against non-government quota, subject to the final decisionin the matter.

The learned Senior Counsel further submitted thatthe said S. Kiruthika has not approached the management tilldate and if she approaches the

management, she has to beprovided with a seat under the management quota. Thelearned senior Counsel further argued that the writpetition filed

by the said J.E. Ramjee is for compensationand the six other students have not complained and themanagement has no knowledge about the

complaint said tohave been given to the Honourable Chief Minister or to theHealth Secretary. The learned Senior Counsel alsosubmitted that the

Division Bench of this Court in thedecision reported in 2010 WLR 1107 (Medical Council ofIndia v. The Chairman, Sree Mookambika Institute

of MedicalSciences and Ors.) considered similar issue regarding thepower of the Medical Council of India giving direction to adjust admission

given by the management more than theprescribed quota of 50% in respect of Sree MookambikaInstitute of Medical Sciences and others, which is

also alinguistic minority college wherein 11 candidates failed tojoin the course till the last date and thereafter themanagement filled up the 11

vacancies by admitting thestudents therein. The said judgment was pronounced by theDivision Bench considering the judgments of the

SupremeCourt viz., Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, and (2005) 13 SCC 466 (Al-KarimEducational

Trust v. Medical Council of India). Accordingto the learned Senior Counsel the order of the MedicalCouncil of India to surrender 11 seats for the

nextacademic year was set aside by the learned single Judge,which was confirmed by the Division Bench. The learnedSenior Counsel further

submitted that even though SLP wasfiled against the said decision in SLP No. 9 of 2011, nostay of the operation of the judgment of the Division

Benchwas granted by the Honourable Supreme Court and the SLP wasadmitted on 14.1.2011. Therefore the matter in issue iscovered by the said

Division Bench Judgment.

Mr. V.P. Raman, learned Counsel appearing for theMedical Council of India submitted that the judgments of the Supreme Court reported in

Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, and (2005) 13 SCC 466 (Al-Karim Educational Trust v. Medical

Council ofIndia) even though were referred in the decision of theDivision Bench, the findings therein are not properlyappreciated by the Division

Bench and therefore theDivision Bench decision may not be applied and the impugnedorder passed by the Medical Council of India is valid.

Thelearned Counsel further submitted that even assuming thatthe Medical Council of India is not having power to issuethe impugned order, the

State Government has got everypower to give direction to surrender eight seats as themanagement admitted 83 students, though it was entitled

toadmit only 75 seats.

Mr. S.T.S. Moorthy, learned Special GovernmentPleader supported the submissions of the learned Counselfor the Medical Council of India

and submitted that theorder passed by the Directorate of Medical Education is tobe treated as independent one without reference to theorder of

the Medical Council of India and theDirectorate/Government has got every right to direct themanagement to surrender eight seats as the

managementadmitted more than its allotted seats 2010-2011.

I have considered the rival submissions of thelearned Senior Counsel for the Petitioner Trust, learnedStanding Counsel for the Medical Council

of India and thelearned Special Government Pleaders for the Directorate ofMedical Education.

The facts in these cases i.e, the Petitioner management admitted 83 students in the first year MBBS course during the academic year 2010-

2011 under its discretion is not in dispute. The contention of themanagement is that eight students allotted by the SelectionCommittee, constituted

by the Government of Tamilnadu, havenot turned up before the stipulated time and date forgetting themselves admitted and remitted their fees,

thatwas before 5.00 p.m. on 30.9.2010 and therefore themanagement treated the said eight seats as lapsed seatsafter 5.00 p.m. as no other

students were sponsored/sent bythe Selection Committee for admission under the Governmentquota. All the eight seats which were vacant by 5.00

p.m.on 30.9.2010 were filled up by the management and there isfactually 83 admissions made by the management, i.e., 75under management

quota and 8 under the lapsed seatscategory.

The Honourable Division Bench of this Court inW.A. No. 2240 of 2010, judgment dated 7.1.2011 gave a findingthat the admission to the

Appellant therein (S. Kiruthika)under the Government quota was deliberately denied by thePetitioner management. The Division Bench after

narratingthe facts of the said case in paragraphs 12, 13 and 15 held as follows:

Considering all these facts itis evidently clear that the Appellantwas denied admission by the 4th Respondent college only because shereached

the college after 5.00 p.m. on30th Sept., 2010. The only purpose ofdenial was to get the seat reverted tothe management quota and to

accommodatethe candidates as per the choice of thecollege and on receipt of fees ordonation as fixed by the College. Suchprocedure for reverting

back Governmentquota seat under the management quota onthe same day after 5.00 p.m. and takingadmission of the candidates under

themanagement quota is highly illegal,arbitrary, malicious and unjustified. Although such practices are prevalent inunaided medical colleges in the

country,especially in the State of Tamil Nadu,where there is a mushroom growth of private medical and engineeringcolleges, which has become a

business,but the Medical Council of India is nottaking any action against those medicalcolleges.

This is such a heart burningcase where a minor girl, after securinghighest marks i.e., 1137 out of 1200 wasallotted a seat in MBBS course

under theGovernment quota in the 2nd counselling,but was denied admission only because ofher late arrival after 5.00 p.m. Thecareer of the

Appellant, a village girl,hailing from backward community has beenruined because earlier she got admissionin the BDS course in the 5th

Respondentcollege, wherefrom she obtained transfercertificate and other documents in orderto get admission in the MBBS course.

The malafide of the fourthRespondent-college is manifestlyapparent and the conduct of the collegecannot be approved. ..........

Ultimately the Division Bench was of the view that theadmission given to the candidates under the managementquota after 5.00 p.m. on 30.9.2010

cannot be cancelled andthe Appellant was awarded with a compensation ofRs.10,00,000/-and Rs. 50,000/-towards litigation expenses. The said

finding given by the Division Bench was challenged in SLP and the order granting compensation and cost to thesaid candidate was stayed by the

Honourable Supreme Courtin SLP No. 2197 of 2011 by order dated 8.2.2011. Thecandidate was given interim relief by giving direction tothe

Petitioner management to admit her under the managementquota during the academic year 2011-2012 by order dated13.5.2011. Thus, it is

manifest that out of the 75 seatsavailable for the management for the academic year 2011-2012, one seat gets reduced by accommodating the

saidS. Kiruthika. The said SLP is still pending before theHonourable Supreme Court and the findings arrived at by theDivision Bench has not been

stayed. The said aspect,namely reduction of one seat under the management quota forthe academic year 2011-2012 was not considered by

theMedical Council of India as well as the Directorate ofMedical Education while passing the impugned orders.

The issue as to the candidates selected under theGovernment quota if not turned up for admission before thetime granted for admission,

whether such seats could betreated as lapsed seats or not was considered in thedecision reported in (2010) 1 MLJ 923 (Chairman,

SreeMookambika Institute of Medical Sciences Velayutham PillaiMemorial Hospital Complex v. Union of India). The Medical Council of India

having aggrieved, filed writ appeal beforethe Division Bench and the said judgment is confirmed inthe decision reported in 2010 WLR 1107

(Medical Council ofIndia v. The Chairman, Sree Mookambika Institute of MedicalSciences and Ors.). In the said decision also the twodecisions

of the Supreme Court reported in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, and (2005) 13 SCC 466 (Al-Karim

Educational Trust v. Medical Council of India) were considered and held that theMedical Council of India can verify whether any institutionhas

admitted more than the sanctioned strength or not and it has no role to say regarding the seat sharing arrangement between the State Government

and the management. In terms of the said judgment the excess admission made, claiming it as lapsed seats category by themanagement of Sree

Mookambika Institute of Medical Scienceswas not allowed to be admitted under Government quota inthe subsequent year 2010-2011. It is

admitted by all thelearned Counsels that though SLP No. 9 of 2011 wasadmitted, no stay of the operation of the said judgment wasordered by the

Honourable Supreme Court. As a single Judgedealing with identical issue, I am bound by the judgment ofthe Division Bench, particularly when no

stay is granted bythe Honourable Supreme Court.

The decision cited by the learned SpecialGovernment Pleader in W.P. No. 15651 of 2009 dated 16.9.2009relating to excess admission made

by MelmaruvathurAdhiparasakthi Institute for the year 2008-2009 wasrendered prior to the Division Bench judgment reported in2010 WLR

1107 (Medical Council of India v. The Chairman,Sree Mookambika Institute of Medical Sciences and Ors.). Therefore I am unable to follow the

said judgment in thiscase.

It is worthwhile to point out that this kind ofsituation could have been avoided if the SelectionCommittee was vigilant enough to allot the

Government quotastudents to the Private Medical Colleges, by givingsufficient time for the candidates to join, at least tendays before the cut-off

date for admission into MBBS Course, i.e., before 30th September of the calendar year,so that if any candidate selected through counsellingfailed

to join, the managements will be compelled to reportthe matter to the Selection Committee and the SelectionCommittee will have sufficient time to

sent candidates, whoare waiting for admission. If such procedure is adopted,all the seats under the Government quota can be filled up every year

without any difficulty. Since the candidatesselected through counselling are not given sufficient time,such kind of complaints are raised against the

managementsenabling the managements to accommodate the candidates oftheir choice on extraneous circumstance as observed by theDivision

Bench in W.A. No. 2240 of 2010 dated 7.1.2011. Itis also an admitted fact that in every academic year,admission of candidates for M.B.B.S.

Course commences atleast in the month of July and the admission need not bedelayed till the last moment i.e, till the end of Septemberevery year.

The classes for the course also commences inthe first weeks of August every year. If filling up of allthe Government quota seats are completed in

advance, i.e.,prior to the cut-off date of 30th September every year, thiskind of complaints against the managements can be avoidedand

meritorious students waiting for admission underGovernment quota will be in a position to get seats inprivate medical colleges according to their

rankings. TheSelection Committee, Government and Medical Council ofIndia are very much aware of loss of 11 seats to SreeMookambika

College for admission in the academic year 2009-2010 and 8 seats in the case of the Petitioner College inthe academic year 2010-2011. Hence a

direction is issuedto the Selection Committee to see that the admissions in all medical colleges including the self-financing collegesunder the

Government quota are completed well in advance asfar as possible, though 30th September of each academic year is fixed as the last date.

These writ petitions are allowed by following the Division Bench judgment reported in 2010 WLR 1107 (Medical Council of India v. The

Chairman, Sree Mookambika Institute of Medical Sciences and Ors.). If the SLP filed against the said judgment viz., SLP No. 9of 2011 is

allowed by the Honourable Supreme Court, thesaid management will be forced to surrender 11 seats. Therefore it is observed that if SLP No. 9

of 2011 isallowed, it is open to the Respondents herein to passappropriate orders directing adjustment of seven (7) seatsin future in respect of the

Petitioner College also. Nocosts. Connected miscellaneous petitions are closed.