Medical Council Of India vs Jss Medical College & Anr

MEDICAL COUNCIL OF INDIA ... Appellant

Versus

JSS MEDICAL COLLEGE & ANR. ... Respondents

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Medical Council of India, aggrieved by the

interim order dated 24th August, 2011 passed by a

Division Bench of the Karnataka High Court in Writ

Petition No. 31587 of 2011 whereby it had permitted

JSS Medical College, Respondent No. 1 herein, to

increase the seats for MBBS Course from 150 to 200

for the academic year 2011-2012, has preferred this

special leave petition.

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2. Leave granted.

3. In view of the order which we propose to pass in

this appeal it is inexpedient to give in detail the

facts of the case. Suffice it to say that JSS

Medical College, Respondent No. 1 herein (hereinafter

referred to as `the College'), is recognized for

imparting MBBS education with intake capacity of 150

students. On 27th of November, 2010, the College

submitted an application for increase of intake

capacity for the MBBS Course from the academic year

2011-2012 from 150 to 250. The Board of Governors,

the body to which power has been vested to carry out

the functions and duties of the Medical Council of

India (hereinafter referred to as `the Board of

Governors') appointed assessor by order dated 23rd of

February, 2011 to assess the physical and other

teaching facilities available for grant of letter of

permission for the increase of MBBS seats from 150 to

250 to the College for the academic year 2011-2012.

4. In the light of the aforesaid order the assessor

visited the College and made assessment of the

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physical and other teaching facilities available for

grant of letter of permission for increase of MBBS

seats from 150 to 250 and submitted its report. The

assessment report was considered by the Board of

Governors which decided not to issue letter of

permission for increase of seats as the

infrastructure facilities, clinical material and

faculty were inadequate. It also found deficiency in

equipments and other deficiencies as pointed out in

the assessment report. Accordingly, the Board of

Governors by its letter dated 5th of May, 2011 called

upon the College to submit its response as to why its

proposal for increase of seats be not disapproved and

returned. The College by its letter dated 21st May,

2011 submitted its response and claimed that it has

adequate infrastructure, clinical material and

teaching facilities to meet the teaching and training

requirement for the enhanced intake of 250 students

and, at the same time, wrote that in the event of the

Board of Governors finding that the same are not

adequate for granting increase of seats to 250, the

request may be considered for enhanced intake from

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150 to 200 seats. The compliance report submitted by

the College along with assessment reports of the

assessor were forwarded by the Board of Governors to

the assessor by letter dated 1st of June, 2011 for

their perusal and for carrying out the assessment for

increase of MBBS seats from 150 to 250. It is

relevant here to state that the College by its letter

dated 3rd of June, 2011 wrote to the Coordinator of

the assessment team "to revise the assessment for

increase of MBBS seats from 150 to 200 admissions

instead of 250 seats". By the said letter the

College claimed that it had infrastructure

facilities, clinical materials and teaching

facilities including the instruments for 200

admissions for MBBS Course.

5. The claim for increase of seats from 150 to 250

was considered and the Board of Governors decided "to

return the applications as disapproved for increase

of seats from 150 to 250" for the academic year 2011-

2012 by its letter dated 30th of June, 2011. The

College by its letter dated 8th of July, 2011 made

request for reconsideration of increase of seats from

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150 to 200 inter alia stating that "the team of

assessors who visited the College on 3rd of June, 2011

after assessing the seats have not only recommended

for continuation of 150 seats but also have

recommended for additional 50 seats intake taking

into account adequacy of additional facilities, book

space, equipment and other facilities". The Board of

Governors reconsidered the claim of the College with

regard to increase of seats in MBBS Course from 150

seats to 200/250 seats and decided to reiterate its

earlier decision as the cut of date for issuance of

letter of permission, i.e., 30th of June, 2011 is

already over.

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6. Aggrieved by the same, the College filed the writ

petition inter alia praying for quashing the decision

of the Board of Governors dated 30th of June, 2011 and

5th of August, 2011 by issuance of a writ in the

nature of certiorari or any other appropriate writ

and further prayed for issuance of a writ in the

nature of mandamus directing the Medical Council of

India for issuance of letter of permission for

increase of intake in its MBBS Course from 150 to 200

for the year 2011-2012 as also to admit 200 students.

By way of interim relief the petitioner made the

following prayer :

"Pending disposal of the above writ petition, it is prayed that this Hon'ble Court may be pleased to permit the petitioner institution to admit to an intake of 200 students for its MBBS course as per recommendation of its expert body, subject to further orders of this Hon'ble Court in the interest of justice and equity"

By the order impugned the High Court passed the

following interim order :

"The petitioner institution is permitted to increase the intake of MBBS students from 150 to 200 for the academic year 2011-2012. Medical Council of India is at liberty to indicate any deficiency if it comes across for the intake of 200 seats in MBBS for the academic year 2011-2012 and direct

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compliance of the same within three months from the receipt of their communication.

This order is subject to final result in the writ petition".

7. Mr. Nidesh Gupta, Senior Advocate appears on

behalf of the appellant whereas Respondent No. 1 is

represented by Mr. K.K. Venugopal, Senior Advocate.

To put the record straight Senior Counsel

representing the parties had addressed us in detail

and invited us to finally pronounce the judgment on

all issues. At one stage we were inclined to do that

but finding that the present appeal is against an

interim order and the High Court is yet to finally

pronounce the judgment on merits, we declined to take

the final call and intend to decide the validity of

the interim order only.

8. Power to grant final relief implies within itself

power to grant interim relief unless it is

specifically prohibited by law. However, in the

facts and circumstances of the case we are of the

opinion that the High Court erred in permitting the

increase of the seats by an interim order. It is not

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in dispute that the Board of Governors for exercise

of its statutory power under Section 10.A of the

Medial Council of India Act, 1956 has fixed various

schedules including last date for submission of the

application for increase in the seats as also the

date till when the Board of Governors had to take the

decision. It is an admitted position that the

College had made request for increase of seats from

150 to 250 within the time prescribed. It had not

filled application for increase from 150 seats to 200

seats within the time stipulated but made request for

increase of 200 seats after the assessor's report.

It is not on prescribed format but by means of a

letter. By that time the schedule fixed for increase

of seats by the Board of Governors had

already expired.

9. In view of these facts, following questions arise

for consideration:

1. Whether or not the application filed by

the College later on for consideration

of its claim for the reduced seat of 200

after the expiry of period will date

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back to the date of original

application?

2. Whether or not the application for

increase filed after the scheduled date

is required to be considered?

3. Whether or not the assessors exceeded in

its jurisdiction to consider the claim

of the College for increase of 200

seats, when undisputedly they were

assigned the task of assessing the

College's claim for increase of

250 seats?

4. Whether or not the Board of Governors

was right in rejecting the claim of the

College on the expiry of the outer limit

by which the decision to increase the

number of seats was to be taken by it?

5. Whether or not the High Court while

exercising the power under Article 226

and 227 of the Constitution of India

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could straightaway permit increase of

seats or direct for consideration of the

claim by the competent authority?

10. Without adverting to the aforesaid issues and

many other issues which may arise for determination,

the High Court, in our opinion, erred in permitting

increase in seats by interim order. In normal

circumstances the High Court should not issue interim

order granting permission for increase of the seats.

High Court ought to realize that granting such

permission by an interim order has a cascading

effect. By virtue of such order students are

admitted as in the present case and though many of

them had taken the risk knowingly but few may be

ignorant. In most of such cases when finally the

issue is decided against the College the welfare and

plight of the students are ultimately projected to

arouse sympathy of the Court. It results in very

awkward and difficult situation. If on ultimate

analysis it is found that the College's claim for

increase of seats is untenable, in such an event the

admission of students with reference to the increased

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seats shall be illegal. We cannot imagine anything

more destructive of the rule of law than a direction

by the court to allow continuance of such students,

whose admissions is found illegal in the ultimate

analysis. This Court is entrusted with the task to

administer law and uphold its majesty. Courts cannot

by its fiat increase the seats, a task entrusted to

the Board of Governors and that too by interim order.

In a matter like the present one, decisions on issues

have to be addressed at the interlocutory stage and

they can not be deferred or dictated later when

serious complications might ensue from the interim

order itself. There are large number of authorities

which take this view and instead of burdening this

judgment with all those authorities it would be

sufficient to refer to a three Judge Bench decision

of this Court in the case of Medical Council of India

v. Rajiv Gandhi University of Health Sciences, (2004)

6 SCC 76, in which it has been held as follows:

"14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim

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orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions."

11. For all these reasons we are of the opinion that

the interim order passed by the High Court is

unsustainable. Any observation made by us in this

judgment is for disposal of the present appeal and

shall have no bearing on the merits of the case.

Further, as the matter pertains to increase in seats

in educational institution, we deem it expedient that

the High Court considers and disposes of the case on

merit expeditiously.

12. Resultantly, we allow this appeal, set aside the

impugned interim order of the High Court with the

observation aforesaid. However, there shall be no

order as to costs.

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...................................................................J (H.L. DATTU)

...................................................................J (CHANDRAMAULI KR PRASAD)

New Delhi, January 11, 2012.

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