SREE BALAJI MEDICAL COLLEGE AND HOSPITAL AND ANOTHERversusUNION OF INDIA AND ANOTHER

                        [2015] 7 S.C.R. 566


A      SREE BALAJI MEDICALCOLLEGEAND HOSPITAL
                         AND ANOTHER
                                 v.
                UNION OF INDIAANDANOTHER
B
               (Writ Petition (civil) No. 306 of 2015)

                        AUGUST 6, 2015

          [ANIL R. DAVE AND KURIAN JOSEPH, JJ.]
c
       Education/Educational Institutions:

       Medical College - Admission capacity - Increase in
  - Whether needs recognition under Medical Council Act,
   1956 - Held: Under the scheme of the Act, recognition is
0
  for the course and institution and for admission capacity
  only permission u!s. 1OA is required - The Act does not
  provide for recognition of the admission capacity in a
  recognized college for a recognized course - The
E Regulations also do not contemplate such requirement -
  Therefore, in the present case, denial of increase in
  admission capacity on the ground that existing capacity
  was not recognized, is without any legal basis - Medical
  Council Act, 1956 - ss. 11 and 10A - The Opening of a
F New or Higher Course or Study or Training (Including a
  Post-Graduate Course of Study or Training) and Increase
  of Admission Capacity in any Course or Study or Training
  (Including a Post-Graduate Course of Study or Training)
  Regulations; 2000.
G
       Constitution of India, 1950 - Att. 32 - Writ petition
  challenging order of Medical Council denying increase in
  admission capacity of medical college - Maintainability of

H                              566
 SREE BALAJI MEDICALCOLLEGEAND HOSPITAL v. 567
                UNION OF INDIA

- Held: In view of the fact that in previous litigation A
between the parties, the Supreme Court had directed the
Medical Council to take decision on the basis of the
inspection report whereby the petitioner-College was found
to satisfy all the requirements for the increase claimed,
only Supreme Court could have entertained the petitioner B
- Moreover, the case does not involve disputed questions
of fact - Hence, the petition was maintainable.

    Allowing the writ petition, the Court
                                                          c
     HELD: 1.1 Recognition and permission are two
different concepts. 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 o
Schedule as per Section 11 of the Medical Council Act
as a recognized course and a recognized institution,
the admission capacity or its increase in any recognized
course needs only the permission of the Central
Government as per the scheme under Section 10A o.f E
the Act. But there are three Exceptions to this, a~
provided under Section 108 of the Act. The third
Exception is in respect of student (s) admitted in excess
of the admission capacity provided under Section 10A
of the Act by the Central Government. [Paras 5, 8, 9 and F
11) [572-F; 573-G; 575-A-B]

    1.2 In the present case, in previous litigation for
increase of admission capacity from 150 to 250, this
Court directed to consider the application for increase G
after completing the inspection of the petitioner-institute.
Further, on the b~sis of the inspection report that the
institute satisfied all the requirements for increase of
admission capacity from 150 to 250, directed the Medical
Council to take appropriate decision on the basis of the H
568         SUPREME COURT REPORTS               [2015] 7 S.C.R.


A Report. Despite all these developments, the Medical
  Council of India, in its Meeting held on 20.11.2014,
  decided that since the petitioner-College was not
  recognized for 150 admissions, it is not eligible for
  further increase from 150 to 250 as per the earlier
B decision dated 14.03.2014. (Paras 14, 15 and 16] (576-
  F; 578-C]
      1.3 The Act does not provide for recognition of the
  admission capacity in a recognized medical college for
C a recognized course. The regulations, "The Opening of
  a New or Higher Course of Study or Training (including
  Post-graduate Course of Study or Training) and
  Increase of Admission Capacity in any Course or Study
  or Training (including a Post-graduate Course of Study
o or Training) Regulations, 2000", also do not
  contemplate such a requirement. Therefore, there is no
  legal basis for the decision dated 14.03.2014, whereby
  decision was taken by the Committee not to increase
  the strength in any medical college unless the existing
E strength is recognized by the Central Government.
  Therefore, there is no justification whatsoever in
  denying relief to the petitioner. [Paras 17 and 19] (578-
  D-G; 579-A]
F         1.4 The respondents are directed to process and
      consider afresh the application for the increase of seats
      from 150 to 250 for the M.B.B.S. course for the Academic
      Session 2015-2016. [Para 21) [579-G, HJ
      2. It is not correct to say that the petition u/Art. 32
G of the Constitution is not maintainable. In the
  background of the facts of the case, only this Court
  could have entertained the grievance of the petitioner.
  Moreover, there are no disputed facts at all in the
  present case. All the material facts stated in the writ
H petition are admitted. The dispute is only on question
  SREE BALAJI MEDICAL COLLEGE AND HOSPITAL v.                       569
                 UNION OF INDIA

of law. The present petition is only in continuation of the          A
earlier proceedings before this Court. [Para 20] [579-E-
F]

    CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
306 of 2015                                                          B

     Under Article 32 of the Constitution of India.

    Pinky Anand, ASG, C.A. Sundaram, L. Nageshwar Rao,
Vikas Singh, Rohini Musa, Venkatesh Mahadevan, Kumaresh
Babu, Balaji Srinivasan, Srishti Govil, Mayank Kshirsagar, C
Vaishnavi Subrahmanyam, N. Senthil Kumar, V. Ramesh Zafar
lnayat, Abhishek Gupta, Rekha Pandey, B.V. Niren, Ajay
Sharma, Rohitash Nagar, (For D.S. Mahra), Gaurav Sharma,
Prateek Bhatia for the appearing parties.
                                                           D
     The Judgment of the Court was delivered by

     KURIAN, J.: 1. The Indian Medical Council Act, 1956
(hereinafter referred to as "the Act" specifically provides for
recognition of medical qualification granted by universities         E
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           F
of the Central Government alone is required for such an
increase in the admission capacity in the recognized
course, is the question of law arising for consideration in
this case.
                                                                     G
    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:

     "11. Recognition of medical qualifications granted              H
570      SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A        by Universities of medical institutions of lndia.-
         (1) The medical qualifications granted by any University
         or medical institution in India which are included in the
         First Schedule shall be recognized medical
         qualifications for the purposes of this Act.
B
         (2) Any University or medical institution in India which
         grants a medical qualification not included in the First
         Schedule may apply to the Central Government to have
         such qualification recognized, and the Central
C        Government, after consulting the Council, may, by
         notification in the Official Gazette, amend the First
         Schedule so as to include such qualification therein, and
         any such notification may also direct that an entry shall
         be made in the last column of the First Schedule against
D        such medical qualification declaring that it shall be a
         recognised medical qualification only when granted
         after a specified date."

       3. Section 1OA of the Act deals with the permission for
E establishment of new medical college, new course of study
  and admission capacity. To the extent relevant, Section 10A(1)
  of the Act reads as follows:

         "10A. PERMISSION FOR ESTABLISHMENT OF
F        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:-
G        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
H
  SREE BALAJI MEDICALCOLLEGEAND HOSPITAL v. 571
            UNION OF IMDIA [KURIAN, J.]

      (including a postgraduate course of study or training)       A
      which would enable a student of such course or traiaing
      to qualify himself for the award of any recognised
      medical qualification; or

  (ii). increase its admission capacity in any course of study     s
        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         c
     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.
                                                                   D
     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 be fixed by the Council from      E
     time to time for being admitted to such course or
     training."

     4. Section 1OB of the Act deals with the non-recognition
of the medical qualifications in certain cases. The provision      F
reads as follows:

     "108. Non-recognition of medical qualifications in
     certain cases.- ( 1) Where any medical college is
     established except with the previous permission of the G
     Central Government in accordance with the provisions
     of section 1OA, no medical qualification
                                   ' ,.........
                                                granted to any
     student of such medical college shall a recognised
     medical qualification for the purposes of this Act.
                                                                   H
572         SUPREME COURT REPORTS                   [2015] 7 S.C.R.

A          (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 1OA, no medical
B          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.

C          (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 1DA, no
           medical qualification granted to any student of such
D          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
E          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."
                                               (Emphasis supplied)
F
      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
G 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
H
          SREE BALAJI MEDICALCOLLEGEAND HOSPITAL v.                573
                    UNION OF INDIA [KURIAN, J.]

        "RECOGNITION OF MEDICAL QUALIFICATIONS GRANTED A
        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 B
        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 course of study or training, except with the c
        prior permission of the Central Government obtained in
        accordance with the scheme provided in the Section.
    '
        Admission capacity, as per Explanation 2 to Section 1OA,
/
        in relation to any course of study or training in a medical
        college means the,maximum number of students that may D
        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 E
        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 F
        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 G
        per the scheme under Section 10A of the Act is required.
        But there are three Exceptions to this. Those Exceptions
        are provided under Section 1OB:

            (i) The medical qualification granted to any student of a H
574         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


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
B 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
c     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
o     of the Act.

        9. As a matter of fact, Exceptions (i) and (ii) under
   Section 1OB of the Act, in any way, are redundant since any
   course or training conducted in any medical college, if not
 E 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 1OA
   of the Act by the Central Government.
 F
         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
·G 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
H
   SREE BALAJI MEDICALCOLLEGEAND HOSPITAL v. 575
            UNION OF INDIA [KURIAN, J.]

 admission capacity and recognition is for the course and the A
 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 of the Central Government as per the scheme B
 under Section 1OA 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 C
  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:                         D

                      "NOTIFICATION

        S.O. In exercise of the powers conferred by sub-
      section (2) of the section 11 of the Indian Medical E
      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:-

       ln the said First Schedule after "Bharathidasan F
     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' G
     [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:-
                                                            H
576       SUPREME COURT REPORTS                 [2015) 7 S.C.R.


A              (2)                                             (3)



         Bachelor of Medicine and                   M.B.B.S.
         Bachelor of Surgery
B
                                    (This shall be a recognized
                                    medical qualification when
                                    granted by Bharath
                                    University, Chennai, Tamil
c                                   Nadu after February 2008
                                    in respect of students
                                    trained at Sree Balaji
                                    Medical       College     &
                                    Hospital, Chennai, Tamil .
D                                                               /
                                    Nadu.)"                    ·

       13. As per Order dated 15.07.2013, the petitioner was
  given permission to increase the seats for M.B.B.S. from 100
  to 150 for the Academic Session 2013-2015 and that is not
E in dispute also (Annexure-A4 in l.A.-2 of 2015).

        14. The petitioner-medical college submitted an
  application dated 25.09.2013 for permission to increase the
  admission capacity from 150 to 250 for the Academic
F Session 2014-2015. In that regard, they have also filed a writ
  petition before the Madras High Court leading to Judgment
  dated 29.04.2014 (Annexure-P1). The Central Government
  was directed to consider the application of the petitioner and
  pass orders on merits on or before 31.05.2014. The writ
G appeal filed by the Medical Council of India was dismissed
  by Judgment dated 09.06.2014 in Writ Appeal No. 728 of
  2014. The Medical Council of India approached this Court
  leading to Order da)ed 18.07.2014 in Civil Appeal No. 6564
H of 2014. The, operative portion of the Order reads as follows:     /
 SREE BALAJI MEDICALCOLLEGEAND HOSPITAL v.                       577
          UNION OF INDIA[KURIAN, J.]

     "... Heard the learned counsel appearing for the parties.    A

     Looking at the facts of the case, in our opinion it would
     be just and proper to treat the application filed by the
     applicant to the Medical Council of India for getting
     additional seats for the academic year 2015-2016             B
     instead of 2014-15.

     The Medical Council of India is directed to complete the
     inspection of the applicant-College before 31st October/·
     2014 .... "                                                  c
      15. The Medical Council of India filed I.A. No. 3 of 2014
for modification of order dated 18.07.2014 contending that
only if the intake of 150 (increased strength of 50) is
recognized by the' Central Government, the request for further
increase can be considered. On 17.10.2014, this Court D
directed the Medical Council of India to complete the
inspection in respect of the application for the intake of 250
students by 15.11.2014. Accordingly, the inspection was
conducted and the report is produced as Annexure-P8. It is E
fairly admitted by the Medical Council of India and the
Central Government that the petitioner-medical college
satisfies all the requirements for increase of admission
capacity from 150 to 250, as per the report, I. A. No. 3 of
2014 for modification of the Order dated 18.07.2014 in Civil F
Appeal was disposed of on 17.11.2014. The operative
portion of the order reads as foJlows:
                               /



     " ... In pursuance of the query raised by us, it has been
     submifted by Mr. P.S. Patwalia, learned Additional G
    ,,.Solicitor General, appearing on behalf of appellant, that
     as directed by this Court, inspection has already been
     completed before)5th November, 2014.

     The Authorities shall take aP~~opriate decision on th~       H
578         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A          basis of the report of inspection and other relevant facts.
           No other direction is given to the Authorities.

           Interlocutory Application No. 3 for clarification/
           modification of Court's order is disposed of
B          accordingly."

           16. Despite all these developments, surprisingly, if not
      shockingly, the Medical Council of India, it its Meeting held
      on 20.11.2014, decided that" ... since Sree Balaji Medical
c     College and Hospital, Chennai is not recognized for 150
      admissions, it is not eligible for further increase from 150
      to 250 as per· the earlier decision dated 14.
      03.2014"(Annexure-A9 of l.A.2 of 2015).

D       17. The decision dated 14.03.2014 is one taken by the
   Committee not to increase the strength in any medical
   college unless the existing strength is recognized by the
   Central Government (Annexure-A8 of l.A.-2 of 2015). As we
   have discussed herein above, the Act does not provide for
E recognition of the admission capacity in a recognized
   medical college for a recognized course. The regulations,
   ''The Opening of a New or Higher Course of Study or
  Training (including Post-graduate Course of Study or
  Training) and Increase of Admission Capacity in any
F Course or Study or Training (including a Post-graduate
  Course of Study or Training) Regulations, 2000", also does
  not contemplate such a requirement. Therefore, there is no
  legal basis for the decision dated 14.03.2014 and it is only
  to be ignored.
G
        18. It is also seen from the pleadings that in case of
  two medical colleges (1) S.P. Medical College, Bikaner,
  Rajasthan and (2) Maulana Azad Medical College, New
  Delhi, permission was granted for increasing admission
H capacity without recognition of the existing capacity, as
  SREE BALAJI MEDICAL COLLEGE AND HOSPITAL v. 579
            UNION OF INDIA [KURIAN, J.]

increased from time to time.                                    A

      19. In the above circumstances, we do not find any
justification whatsoever in denying relief to the petitioner.
                    '
Learned Counsel appearing for the Medical Council of India
raised an objection regarding maintainability of the petition B
placing reliance on the recent Judgment of this Court in
Writ Petition (Civil) No. 441 of 2015 and connected cases
decided on 23.07 .2015. Our attention was invited to
 Paragraph-27 of the Judgment, which reads as follows:
                                                                c
     "27. Under Article 32 of the Constitution, this Court is
     not supposed to go into finding of facts ,recorded by
     the authorities and to come to a different conclusion.
     Moreover, having regard to the law settled by
     Constitution Bench of this Court in number of              o
     decisions, in our considered opinion, the rights so
     claimed by the petitioners are not fundamental rights;
     hence the same cannot be agitated directly before
     this Court under Article 32 of the Constitution."
                                                                E
    20. We do not find any substance in the objection. In
the background of the facts narrated by us, only this Court
could have entertained the grievance of the petitioner.
Moreover, there are no disputed facts at all~n the present
case. All the material facts stated in the writ petition are    F
admitted. The dispute is only on question of law. The
present petition is only in continuation of the earlier
proceedings before this Court.

     21. In the above circumstances, the Writ Petition is G
allowed. The impugned orders are quashed. The
respondents are directed to process and consider afresh
the application for the increase of seats from 150 to 250
for the M.B.B.S. course for the Academic Session 2015-
2016 and pass orders thereon positively wit~ir:i a period of H
580         SUPREME COURT REPORTS                [2015] 7S.C.R.

A two weeks from today.

          22. There shall be no order as to costs.
      Kalpana K Tripathy                        Writ Petition allowed.