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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 306 OF 2015
Sree Balaji Medical College and Hospital and another … Petitioner (s)
JUDGMENT
1. The Indian Medical Council Act, 1956 (hereinafter referred to as “the Act” specifically provides for recognition of medical qualification granted by universities or medical institutions either in India or abroad. Once a medical qualification granted by a medical institution in India is recognized by the Central Government, whether recognition is also required for the admission capacity which is increased from time to time or whether permission of the Central Government alone is required for such an increase in the REPORTABLE Page 2 admission capacity in the recognized course, is the question of law arising for consideration in this case.
2. Recognition of medical qualification granted by universities or medical institutions in India is dealt with under Section 11 of the Act. The provision reads as follows:
3. Section 10A of the Act deals with the permission for establishment of new medical college, new course of study and Page 3 admission capacity. To the extent relevant, Section 10A(1) of the Act reads as follows: “10A.
PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.
1. Notwithstanding anything contained in this Act or any other law for the time being in force:-
1. no person shall establish a medical college; ( or )
2. no medical college shall- (i). open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii). increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1 - For the purposes of this section, "person" includes any University or a trust but does not include the Central Government. Explanation 2 - For the purposes of this section "admission capacity" in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may Page 4 be fixed by the Council from time to time for being admitted to such course or training.”
4. Section 10B of the Act deals with the non-recognition of the medical qualifications in certain cases. The provision reads as follows: “10B. Non-recognition of medical qualifications in certain cases.- (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college shall a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training (including a postgraduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act. (3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation - For the purposes of this section, the criteria for identifying a student who has been Page 5 granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.” (Emphasis supplied)
5. It is clear from the scheme of the Act, as per the relevant provisions extracted above, that recognition and permission are two different concepts. Recognition is of a medical qualification, ordinarily known as a course conducted by an institution which is also to be recognized.
6. Section 11(2) of the Act provides that the medical qualifications and the institutions thus recognized are to be notified in the First Schedule. The First Schedule is titled as “RECOGNITION OF MEDICAL QUALIFICATIONS GRANTED BY THE UNIVERSITIES OR MEDICAL INSTITUTIONS IN INDIA”.
7. Section 10A of the Act deals with permission for establishment of a new medical college and a new course of study. No person shall establish a medical college and no medical college shall open a new or higher course of study or training for the award of any recognized medical qualification and no person shall increase the admission capacity in any Page 6 course of study or training, except with the prior permission of the Central Government obtained in accordance with the scheme provided in the Section. Admission capacity, as per Explanation 2 to Section 10A, in relation to any course of study or training in a medical college means the maximum number of students that may be fixed by the Medical Council from time to time for being admitted to such course or training.
8. In short, permission of the Central Government is required - (1) to establish a medical college, (2) to open a new course of study or training other than the recognized course and (3) to increase the admission capacity in any course of study or training. However, recognition of the Central Government is also required for the medical college and the course of study for the purpose of the medical qualification. Once a medical college is recognized under Section 11 of the Act along with medical qualification, thereafter, for increase in the admission capacity in any course of study or training that is recognized under Section 11 of the Act, only permission from Central Government as per the scheme under Section 10A of Page 7 the Act is required. But there are three Exceptions to this. Those Exceptions are provided under Section 10B:
(i) The medical qualification granted to any student of a medical college established without permission of the Central Government;
(ii) Medical qualification granted to any student in any recognized medical college where the new or higher course of study or training is conducted without the previous permission of the Central Government;
(iii) Where a medical college increased its admission capacity in any recognized course of study or training without the previous permission of the Central Government, and in such a case, the medical qualification granted to those students of such recognized medical colleges on the basis of the increased admission capacity, which is unauthorized, shall not be a recognized medical qualification for the purpose of the Act.
9. As a matter of fact, Exceptions (i) and (ii) under Section 10B of the Act, in any way, are redundant since any course or Page 8 training conducted in any medical college, if not included in the First Schedule as per Section 11 of the Act, will not be a recognized medical qualification. However, the third Exception is in respect of a student (s) admitted in excess of the admission capacity provided under Section 10A of the Act by the Central Government.
10. It is vehemently contended on behalf of the Medical Council of India and the Central Government that the admission capacity also requires recognition in addition to the permission by the Central Government. The position canvassed is that once a course is sanctioned (If it is M.B.B.S. 5-years course; if it is a P.G. course - may be 2 or 3-years course), the recognition is granted only when the course is completed.
11. Under the scheme of the Act, permission is for the admission capacity and recognition is for the course and the institution. Once a course and an institution is notified in the First Schedule as per Section 11 of the Act as a recognized course and a recognized institution, the admission capacity or its increase in any recognized course needs only the permission Page 9 of the Central Government as per the scheme under Section 10A of the Act.
12. Having analysed the legal position, we shall now deal with the factual matrix of the present case. The petitioner medical college was granted permission to establish a new medical college and it was recognized by Notification dated 17.02.2009. For the purposes of easy reference, we shall extract the relevant portion of the Notification published in the Gazette of India dated 17.02.2009, which reads as under: “NOTIFICATION S.O. In exercise of the powers conferred by sub-section (2) of the section 11 of the Indian Medical Council Act, 1956 (102 of 1956), the Central Government, after consulting the Medical Council of India, hereby makes the following further amendments in the First Schedule to the said Act, namely:- In the said First Schedule after “Bharathidasan University” and entries thereto “Bharath University, Chennai, Tamil Nadu” shall be added and against “Bharath University, Chennai, Tamil Nadu” under the heading ‘Recognised Medical Qualificatoin’ [hereinafter referred to as column (2)], and under the heading ‘abbreviation for Registration’ [hereinafter referred to as column (3), the following shall be inserted, namely:- Page 10 (2) (3)