D. Muruge San, J.@mdashThis writ appeal, filed at the instance of the Medical Council of India, seeks to challenge the order in the writ petition
holding that the Medical Council of India has no role in the matter of admission in medical colleges under the provisions of the Indian Medical
Council Act, 1956 (hereinafter referred to as ""the Act"").
2. The facts giving rise to the present appeal are as follows:
(a) The 1st respondent Shri Mookambika Institute of Medical Sciences, (hereinafter referred as ""the institute""), is owned and administered by a
Trust known as ''Padnilam Welfare Trust''. The said Trust had established the institute in question and the said institute had been recognised as a
Linguistic Minority Educational Institution. It offers M.B.B.S. Degree Course of 5-1/2 years duration from the year 2006, with annual intake
capacity of 100 students. Though the institute was entitled to admit students for all the 100 seats by itself, by virtue of an Agreement entered by the
Trust with the State Government, it had accepted to provide 50% of the seats from the total intake to be filled-in by the candidates sponsored by
the State Government through counselling with a further right to fill-up the remaining 50% of seas as management quota.
(b) During the academic year 2008-2009, the institute filled all the 50 seats under the management quota. Though the Selection Committee,
constituted by the State Government, sponsored 50 candidates informing the last datefor joining as 20.07.2008, 11 candidates did not join and the
same was intimated to the Selection Committee. Thereafter, the Selection Committee sponsored another set of candidates on 26.09.2008
informing the joining date as 29.09.2008. As there were still vacancies, a further list was sent by the Selection Committee on 29.09.2008 informing
the joining date as 30.09.2008.
(c) The contention of the institute is that out of the 50% of the seats meant for the State Government, 43 candidates only joined before the cut-off
date, namely 30.09.2008 and on that date, the institute admitted seven candidates, namely the lapsed seats of the Government quota, on its own. It
is contended by the institute that these seven candidates were admitted as against the Government seats and they were treated for all purposes as
government candidates and fee applicable to the Government sponsored candidates alone were collected.
(d) During the academic year 2009-2010 the institute had again accepted the seat sharing agreement of 50%: 50% as management seats and
Government Seats and the institute filled all the 50 seats to which it was entitled to as management seats. At that relevant point of time, the Medical
Council of India addressed a letter, dated 06.02.2009, to the Secretary to Government, Health and Family Welfare Department and the Director
of Medical Education, the 3rd and 4th respondents herein, stating that the institute had admitted only 43 candidates under the Government quota
and it admitted 57 candidates as against the management quota of 50 seats and the excess admission under the management quota, namely seven
seats for the academic year 2008-2009, should be reduced as against themanagement quota for the academic year 2009-2010 and
correspondingly it should increase allocation of Government quota seats for that academic year.
(e) In view of the above communication, the State Government in Health and Family Welfare Department, in their letter dated 06.07.2009,
addressed the Medical Council of India seeking for a clarification stating that even during the period 2006-2007 some of the seats meant for
Government quota were filled-up by the colleges themselves and therefore to clarify as to whether those seats should also be surrendered to the
Government in the subsequent years. In response to the said clarification sought for by the State Government, the Medical Council of India, by the
order dated 23.07.2009, directed that the institute in question should surrender seven seats to the Government in addition to the 50 seats for
admission under Government quota during the academic year 2009-2010. This order was questioned by the 1st respondent institute in the writ
petition and it was allowed.
(f) While allowing the writ petition, the learned Judge has also gone into the question as to the power of the Medical Council of India to direct the
institute to surrender the corresponding seats filled-up by the colleges treating those seats as the lapsed seats and held that it has no power under
the Act to issue such directions. This appeal is basically filed questioning that finding of the learned Judge.
3. It may be pointed out that the learned Judge has also held that in the light of the judgments of the Supreme Court in Mridul Dhar (Minor) and
Another Vs. Union of India (UOI) and Others, and in Al-Karim Educational Trust and another Vs. State of Bihar and others, , the surrender of
seats to the Government would be available only in case the management admitted candidates in excess of the prescribed management quota seats.
The learned Judge has also rejected the contention of the learned Counsel for the institute that after the judgment of Supreme Court in P.A.
Inamdar v. State of Maharashtra, reported in AI R 2005 SC 326, the question of surrender of the corresponding number of lapsed seats to the
Government would not arise. It is relevant to point out that as against those findings, the institute has not preferred any appeal.
4. We have heard Mr. V.P. Raman, learned Counsel appearing for the appellant, Mr. Isaac Mohanlal, learned Counsel for the institute, Mr. K.K.
Senthilvelan, learned Assistant Solicitor General, for the 2nd respondent, Mr. D. Gandhiraj, learned Government Advocate, for respondents 3 to 5
and Mr. C. Karthik, learned Counsel appearing for respondent No. 6.
5. As the appeal is at the instance of the Medical Council of India, particularly concerning about the finding of the learned Judge as its jurisdiction
to issue the order impugned in the writ petition, Mr. Isaac Mohanlal has contended that this Court can also consider the applicability of the
judgment of the Apex Court in P.A. Inamdar c a se . To decide the issue, we may also consider those submissions.
6. The Apex Court in Mridul Dhar C a se , while considering asimilar question, in paragraph 35(11) of its judgment has observed that
If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota,
the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the
previous academic year.
In Al-karim case also, the Apex Court has made a similar finding.
7. Placing reliance on the above two Judgments, Mr. V.P. Raman, learned Counsel appearing for the appellant, would submit that inasmuch as the
institute had filled 57 seats during the academic year 2008-2009, it should surrender seven seats to the Government for the subsequent academic
year. This submission did not find favour in the writ petition. According to the learned Single Judge, only in the event the management had filled-up
the candidates over and above the management quota, the proportionate number of seats should be surrendered to the Government in the
subsequent academic year. In our opinion, the said finding needs no interference. Sub-paragraph (11) of paragraph 35 of Mridul Dhar''s c a se
directs that only when a management grants admission in its m ana gement quota in exces s of its pres cribed quota , the management quota for the
next academic year shall stand reduced so as to set-off the effect of excess admission in the management quota for the previous academic year. In
other words, the reduction of seats to set-off the effect of excess admission will be necessary only in the event any excess admission is made over
and above the management quota.
8. In the instant case, for the academic year 2008-2009, the institute, though is entitled to admit 100 seats by itself, by virtue of the agreement with
the State Government, had surrendered 50 seats to be filled-in among the candidates sponsored by the Selection Committee constituted by the
State Government for the purpose. Those seats can be called as ''government quota'' and the institute is entitled to fill-up 50 seats as management
quota. There is no dispute that for the academic year 2008-2009, the institute had filled initially only 50 seats available under management quota.
The Selection Committee sponsored 50 seats as agreed upon between the institute and the Government. By some reason or the other, five
candidates did not join and two candidates, who joined, had left the college. The last date for filling-up of all the seats, as directed by the Supreme
Court, was 30.09.2008. The management had also periodically intimated the Selection Committee as to the vacancy in the Government quota.
Even after the candidates sponsored by the Selection Committee, there were seven lapsed seats on the last date for admission, namely the cut-off
date for admission fixed by the Hon''ble Apex Court. These seats were filled by the institute as the seats should not go waste. It is the specific
contention of the institute that only the fees applicable to the Government quota seats alone were collected. In that view, it cannot be called that the
institute had filled more than 50% of the seat to which it was entitled to fill as management quota. The institute had admitted only 50 candidates as
against management quota and the remaining seven seats should be considered as lapsed seats which were available to theGovernment and only
for the reason that the candidates sponsored by the Selection Committee did not join within the last date for joining, those seats were filled-up by
the institute.
9. By applying paragraph 35 (ii) of M ridul Dh ar c a s e , the excess admission must be over and above the management quota. For instance, if
the management had filled more than 50 seats under Management quota apart from filling-up the entire seats earmarked for the Government quota
which will result in the admission of more than sanctioned strength of 100 seats. In view of the specific directions of the Supreme Court, by which
the question of reduction of seats so as to set-off in the subsequent year, would be available only when there was excess of admission in the
management quota, we do not find any reason to interfere with the finding of the learned Single Judge in this regard.
10. Mr. Isaac Mohanlal, learned Counsel appearing for the institute, also submitted that after the judgment of the Supreme Court in Islamic
Academy of Education and Another Vs. State of Karnataka and Others, , the institute need not even admit the 50% of the seats as Government
quota as it has been held that it would be an interim arrangement. In our opinion, the said submission cannot be accepted for the simple reason that
it is the 1st respondent institute which had entered into an agreement with the Government for seat sharing and such arrangement is certainly
binding on the 1st respondent institute. Having entered into an agreement, the institute cannot now turn around and say that it would not entertain
the Government seats in view of the subsequent judgment of theSupreme Court. Hence the said contention cannot be entertained.
11. This takes us to the next submission as to whether the Medical Council of India has any role to play in regulating the admission in medical
colleges. In exercise of the power u/s 33(fc) of the Indian Medical Council Act, 1956, the Medical Council, with the previous sanction of the
Central Government, may make regulations to provide the criteria for identifying a student who has been granted a medical qualification referred to
in the Explanation to Sub-section (3) of Section 10B of the Act. Section 10B of the Act relates to non-recognition of medical qualifications in
certain cases. Sub-section (1) of that section states that 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 be a
recognised medical qualification for the purposes of the Act. Explanation to the said section says that ""for the purposes of this section, the criteria
for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may
be prescribed.
12. By virtue of the above power, the Medical Counsel, with the previous sanction of the Central Government, made The Medical Council of India
(Criteria for Identification of Students Admitted in Excess of Admission Capacity of Medical Colleges) Regulations, 1997. Regulation 3(b) relates
to ''Admission Capacity'' as referred to in Explanation 2 of Section 10A of the Act relating to permission forestablishment of new medical college,
new course of study, etc. Regulation 3(c) relates to the competent authority to implement the Regulations meaning thereby the Central Government
or State Government or medical college to allot students for admission to various medical colleges in a State or Union Territory. Regulation 4
relates to sanctioned intake capacity in medical colleges. By that regulation, the Council shall every year, prior to the start of
undergraduate/postgraduate academic medical course, intimate the medical colleges and State/Union Territory Governments, the sanctioned intake
capacity of the students for undergraduate/postgraduate courses in medical colleges. In terms of Regulations 5 and 7, the medical colleges shall
furnish year-wise list of students admitted to the council within three months from the closure of admission. Regulation 8 relates to matters relating
to excess admission to be decided by the Council. That regulation contemplates that all matters relating to excess admission of students shall be
decided by the Council.
13. Going by the above provisions, the Medical Council would certainly have the power to regulate the admissions of students in the medical
colleges within the sanctioned intake capacity and if the admission is made over and above the sanctioned strength, it would certainly have the
power to take appropriate action against the concerned. In our opinion, these regulations would be available to the Medical Council only in the
event the admission is made over and above the sanctioned strength. For example, if an institute had admitted more than 100 candidates, namely
the sanctioned strength, it would certainly refuse to recognise theadmissions made over and above the sanctioned intake. The power to The power
to take such action is not available if the seats are filled within the sanctioned strength.
14. The question of 50% of seats to be considered as Government quota is only by virtue of the agreement between the institute and the State
Government. That seat sharing is entirely between the institute and the Government and for that purpose the Medical Council has no role to say
that as to whether such seat sharing could be made or not and if such seat sharing could be made what is the percentage of seat sharing, etc. The
power that will be available to the Medical Council is not to find out as to whether the institute admits students according to the seat sharing
agreement entered with the State Government but only to the extent as to whether the institute has admitted more than the sanctioned strength. To
this extent, the Medical Council has power and not otherwise.
15. With the above modification in the finding of the learned Single Judge, the writ appeal is disposed of. No order as to costs. Connected
