w w w . L a w y e r S e r v i c e s . i n



The Chairman, Quilon Medical Trust, Kollam v/s The Kerala University of Health And Sciences, Thrissur & Others


Company & Directors' Information:- G. K. E. MEDICAL PRIVATE LIMITED [Active] CIN = U85100WB2009PTC139049

Company & Directors' Information:- A R MEDICAL PRIVATE LIMITED [Active] CIN = U24232AS2003PTC007179

Company & Directors' Information:- C J MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U33110TG2010PTC068126

Company & Directors' Information:- S P S MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U51397BR2007PTC013129

Company & Directors' Information:- P. MEDICAL PRIVATE LIMITED [Strike Off] CIN = U85195TG1987PTC008112

Company & Directors' Information:- AMP SCIENCES PRIVATE LIMITED [Strike Off] CIN = U93000PN2014PTC153230

Company & Directors' Information:- P L MEDICAL INDIA PRIVATE LIMITED [Strike Off] CIN = U33130DL2011PTC225068

Company & Directors' Information:- R H D MEDICAL PRIVATE LIMITED [Active] CIN = U85110DL2021PTC377464

Company & Directors' Information:- KERALA TRUST PRIVATE LIMITED [Dissolved] CIN = U74999KL1953PTC000617

    WP(C). No. 27548 of 2020 (P)

    Decided On, 27 January 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

    For the Petitioner: Kurian George Kannanthanam, Sr. Advocate, Tony George Kannanthanam, Advocate. For the Respondents: R1-R2, P. Sreekumar, R3, Titus Mani Vettom, SC.



Judgment Text

1. The petitioner is the Chairman of Quilon Medical Trust, which is the educational agency of Travancore Medical College, a private self-financing medical college, conducting MBBS course on the strength of recognition originally granted by the Medical Council of India and presently by the 3rd respondent National Medical Commission, and the affiliation originally granted by the University of Kerala and presently by the 1st respondent Kerala University of Health Sciences. The annual intake originally approved by the Medical Council of India in MBBS course was 100 seats, for the academic year 2009-10. The annual intake was increased/enhanced from 100 to 150, by the Medical Council of India, for the academic year 2020-21. Based on the approval granted by the Medical Council of India, the 1st respondent University granted consent of affiliation for enhancement of intake in MBBS course from 100 to 150, for the academic year 2020-21.2. The 1st respondent University issued Ext.P1 notification dated 04.11.2020 inviting applications for starting of/enhancement of seats in MBBS course for the academic year 2021-22. As per the said notification, all institutions should satisfy the norms fixed by the concerned Apex Council, if any,/Government of Kerala/Kerala University of Health and Sciences. The last date of submission of online applications with the requisite documents and fee was 09.11.2020. The mandatory documents/certificates to be submitted along with the applications are mentioned in Appendix A. The applications without the documents and requisite fee will be summarily rejected. The application will be valid for three years. Grant of provisional affiliation will be as per the norms fixed by the University/Apex Council concerned/Government of Kerala, from time to time.3. Pursuant to Ext.P1 notification, the petitioner submitted Ext.P2 application dated 09.11.2020 for enhancement of seats in MBBS course from 150 to 200. By Ext.P3 order dated 13.11.2020, the 1st respondent University appointed an Inspection Commission for considering the application seeking provisional affiliation for enhancement of the seats. On 27.11.2020, the University issued Ext.P4 communication dated 27.11.2020, whereby the petitioner was informed that the application for enhancement of seats in MBBS course from 150 to 200, for the academic year 2021-22, cannot be considered, since as per the Regulations of the 3rd respondent National Medical Commission the medical college shall qualify to apply for enhancement of annual intake in MBBS course from 150 to 200, only after recognising the present intake (100 to 150).4. The petitioner would contend that neither in Ext.P1 notification nor in the Appendix to Ext.P1, there is a condition that for enhancement of seats, the previous batch has full recognition. The only reason stated in Ext.P4 communication is that, as per the regulations of the National Medical Commission, the medical college shall qualify to apply for increase of the number of admission in MBBS course only after recognising the present intake. On 27.11.2020, the 3rd respondent National Medical Commission issued Ext.P5 notice extending the last date for submission of applications for establishing new medical colleges and increase in MBBS seats, for the academic year 2021-22, from 30.11.2020 upto 15.12.2020. The petitioner submitted Ext.P6 representation dated 28.11.2020 before the 2nd respondent Vice Chancellor, seeking reconsideration of Ext.P2 application for consent of affiliation for enhancement of seats in MBBS course from 150 to 200, for the academic year 2021-22.5. The petitioner has approached this Court in this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 27.11.2020 issued by the 1st respondent University; and a writ of mandamus commanding the 1st respondent University to grant consent of affiliation to the petitioner to apply for enhancement of intake in MBBS course in the academic year 2021-22 itself. The further relief sought for is a writ of mandamus commanding the 3rd respondent National Medical Commission not to insist upon the consent of affiliation of the 1st respondent University for considering the petitioner’s application for enhancement of intake in MBBS course, for the academic year 2021-22.6. On 09.12.2020, when this writ petition came up for admission, the learned Standing Counsel for the 1st respondent University and also the learned Standing Counsel for the 3rd respondent National Medical Commission sought time to get instructions.7. On 15.12.2020, a statement has been filed on behalf of respondents 1 and 2, by the learned Standing Counsel for the 1st respondent University, opposing the reliefs sought for in this writ petition. In the said statement, it is contended that the petitioner’s medical college is presently having an admission capacity of 150. In terms of the Medical Council of India Regulations (at present National Medical Commission), the medical colleges have to obtain recognition from the National Medical Commission. The same is granted on the completion of course of the first batch. In the case of the petitioner's college, recognition was granted only for an intake of 100 seats, for which original letter of permission was issued. The intake was enhanced to 150 seats, by granting additional seats of 50, which is yet to be recognised. In terms of the scheme for enhancement of seats and additional courses, a college would be eligible to apply for enhancement only when the sanctioned intake stands recognised by the National Medical Commission, in terms of sub-section (2) of Section 11 of the Indian Medical Council Act. In Part II of the Opening of New or Higher Courses of Study or Training (including Post Graduate Course of Study or Training) and Increase of Admission Capacity in any Courses of Study or Training (including Post Graduate of Study or Training) Regulations, 2000, under Clause 3 dealing with qualifying criteria, it is provided that a medical college/medical institution shall be eligible to make an application to increase the admission capacity in MBBS/PG Diploma/PG Degree/Higher Special Courses, once the concerned qualification against the sanctioned intake has been granted recognition under Sub-section (2) of Section 11 of the Act and included in the First Schedule of the Act. Because of the said reason, the application for affiliation submitted by the petitioner stands rejected. The University grants consent of affiliation after verifying the eligibility of the applicant and the same is to be issued in the format prescribed. In terms of the format, the University agrees in principle to affiliate the institution. Considering the said aspect, consent of affiliation could not be issued for an ineligible applicant.8. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for the Kerala University of Health and Sciences, for respondents 1 and 2, and also the learned Standing Counsel for the National Medical Commission.9. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 order dated 27.11.2020 of the 1st respondent University, whereby the petitioner was informed that Ext.P2 application for consent of affiliation for enhancement of seats in MBBS course in the petitioner’s college from 150 to 200 cannot be considered, for the academic year 2021-22, since such a request can be considered only after recognising the present intake, i.e., the enhancement of intake from 100 to 150 granted during the academic year 2020-21.10. By the National Medical Commission Act, 2019, the Indian Medical Council Act, 1959 was repealed and the said Act came into force on 25.09.2020. Section 16 of the Act deals with c onstitution of Autonomous Boards. As per sub-section (1) of Section 16, the Central Government shall, by notification, constitute the following Autonomous Boards, under the overall supervision of the Commission, to perform the functions assigned to such Boards under the Act, namely, (a) the Undergraduate Medical Education Board; (b) the Postgraduate Medical Education Board; (c) the Medical Assessment and Rating Board; and (d) the Ethics and Medical Registration Board. As per sub-section (2), each Board referred to in sub-section (1) shall be an autonomous body which shall carry out its functions under the Act subject to the regulations made by the Commission.11. Section 24 of the Act deals with powers and functions of Undergraduate Medical Education Board. As per sub-section (1) of Section 24, the Undergraduate Medical Education Board shall perform the functions enumerated in clauses (a) to (j) thereof. Section 24 of the Act reads thus;“24. Powers and functions of Undergraduate Medical Education Board.- (1) The Undergraduate Medical Education Board shall perform the following functions, namely:-(a) determine standards of medical education at undergraduate level and oversee all aspects relating thereto;(b) develop competency based dynamic curriculum at undergraduate level in accordance with the regulations made under this Act;(c) develop competency based dynamic curriculum for addressing the needs of primary health services, community medicine and family medicine to ensure healthcare in such areas, in accordance with the provisions of the regulations made under this Act;(d) frame guidelines for setting up of medical institutions for imparting undergraduate courses, having regard to the needs of the country and the global norms, in accordance with the provisions of the regulations made under this Act;(e) determine the minimum requirements and standards for conducting courses and examinations for undergraduates in medical institutions, having regard to the needs of creativity at local levels, including designing of some courses by individual institutions, in accordance with the provisions of the regulations made under this Act;(f) determine standards and norms for infrastructure, faculty and quality of education in medical institutions providing undergraduate medical education in accordance with the provisions of the regulations made under this Act;(g) facilitate development and training of faculty members teaching undergraduate courses;(h) facilitate research and the international student and faculty exchange programmes relating to undergraduate medical education;(i) specify norms for compulsory annual disclosures, electronically or otherwise, by medical institutions, in respect of their functions that has a bearing on the interest of all stakeholders including students, faculty, the Commission and the Central Government;(j) grant recognition to a medical qualification at the undergraduate level.”12. As per clause (d) of sub-section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall frame guidelines for setting up of medical institutions for imparting undergraduate courses, having regard to the needs of the country and the global norms, in accordance with the provisions of the regulations made under this Act. As per clause (e) of sub-section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall determine the minimum requirements and standards for conducting courses and examinations for undergraduates in medical institutions, having regard to the needs of creativity at local levels, including designing of some courses by individual institutions, in accordance with the provisions of the regulations made under the Act. As per clause (f) of sub-section (1) of Section 24 of the Act, the Undergraduate Medical Education Board shall determine standards and norms for infrastructure, faculty and quality of education in medical institutions providing undergraduate medical education in accordance with the provisions of the regulations made under the Act.13. Section 26 of the Act deals with p owers and functions of Medical Assessment and Rating Board. As per sub-section (1) of Section 26, the Medical Assessment and Rating Board shall perform the functions enumerated in clauses (a) to (f) thereof. Section 26 of the Act reads thus;“26. Powers and functions of Medical Assessment and Rating Board.- (1) The Medical Assessment and Rating Board shall perform the following functions, namely:-(a) determine the procedure for assessing and rating the medical institutions for their compliance with the standards laid down by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in accordance with the regulations made under this Act;(b) grant permission for establishment of a new medical institution, or to start any postgraduate course or to increase number of seats, in accordance with the provisions of Section 28;(c) carry out inspections of medical institutions for assessing and rating such institutions in accordance with the regulations made under this Act: Provided that the Medical Assessment and Rating Board may, if it deems necessary, hire and authorise any other third party agency or persons for carrying out inspections of medical institutions for assessing and rating such institutions: Provided further that where inspection of medical institutions is carried out by such third party agency or persons authorised by the Medical Assessment and Rating Board, it shall be obligatory on such institutions to provide access to such agency or person;(d) conduct, or where it deems necessary, empanel independent rating agencies to conduct, assess and rate all medical institutions, within such period of their opening, and every year thereafter, at such time, and in such manner, as may be specified by the regulations;(e) make available on its website or in public domain the assessment and ratings of medical institutions at regular intervals in accordance with the regulations made under this Act;(f) take such measures, including issuing warning, imposition of monetary penalty, reducing intake or stoppage of admissions and recommending to the Commission for withdrawal of recognition, against a medical institution for failure to maintain the minimum essential standards specified by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in accordance with the regulations made under this Act.(2) The Medical Assessment and Rating Board may, in the discharge of its functions, make such recommendations to, and seek such directions from, the Commission, as it deems necessary.”14. As per clause (a) of sub-section (1) of Section 26 of the Act, the Medical Assessment and Rating Board shall determine the procedure for assessing and rating the medical institutions for their compliance with the standards laid down by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in accordance with the regulations made under the Act. As per clause (b) of sub-section (1) of Section 26 of the Act, the Medical Assessment and Rating Board shall grant permission for establishment of a new medical institution, or to start any postgraduate course or to increase number of seats, in accordance with the provisions of Section 28.15. Section 28 of the Act deals with permission for establishment of new medical college. As per sub-section (1) of Section 28, no person shall establish a new medical college or start any postgraduate course or increase number of seats without obtaining prior permission of the Medical Assessment and Rating Board. As per sub-section (2) of Section 28, for the purposes of obtaining permission under sub-section (1), a person may submit a scheme to the Medical Assessment and Rating Board in such form, containing such particulars, accompanied by such fee, and in such manner, as may be specified by the regulations. As per sub-section (3) of Section 28, the Medical Assessment and Rating Board shall, having due regard to the criteria specified in Section 29, consider the scheme received under sub-section (2) and either approve or disapprove such scheme within a period of six months from the date of such receipt. As per the proviso to sub-section (3), before disapproving such scheme, an opportunity to rectify the defects, if any, shall be given to the person concerned. As per sub-section (4) of Section 28, where a scheme is approved under sub-section (3), such approval shall be the permission under sub-section (1) to establish new medical college. As per sub-section (7) of Section 28, the Medical Assessment and Rating Board may conduct evaluation and assessment of any medical institution at any time, either directly or through any other expert having integrity and experience of medical profession and without any prior notice and assess and evaluate the performance, standards and benchmarks of such medical institution.16. Section 29 of the Act deals with criteria for approving or disapproving scheme. As per Section 29, while approving or disapproving a scheme under Section 28, the Medical Assessment and Rating Board, or the Commission, as the case may be, shall take into consideration the following criteria, namely, (a) adequacy of financial resources; (b) whether adequate academic faculty and other necessary facilities have been provided to ensure proper functioning of medical college or would be provided within the timelimit specified in the scheme; (c) whether adequate hospital facilities have been provided or would be provided within the timelimit specified in the scheme; and (d) such other factors as may be prescribed. As per the proviso to Section 29, subject to the previous approval of the Central Government, the criteria may be relaxed for the medical colleges which are set up in such areas as may be specified by the regulations.17. Section 35 of the Act deals with recognition of medical qualifications granted by Universities or medical institutions in India. As per sub-section (1) of Section 35, the medical qualification granted by any University or medical institution in India shall be listed and maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in such manner as may be specified by the regulations and such medical qualification shall be a recognised medical qualification for the purposes of the Act. As per sub-section (2) of Section 35, any University or medical institution in India which grants an undergraduate or postgraduate or super-speciality medical qualification not included in the list maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, may apply to that Board for granting recognition to such qualification. As per subsection (3) of Section 35, the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, shall examine the application for grant of recognition to a medical qualification within a period of six months in such manner as may be specified by the regulations. As per sub-section (4) of Section 35, where the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, decides to grant recognition to a medical qualification, it shall include such medical qualification in the list maintained by it and also specify the date of effect of such recognition. As per subsection (8) of Section 35, all medical qualifications which have been recognised before the date of commencement of this Act and are included in the First Schedule and Part I of the Third Schedule to the Indian Medical Council Act, 1956, shall also be recognised medical qualifications for the purposes of this Act, and shall be listed and maintained by the Undergraduate Medical Education Board or the Postgraduate Medical Education Board, as the case may be, in such manner as may be specified by the regulations.18. Section 49 of the Act deals with c ompletion of courses of studies in medical institutions. As per sub-section (1) of Section 49, notwithstanding anything contained in this Act, any student who was studying for a degree, diploma or certificate in any medical institution immediately before the commencement of this Act shall continue to so study and complete his course for such degree, diploma or certificate, and such institution shall continue to provide instructions and examination for such student in accordance with the syllabus and studies as existed before such commencement, and such student shall be deemed to have completed his course of study under this Act and shall be awarded degree, diploma or certificate under this Act. As per sub-section (2) of Section 49, notwithstanding anything contained in this Act, where recognition granted to a medical institution has lapsed, whether by efflux of time or by its voluntary surrender or for any other reason whatsoever, such medical institution shall continue to maintain and provide the minimum standards required to be provided under this Act till such time as all candidates who are admitted in that medical institution complete their study.19. Section 56 of the Act deals with power to make rules. As per sub-section (1) of Section 56, the Central Government may, by notification, make rules to carry out the purposes of this Act. As per sub-section (2) of Section 56, in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in clauses (a) to (q) thereof. As per clause (l) of sub-section (2) of Section 56, the rules made by the Central Government shall provide for the other factors under clause (d) of Section 29 (i.e., criteria for approving or disapproving scheme).20. Section 57 of the Act deals with power to make regulations. As per sub-section (1) of Section 57, the Commission may, after previous publication, by notification, make regulations consistent with the Act and the rules made thereunder to carry out the provisions of this Act. As per sub-section (2) of Section 57, in particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the matters enumerated in clauses (a) to (zt) thereof. The regulations made may provide for:- as per clause (o) - the curriculum at undergraduate level under clause (b) of sub-section (1) of Section 24; as per clause (p) - the curriculum for primary medicine, community medicine and family medicine under clause (c) of subsection (1) of Section 24; as per clause (q) - the manner of imparting undergraduate courses by medical institutions under clause (d) of sub-section (1) of Section 24; as per clause (r) - the minimum requirements and standards for conducting courses and examinations for undergraduates in medical institutions under clause (e) of sub-section (1) of Section 24; and as per clause (s) - the standards and norms for infrastructure, faculty and quality of education at undergraduate level in medical institutions under clause (f) of sub-section (1) of Section 24.21. Section 60 of the Act deals with repeal and saving. As per sub-section (1) of Section 60, with effect from such date as the Central Government may appoint in this behalf, the Indian Medical Council Act, 1956 shall stand repealed and the Medical Council of India constituted under sub-section (1) of Section 3 of the said Act shall stand dissolved. As per sub-section (2) of Section 60, notwithstanding the repeal of the Act referred to in sub-section (1), it shall not affect, (a) the previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or (c) any penalty incurred in respect of any contravention under the Act so repealed; or (d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Act had not been repealed. As per sub-section (3) of Section 60, on the dissolution of the Medical Council of India, the person appointed as the Chairman of the Medical Council of India and every other person appointed as the Member and any officer and other employee of that Council and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of term of their office or of any contract of service. As per sub-section (4) of Section 60, notwithstanding the repeal of the aforesaid enactment, any order made, any licence to practice issued, any registration made, any permission to start new medical college or to start higher course of studies or for increase in the admission capacity granted, any recognition of medical qualifications granted, under the Indian Medical Council Act, 1956, which are in force as on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued or granted under the provisions of this Act or the rules or regulations made thereunder.22. In pursuance of the provisions of sub-section (1) of the Section 60 of the National Medical Commission Act, 2019, the Central Government vide Notification S.O. 3263(E), dated 24.09.2020 published in the Gazette of India, dated 24.09.2020 repealed the Indian Medical Council Act, 1956 with effect from 25.09.2020. By the said notification, the Board of Governors appointed under Section 3A of the Indian Medical Council Act, 1956 in supersession of the Medical Council of India constituted under sub-section (1) of Section 3 of the said Act stands dissolved.23. Section 61 of the Act deals with transitory provisions. As per sub-section (1) of Section 61, the Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission. As per sub-section (2) of Section 61, notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder. As per the proviso to sub-section (2) of Section 61, anything done or any action taken as regards the educational standards and requirements under the enactment under repeal and the rules and regulations made thereunder shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or by any action taken under this Act.24. In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India with the previous sanction of the Central Government, made the Minimum requirements for 50 MBBS Admissions annually Regulations, 1999, which was published in the Gazette of India dated 24.09.1999. As per Para.2, the objective of the Regulations is to prescribe for a medical college and medical institution approved for 50 admissions of MBBS students annually, the minimum requirements of accommodation in the college and its associated teaching hospitals, staff (teaching and technical both) and equipment in the college departments and hospitals. As per Para.3, every medical college and medical institution for 50 MBBS admissions annually shall have the departments enumerated in clauses (1) to (23). The Medical Council of India made similar regulations prescribing the minimum requirements for 100, 150, 200 and 250 MBBS admissions annually, namely, Minimum Requirements for 100 MBBS Admissions annually Regulations, 1999, Minimum Requirements for 150 MBBS Admissions annually Regulations, 1999, Minimum Requirements for 200 MBBS Admissions annually Regulations, 1999 and Minimum Requirements for 250 MBBS Admissions annually Regulations, 1999.25. In exercise of the powers conferred by section 57 of the National Medical Commission Act, 2019 the National Medical Commission made the Minimum Requirements for Annual MBBS Admissions Regulations, 2020, which was published in the Gazette of India dated 29.10.2020. As per clause (i) of Para.2, the Regulations shall be applicable for medical colleges being established from the academic session 2021-22 onwards. As per clause (ii) of Para.2, the relevant minimum standard requirements for the medical college for 50/100/150/200/250 regulations and the requirements to be fulfilled by the applicant colleges for obtaining Letter of Intent and Letter of Permission for establishment of the new medical colleges and yearly renewals under Section 10A of the Indian Medical Council Act, 1956 read with sub-section (2) of Section 61 of the National Medical Commission Act, 2019 shall be the governing regulations for medical colleges established prior to last date of grant of letter of permission for establishing new medical college/renewal of permission/increase of intake capacity for the academic session 2020-21. As per Para.4, the objective of the Regulations is to prescribe for a medical college and medical institution approved for admissions of MBBS students annually, the minimum requirements of accommodation in the college and its associated teaching hospitals, staff (teaching and technical) and equipment in the college departments and hospitals. As per Para.5, every medical college and medical institution approved for MBBS admissions annually shall have the departments enumerated in clauses (i) to (xxiv).26. In exercise of the powers conferred by Section 10A read with section 33 of the Indian Medical Council Act, 1956, the Medical Council of India, with the previous sanction of the Central Government made the Establishment of Medical College Regulations, 1999. As per Clause 3 of the Regulations, which deals with the establishment of a medical college, no person shall establish a medical college except after obtaining prior permission from the Central Government by submitting a Scheme annexed with the said Regulations. Clause 1 of the Scheme deals with eligibility criteria and Clause 2 deals with qualifying criteria. As per Clause 2 of the Scheme, the eligible persons shall qualify to apply for permission to establish a medical college if the conditions enumerated in sub-clauses (1) to (8) are fulfilled. As per sub-clause (2) of Clause 2 of the Scheme, the medical college or medical institution shall be housed in a unitary campus of not less than 20 acres of land except in mega cities (Mumbai, Kolkata, New Delhi and Chennai) and ‘A’ class cities (Ahmedabad, Hyderabad, Pune, Bangalore and Kanpur). However, this may be relaxed in a place especially in Urban areas where the population is more than 25 lakhs, other than the nine cities mentioned in the clause, hilly areas, notified tribal areas, North Eastern States, Hill States and Union Territories of Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Havel and Lakshadweep, where the land shall not be in more than two pieces and the distance between the two pieces shall not be more than 10 kms. The hospital, college building including library and hostels for the students, interns, PGs/ Residents and Nurses shall be in one piece of land which shall not be less than 10 Acres. Other facilities may be housed in the other piece of land, proper landscaping should be done. As per sub-clause (3) of Clause 2, the applicant has to obtain essentiality certificate in Form 2 regarding no-objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the Council regulations, from the concerned State Government/Union Territory Administration. As per subclause (4) of Clause 2, the applicant has to obtain consent of affiliation in Form 3 for the proposed medical college from a University. As per sub-clause (5) of Clause 2 the applicant should own and manage a hospital with the required bed strength and necessary infrastructural facilities capable of being developed into teaching institution in the campus of the proposed medical college.27. After enactment of the National Medical Commission Act, 2019, the National Medical Commission notified the Establishment of Medical College (Amendments) Regulations, 2020, vide the notification published in the Gazette of India dated 29.10.2020, in exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956 and sub-section (2) of Section 61 of the National Medical Commission Act, 2019 to further amend the Establishment of Medical College Regulations, 1999. As per the said notification, in Clause 2 of the Scheme under the heading ‘qualifying criteria’, sub-clause (2A) is added after subclause (2); in Clause 2 of the Scheme under the heading ‘eligibility criteria’, sub-clause (5A) is added after sub-clause (5); and in clause 8 of the Scheme under the heading ‘grant of permission’, sub-clause (3)(1A) is added after sub-clause (3)(1). The amended provisions are applicable for medical colleges being established from the academic session 2021-22.28. In exercise of the powers conferred by Section 10A read with Section 33 of the Indian Medical Council Act, 1956, in supersession of the Establishment of new Medical Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993, in so far as it relates to application for permission of the Central Government for starting new or higher courses (including PG degree/diploma and higher specialities) in a medical college/institution and application for permission of the Central Government to increase the admission capacity in MBBS/Higher courses (including Diploma/Degree/ Higher specialities) in the existing medical colleges/institutions, the Medical Council of India, with the previous sanction of the Central Government, made the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000, which came into force on 07.10.2000.29. As per Clause 3 of the regulations, which deals with the permission for establishment of a new or higher course of study, etc., no medical college shall, (a) open a new or higher course of study or training (including a post graduate 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 (b) increase admission capacity in any course of study or training (including a post-graduate course of study or training); except after obtaining the previous permission of the Central Government by submitting Scheme annexed to the Regulations.30. Part II of the Regulations deals with Scheme for Permission of the Central Government to Increase the Admission Capacity in any Course of Study or Training (Including Postgraduate Course of Study or Training) in the Existing Medical Colleges/ Institutions. As per Clause 3 of the Scheme, which deals with qualifying criteria, the medical college/institution shall qualify to apply for increasing the number of admission in MBBS/PG Diploma/ Degree/Higher Specialty Course in the existing medical college/ institution if the conditions enumerated in sub-clauses (1) to (7) are fulfilled.31. As per sub-clause (1) of Clause 3, substituted by the notification published in the Gazette of India dated 02.05.

Please Login To View The Full Judgment!

2016, for any increase in the annual intake capacity for admission to MBBS course, only those medical college/institution are eligible to apply whose medical degree is a recognised medical qualification under sub-section (2) of Section 11 of the Indian Medical Council Act, 1956 for that particular intake capacity/increased intake capacity for which Letter of Permission was granted by the Central Government; however, the medical college/institute which is not yet recognised under sub-section (2) of Section 11 of the Indian Medical Council Act for the award of MBBS degree may apply for increase of intake in Postgraduate courses in pre-clinical and paraclinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine & Community Medicine at the time of 4th renewal, i.e. along with the admission of 5th batch for the MBBS course. As per sub-clause (1) of Clause 3, substituted further by the notification published in the Gazette of India dated 08.06.2018, a Medical College/Medical Institution shall be entitled to make an application to increase the admission capacity for MBBS/PG Diploma/PG Degree/Higher Specialty Courses, once the concerned qualification against the sanctioned intake has been granted recognition under sub-section (2) of Section 11 of the Act and included in the First Schedule of the Act.32. In view of the transitory provisions under sub-section (2) of Section 61 of the National Medical Commission Act, 2019, the Establishment of Medical College Regulations, 1999, as amended by the Establishment of Medical College (Amendments) Regulations, 2020, and also the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000 issued under the provisions of the Indian Medical Council Act, 1956 shall continue to be in force and operate till new regulations are made by the National Medical Commission under the provisions of the National Medical Commission Act, 2019. The contention to the contra raised by the petitioner is untenable.33. Part II of the Regulations of 2000 deals with Scheme for Permission of the Central Government to Increase the Admission Capacity in any Course of Study or Training (Including Postgraduate Course of Study or Training) in the Existing Medical Colleges/ Institutions. As per sub-clause (1) of Clause 3 of the said Scheme, substituted by the notification published in the Gazette of India dated 08.06.2018, a Medical College/Medical Institution shall be entitled to make an application to increase the admission capacity for MBBS/PG Diploma/PG Degree/Higher Specialty Courses, once the concerned qualification against the sanctioned intake has been granted recognition under sub-section (2) of Section 11 of the Indian Medical Council Act, 1956, read with the provisions under the National Medical Commission Act. In the case of the petitioner’s medical college, the annual intake was enhanced from 100 to 150 by the Medical Council of India, during the academic year 2020-21. In view of the prohibition contained in sub-clause (1) of Clause 3 of the Scheme in Part II of the Regulations of 2000, the petitioner’s medical college will be entitled to make an application to increase the admission capacity in MBBS course, once the concerned qualification against the sanctioned intake of 150 has been granted recognition under sub-section (2) of Section 11 of the Indian Medical Council Act, read with the provisions under the National Medical Commission Act, 2019.34. Therefore, the 1st respondent University cannot be found fault with in rejecting the request made by the petitioner for consent of affiliation for enhancement of seats in MBBS course from 150 to 200 seats, for the academic year 2021-22.In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs.
O R