Malabar Medical College Hospital ... vs National Medical Commission
2023 Latest Caselaw 9930 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
    MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
                     WP(C) NO. 27850 OF 2023
PETITIONER:
           MALABAR MEDICAL COLLEGE HOSPITAL & RESEARCH CENTRE,
           MODAKKALLUR, ULLIYERI, KOZHIKODE- 673323. REPRESENTED
           BY ITS CHAIRMAN

          BY ADVS.
          S.VINOD BHAT
          ANAGHA LAKSHMY RAMAN
          GREESHMA CHANDRIKA.R


RESPONDENTS:
     1     NATIONAL MEDICAL COMMISSION
           POCKET-14, SECTOR-8, DWARAKA PHASE-1
           NEW DELHI-110077
           REPRESENTED BY ITS CHAIRMAN

    2     MEDICAL ASSESSMENT AND RATING BOARD
          NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8,
          DWARAKA, PHASE-1, NEW DELHI - 110077
          REPRESENTED BY ITS PRESIDENT

          BY ADV SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF
          INDIA


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27850 OF 2023               2


                                 T.R. RAVI, J.
                 --------------------------------------------
                        W.P.(C)No.27850 of 2023
                     --------------------------------------------
              Dated this the 18th day of September, 2023

                                 JUDGMENT

The prayers in the writ petition are as follows;

(i) To call for records leading to Exts.P14, P15 and P16 and upon hearing the parties herein to issue a writ of certiorai or such other writ or other quashing Exts.P14, P15 and P16;

(ii) To issue a writ of mandamus or such other writ or order directing the respondents to issue Letter of Permission for M.D.Psychiatry and MD (Otorhinolaryngology) courses;

(iii) To issue such other writ, order or direction as this Hon'ble court may deem appropriate, in the facts and circumstances of the case.

2. The petitioner College is affiliated to Kerala

University of Health Sciences. They had sought for increase

in the number of post graduate seats in nine courses. The

Letter of Permission is granted for five courses. But with

regard to MD (Community Medicine), MD (Psychiatry), MS

(Otorhinolaryngology) and MS (General Surgery) the increase

as sought for was not granted. The petitioner had earlier

approached this Court in W.P.(C).No.14835 of 2019 when the

University had restricted the affiliation to lesser number of

seats than what was sought for. The Court after hearing the

petitioners, the University and the National Medical

Commission recorded the submissions made that the

applications are to be revived in continuation to the requests

already made and decided on the merits of the request rather

than treating it as applications for increase. However, even

after the said judgment, the seats as sought for were not

allowed till the academic year 2022-2023. The petitioner has

approached this Court in W.P.(C).No.34291/2022, in which

this Court had cataloged the entire dispute chronologically

and held that since the second round of counselling is already

over, the Court may not be able to grant relief to the

petitioner. The Court however recorded its finding in favour

of the petitioner and noted that had the petitioner

approached the Court at least before the second counselling,

relief could have been granted. The writ petition was allowed

directing the NMC to consider increase of seats, in the

disciplines as requested by the petitioner, for the academic

year 2023-2024, de hors the reasons stated in Exts.P10 to

P12 letter produced therein. The above said orders were

issued by the NMC stating that an increase of seats can be

granted after recognition of the course, which can happen

only after the first batch of students complete their course.

This Court apparently directed that the said reasons cannot

be a reason for rejecting the request. Thereafter, the NMC

issued Letter of Intent with regard to two additional seats for

MS (General Surgery), three additional seats for MD

(Community Medicine) and one additional seat for MS

(Otorhinolaryngology), Letter of Permission for MS (General

Surgery) and Letter of Permission for MD (Community

Medicine). These orders were issued in June, 2023. The

petitioner had approached the University with the Letter of

Permission issued with regard to two of the courses.

However, on 08.08.2023 the NMC issued orders withdrawing

the Letter of Permission and Letter of Intent granted with

regard to the MD (Community Medicine), MS

(Otorhinolaryngology) and MS (General Surgery). The

petitioner has challenged the above orders which are

produced as Exts. P14 to P16. The reasons stated for

withdrawal is that the 1st batch was admitted in the academic

year 2020-2021 and they are in the final year and process of

considering the case of the college for grant of recognition is

not over. It is hence stated that going by Regulations unless

the course is recognized, application for increase of seats

cannot be considered.

3. Heard Adv.Vinod Bhat.S, Adv.Anagha Lakshmy

Raman and Adv. Greeshma Chandrika. R. for the petitioner's

and Sri.Titus Mani, Standing Counsel for the respondents.

4. The 1st respondent has filed a counter affidavit

justifying orders Ext.P14 to P16. I have gone through the

earlier judgments between the parties. It is evident that this

Court had after considering the submissions made by the

Counsel for the 1st respondent and the Standing Counsel for

the University directed treatment of the applications as

continuation of the earlier application for consent of

affiliation. The justification for such a direction was that

according to the petitioner they had all the facilities for the

grant of seats as they had requested for, but the consent of

affiliation was restricted to two seats in each of the nine

subjects for which consent had been sought. So, the

contention is that they are only requesting the seats which

they had originally asked for and it is not a case of increase

of seats. In Ext.P5 judgment in W.P(C).No.14835/2019 this

Court had recorded the submissions made by the Counsel for

the 1st respondent that in cases of this nature the Health

University can firstly consider the relaxation and secondly

treat the case of the petitioner as an application revived in

continuation of the request already made and proceed to

decide according to its merits. Subsequently, this Court in

Ext.P7 judgment in W.P.(C).No.34291/2022 has also directed

consideration of the request for the academic year 2023-2024

de hors the reasons stated in Exts.P10 to P12 letters

produced therein.

5. In view of the abovesaid findings and reasons

recorded by this Court, it is not proper for the 1st respondent

to now withdraw the permission that has already been

granted for the very same reasons, which this Court had

directed not to be looked into. So, if as recorded in the

judgment Ext.P5 the applications were treated to be as a

continuation of the original request, it can never be a case

of request for increase of seats warranting the requirement

of recognition of the course.

In the above circumstances, I find that the reasons

stated in Exts.P14 to P16 are not legally sustainable. The writ

petition is hence allowed. Exts. P14 to P16 are quashed. The

petitioner may approach the University based on the Letter of

Permission and Letter of Intent granted by the 1st respondent

and the University shall do the needful.

Sd/-

T.R.RAVI JUDGE

LEK

APPENDIX OF WP(C) 27850/2023 PETITIONER EXHIBITS

Exhibit P1 COPY OF INSPECTION REPORT DATED 30-06-

2022 FOR MD (COMMUNITY MEDICINE) OF 2ND RESPONDENT (RELEVANT PAGES)

Exhibit P2 COPY OF INSPECTION REPORT DATED 30-06-

2022 FOR MD (PSYCHIATRY) OF 2ND RESPONDENT (RELEVANT PAGES)

Exhibit P3 COPY OF INSPECTION REPORT DATED 30-06-

2022 FOR MD (ENT) OF 2ND RESPONDENT (RELEVANT PAGES)

Exhibit P4 COPY OF INSPECTION REPORT DATED 30-06-

2022 FOR MS (GENERAL SURGERY) OF 2ND RESPONDENT (RELEVANT PAGES)

Exhibit P5 COPY OF JUDGMENT DATED 04-03-2020 IN WP(C) 14835/2019 OF HIGH COURT OF KERALA

Exhibit P6 COPY OF ORDER DATED 29-11-2021 IN SLP(C) 813/2021 OF SUPREME COURT OF INDIA

Exhibit P7 COPY OF JUDGMENT DATED 07-11-2022 IN WP(C) 34291/2022 OF HIGH COURT OF KERALA

Exhibit P8 COPY OF LETTER DATED 25-11-2022 OF 2ND RESPONDENT

Exhibit P9 COPY OF LETTER NO. NMC/PG/2023-

24/MALABAR(22-23)/031062 DATED 05-06-2023 OF 2ND RESPONDENT

Exhibit P10 COPY OF LETTER NO. NMC/PG/2023-

24/MALABAR(22-23)/C.M./031065 DATED 05-06-2023 OF 2ND RESPONDENT

Exhibit P11 COPY OF LETTER NO. NMC/PG/2023-

24/MALABAR(22-23)/ENT/031066 DATED 05-06-2023 OF 2ND RESPONDENT

Exhibit P12 COPY OF LETTER DATED 22-06-2023 OF 2ND RESPONDENT

Exhibit P13 COPY OF LETTER DATED 26-06-2023 OF 2ND RESPONDENT

Exhibit P14 COPY OF LETTER NO. NM/PG/2023-

24/MALABAR(22-23)/CM/046765 DATED 08-08-2023 OF 2ND RESPONDENT

Exhibit P15 COPY OF LETTER NO. NM/PG/2023-

24/MALABAR(22-23)/ENT/046774 DATED 08-08-2023 OF 2ND RESPONDENT

Exhibit P16 COPY OF LETTER NO. NM/PG/2023-

24/MALABAR(22-23)/GS/046775 DATED 08-08-2023 OF 2ND RESPONDENT

Exhibit P17 COPY OF LETTER DATED 09-08-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P18 COPY OF LETTER DATED 11-08-2023 SENT BY THE PETITIONER TO THE 1ST RESPONDENT

Exhibit P19 COPY OF LETTER DATED 14-08-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P20 COPY OF LETTER DATED 16-06-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P21 COPY OF LETTER DATED 01-08-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P22 COPY OF E-MAIL LETTER DATED 24-05-2023 OF THE 2ND RESPONDENT TO THE PETITIONER

Exhibit P23 COPY OF LETTER DATED 24-08-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P24 COPY OF LETTER DATED 31-08-2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P25 COPY OF LETTER DATED 25-08-2023 SENT BY THE PETITIONER TO KERALA UNIVERSITY OF HEALTH AND SCIENCES

RESPONDENT EXHIBITS

EXHIBIT R-2(a) TRUE COPY OF THE RELEVEVANT PORTION OF NMC ACT, 2019

EXHIBIT R-2(b) TRUE COPY OF JUDGMENT DATED 04.03.2020 IN WP(C) 14835 OF 2019 BY THE HIGH COURT OF KERALA

EXHIBIT R-2(c) TRUE COPY OF JUDGMENT DATED 26-5-2020 IN WRIT APPEAL WA 653 OF 2020 BY THE HON'BLE HIGH COURT OF KERALA

EXHIBIT R-2(d) TRUE COPY OF ORDER DATED 07-07-2020 PASSED BY THE HON'BLE SUPREME COURT IN SLP (C) NO. 7987 OF 2020.

EXHIBIT R-2(e) TRUE COPY OF JUDGEMENT DATED 16-9-2020 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC 15607 OF 2020 .

EXHIBIT R-2(f) TRUE COPY OF JUDGEMENT DATED 15.10.2020 IN WRIT APPEAL W.A NO. 1346 OF 2020 DATED 15.10.2020.

EXHIBIT R-2(g) TRUE COPY OF ORDER DATED 28-4-2021 BY THE HON'BLE SUPREME COURT IN SLP (C) NO. 3891 OF 2021.

EXHIBIT R-2(h) TRUE COPY OF ORDER DATED 24-6-2021 ISSUED BY 2ND RESPONDENT MARB.

EXHIBIT R-2(i) TRUE COPY OF ORDER DATED 29-11-2021 BY

OF 2021.

EXHIBIT R-2(j) TRUE COPY OF JUDGEMENT DATED 7-11-2022 BY THE HON'BLE HIGH COURT IN WPC 34291 OF

EXHIBIT R-2(k) (a) TRUE COPY OF LETTER OF PERMISSION NMC/PG/2023-24/MALABAR(22-23)/038667 DATED 26-06-2023

EXHIBIT R-2(k)(b) TRUE COPY OF LETTER OF INTENT NMC/PG/2023-24/MALABAR(22-23)/ENT/031066 DATED 05-06-2023

EXHIBIT R-2(k)(c) TRUE COPY OF LETTER OF PERMISSION NMC/PG/2023-24/MALABAR(22-23)/037647 DATED 22-06-2023

EXHIBIT R-2(l) (a) TRUE COPY OF WITHDRAWAL OF LETTER OF INTENT NMC/PG/2023-24/MALABAR (22-

23)/CM/046774 DATED 08-08-2023

EXHIBIT R-2(l) (b) TRUE COPY OF WITHDRAWAL OF LETTER PERMISION NMC/PG/2023-24/MALABAR (22-

23)/CM/046765 DATED 08-08-2023

EXHIBIT R-2(l) (c) TRUE COPY OF WITHDRAWAL LETTER NMC/PG/2023-24/MALABAR (22-23)/CM/046775 DATED 08-08-2023