1Dr.Mukesh Yadav, M.D.,
MBA (HCA), LL.B., PGDHOQM, PGDHR
Abstract
Medical
education falls under concurrent list of Constitution of India and is the subject
matter of both Union and State Governments and Medical Council of India is the
sole supervising body of medical education and maintaining its standard.
Problem of recognition of medical degrees / diplomas is prevalent in almost all
the States of India and in most of the medical specialties. Holders of
unrecognized degree / diploma may face problem of employment / promotion, etc.
Thus, leading to filing of litigations in the court, some of which are decided
and others are still pending in the Indian Courts.
It
is surprising to note that private medical colleges who are charging hefty
amount as fees for medical degrees, but students are getting unrecognized
degrees and land up in problems either in getting jobs or innocent victims of
medical negligence.
Very
few research papers [2, 3] have been published in this area due to complexity
of issue and lack of knowledge and awareness among medical fraternity in this
sphere. Many students /institutions had approached high courts and Hon’ble
Supreme Court of India to redress their problem. Recent one in series of such
cases decided on 6th Aug 2015 by the Division Bench comprising of
Justice, Kurian Joseph and Justice Anil R. Dave.
The
SC interpreted the meaning and scope of terms: Approval, Recognition and Admission
Capacity, etc. This research paper reviewed judgment dated 6th Aug
2015 similar issues faced by the medical students and medical
institutions/universities to create awareness on the issue of recognition.
Key Words: Recognition,
Approval, Renewal, Admission Capacity, Medical College, Medical Institution,
University, Medical Council of India, Central Government
Introduction:
Is there no need for getting recognition of
Degree/Diploma from MCI for increase in Admission Capacity? SC replied in
negative i.e. No, there is no need for recognition. Provided If the Medical
College/University and Course already recognized by the MCI and there is issue
of only recognition of increased admission capacity, permitted by the Central
Government as per the provisions of the Indian Medical Council Act, Rules and
Regulations.
In a recent case [2] decided by the Hon’ble
SC on 6th Aug 2015 will have far reaching consequences in the area
of Quality of Medical Education in India.
MCI
Circular dated 19th Aug 2015 mentions that for the sake of
understanding - A Medical College which is recognized for intake capacity of
100 MBBS students, thereafter applied for and was granted permission under Section
10A of the IMC Act, 1956 for increase in intake capacity from 100 to 150 MBBS students.
Corresponding Author:
1Professor & Head
Rama
Medical College, Hapur, U.P.
Mob.No.8527063514
Email:
drmukesh65@yahoo.co.in
DOR:
00.00.2015; DOA: 00.00.2015
DOI:
It
further mentions that can such a Medical College further apply for increase of
seats from 150 to 200 or 250 MBBS admissions without their present increased
intake i.e. 150 MBBS students, having been granted recognition under Section
11(2) of the IMC Act, 1956.
Very
few research papers [3, 4, 5] have been published in this area due to
complexity of issue and lack of knowledge and awareness among medical
fraternity in this sphere.
Case of Balaji
Medical College, Chennai:
Division Bench of the SC have analysed the
legal position in a recent case decided on 6th Aug 2015. [1]
Factual matrix of the
present case:
The petitioner medical college was granted
permission to establish a new medical college and it was recognized by Notification dated 17.02.2009. For the
purposes of easy reference, Bench extracted the relevant portion of the
Notification published in the Gazette of India dated 17.02.2009, which reads as
under:
“NOTIFICATION
S.O.In exercise of the powers conferred
by sub-section (2) of the
section 11 of the Indian Medical
Council Act, 1956
(102 of 1956),
the Central Government, after consulting the Medical Council of
India, hereby makes the following
further amendments in the First
Schedule to the
said Act, namely:
In the said First
Schedule after “Bharathidasan University”
and entries thereto “Bharath University, Chennai, Tamil Nadu”
shall be added and against “Bharath University,
Chennai, Tamil Nadu”
under the heading ‘Recognised Medical Qualification’
[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: [See Table No.1]
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 was not in dispute also.
Case before Madras
High Court:
The petitioner- Sree Balaji Medical College &
Hospital, Chennai, Tamil Nadu submitted an application
dated 25.09.2013 for permission to increase the admission capacity from 150
to 250 for the Academic 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. 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 appeal filed by the
Medical Council of India was dismissed by Judgment dated 09.06.2014 in Writ
Appeal No.728 of 2014.
Case before the SC:
The Medical Council of India approached the
Supreme Court leading to Order dated 18.07.2014 in Civil Appeal No. 6564 of
2014. The operative portion of the Order reads as follows:
“… Heard the learned counsel appearing for
the parties.
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 instead of
2014-15. The Medical Council of India is directed to complete the inspection of
the applicant-College before 31st October, 2014. …”
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, the SC 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.
It was 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 Appeal was
disposed of on 17.11.2014. The operative portion of the order reads as follows:
“… In pursuance of the query raised by us, it
has been submitted by Mr.P.S. Patwalia, learned Additional Solicitor General,
appearing on behalf of appellant, that as directed by this Court, inspection
has already been completed before 15th November, 2014. The Authorities shall
take appropriate decision on the 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 accordingly.”
SC important Observations:
Division Bench observed that 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 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”.
The decision dated 14.03.2014 was one taken
by the Committee not to increase the strength in any medical college unless the
existing strength is recognized by the Central Government.
Bench further observed that as we have
discussed herein above, the Act does not provide for 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 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.
Bench noted that it was 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 capacity without recognition of the
existing capacity, as increased from time to time.
Bench clarified that in the above circumstances,
we do not find any justification whatsoever in denying relief to the
petitioner.
Objections of the MCI
regarding Maintainability of petition:
The Medical Council of India raised an
objection regarding maintainability of the petition 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. Bench attention was invited to Paragraph-27 of the Judgment, which
reads as follows:
“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 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.”
Objection Rejected by
the SC:
Rejecting the objection Division Bench of the
SC observed that we do not find any substance in the objection. In the background
of the facts narrated by Bench, only the SC could have entertained the
grievance of the petitioner. Moreover, there were no disputed facts at all in
the present case. All the material facts stated in the writ petition were
admitted.
The dispute is only on question of law. The
present petition is only in continuation of the earlier proceedings before this
Court.
In the above circumstances, the Writ Petition
was allowed. The impugned orders were 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 within a period of two weeks from the date of
judgment i.e. 6th Aug 2015.
Issue of MCI
provisions:
Section 11 (1) & (2), 10A, 10B of the
Indian Medical Council Act, 1956 has been interpreted by the Hon’ble SC as
follows:
Questions for
Considerations before the SC:
Following two questions come before the
Division Bench of the SC comprising Justice
1.
Whether recognition
is also required for the admission capacity which is increased from time to
time?
or
2.
Whether permission of
the Central Government alone is required for such an increase in the admission
capacity in the recognized course?
Important
Observations of the SC:
The Indian Medical Council Act, 1956
specifically provides for recognition of medical qualification granted by
universities or medical institutions either in India or abroad. Once a medical
qualification granted by a medical institution in India is recognized by the
Central Government, whether
recognition is also required for the admission capacity which is increased from
time to time or whether permission of the Central Government alone is required
for such an increase in the admission capacity in the recognized course, is the
question of law arising for consideration in this case.
MCI Provisions on the
issue:
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 by
Universities of medical institutions of India: (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.
(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 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 such medical qualification
declaring that it
shall be a
recognised medical qualification
only when granted after a specified date.”
Section 10A of the Act deals with the
permission for 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 NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.
1.
Notwithstanding anything contained in this Act or any other law for the time
being in force:
1.
No
person shall establish a medical college; (or)
2.
No
medical college shall-
i.
open
a new or
higher course of
study or training
(including a postgraduate course
of study or training) which would enable
a student of such course or training to qualify himself
for the award of any recognized medical qualification; or
ii.
increase
its admission capacity in any course of study or training (including a
postgraduate course of study or training), except with the previous permission
of the Central Government obtained in accordance with the provisions of this section.
Explanation 1: For the purposes of
this section, "person"
includes any University or a trust but does not include the Central Government.
Explanation 2: For the purposes of
this section "admission
capacity" in relation to any course of study or training (including
postgraduate course of study or training) in a medical college, means
the maximum number of students
that may be fixed by the Council from
time to time
for being admitted to such course or training.”
Section 10B of the
Act deals with the non-recognition of the medical qualifications in certain
cases: The provision reads as follows:
“10B.
Non-recognition of medical qualifications in certain cases:
(1) Where any medical college is established
except with the previous permission of the Central Government in accordance
with the provisions of section10A, no medical qualification granted to any
student of such medical college shall a recognised medical qualification for
the purposes of this Act.
(2) Where any medical college opens a new or
higher course of study or training (including a postgraduate course of study or
training) except with the previous permission of the Central Government in
accordance with the provisions of section 10A, no medical qualification granted
to any student of such medical college on the basis of such study or training
shall be a recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its
admission capacity in any course of study or training except with the previous permission of the
Central Government in accordance with the
provisions of section 10A, no medical qualification granted to any
student of such medical college on the
basis of the increase in its admission
capacity shall be
a recognized medical
qualification for the purposes of this Act.
Explanation: 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.” (Emphasis supplied)
Observations of the
SC:
Division Bench observed that it is clear from
the scheme of the Act, as per the relevant provisions extracted above, that
recognition and permission are two different concepts. Recognition is of a
medical qualification, ordinarily known as a course conducted by an institution
which is also to be recognized.
Section 11(2) of the Act provides that the
medical qualifications and the institutions thus recognized are to be notified
in the First Schedule. The First Schedule is titled as “Recognition of Medical Qualifications Granted by the Universities or
Medical Institutions in India”.
SC further observed that Section 10A of the
Act deals with permission for establishment of a new medical college and a new
course of study. No person shall
establish a medical college and no medical college shall open a new or higher
course of study or training for the
award of any recognized medical qualification
and no person shall increase the admission capacity in any course of
study or training, except with
the prior permission of the Central
Government obtained in accordance with the scheme provided in the
Section. Admission capacity, as per Explanation 2 to Section 10A, in
relation to any course of study or training in a medical college means the
maximum number of students that may be fixed by the Medical Council from time
to time for being admitted to such course or training.
In short, permission of the Central
Government is required - (1) to
establish a medical college, (2) to open a new course of study or training
other than the recognized course and (3) to increase the admission capacity in
any course of study or training.
However, recognition of the Central Government is also required for the
medical college and the course of study for the purpose of the medical
qualification. Once a medical college is recognized under Section 11 of the Act
along with medical qualification, thereafter, for increase in the admission
capacity in any course of study or
training that is recognized under Section 11 of the Act, only permission from Central Government as per the
scheme under Section 10A of the Act is
required. But there are three Exceptions to this. Those Exceptions are provided
under Section 10B:
·
The
medical qualification granted to any student of a medical college established
without permission of the Central Government;
·
Medical
qualification granted to any student in any recognized medical college where
the new or higher course of study or training is conducted without the previous
permission of the Central Government;
·
Where
a medical college increased its admission capacity in any recognized course of
study or training without the previous permission of the Central Government,
and in such a case, the medical qualification granted to those students of such
recognized medical colleges on the basis of the increased admission capacity,
which is unauthorized, shall not be a recognized medical qualification for the
purpose of the Act.
As a matter of fact, Exceptions (i) and (ii)
under Section 10B of the Act, in any way, are redundant since any course or
training conducted in any medical college, if not included in the
First Schedule as per Section 11 of the Act, will not be a recognized medical
qualification. However, the third Exception is in respect of a student (s)
admitted in excess of the admission capacity provided under Section 10A of the
Act by the Central Government.
Stand of MCI/Central Government:
It is vehemently contended on behalf of the
Medical Council of India and the Central Government that the admission capacity
also requires recognition in addition to the permission by the Central
Government. The position canvassed is that once a course is sanctioned (If it
is M.B.B.S. 5- years course; if it is a P.G. course - may be 2 or 3-years
course), the recognition is granted only when the course is completed.
MCI has issued its circular dated 19th
Aug 2015 [4] for inviting applications for increase of medical seats as per the
mandate of the SC Judgment dated 6th Aug 2015 [1].
Summary and Conclusions:
Division Bench of the SC clarified that under
the scheme of the Act, permission is for the admission capacity and recognition
is for the course and the institution. Once a course and an institution is notified in the First
Schedule as per Section 11 of the Act as a recognized course and a recognized
institution, the admission capacity or its increase in any recognized course
needs only the permission of the
Central Government as per the scheme under Section 10A of the Act.
·
This
judgment of 6th Aug 2015 will have far reaching consequences on the
issue of Quality of Medical Education in India.
·
Judgment
will benefit existing medical colleges which are already recognized by the MCI/
Courses recognized by the MCI, but there is issue of increased in admission
capacity after permission from the Central Government.
·
There
are still many grey areas which needs clarification by the SC itself.
References
1.
Kurian Joseph, J., Anil R.
Dave, J. Sree
Balaji Medical College and Hospital and Anr. vs. Union of India and Anr., Writ Petition (Civil) No. 306 of 2015, Date of Judgment: 06.08.2015. [Online] [Accessed:
2015 Aug 7] Available form: URL:http://judis.nic.in/supremecourt/imgst.aspx?filename=42832
2.
MCI Circular No.MCI-37(1)(Gen.)/2015-Med./127873-128429,
Dated: 19.08.2015. [Online] [Accessed: 2015 Aug 22]. Available from: URL:http://www.mciindia.org/circulars/Circular-increse-of-seats-19.08.2015.pdf
3.
Dr. Mukesh Yadav. Problem
of Unrecognized Medical Degree / Diploma: Who is at fault? JIAFM, 2007 29 (3): 1-6. [Online]
[Accessed: 2015 Aug 15]. Available from:URL:http://medind.nic.in/jal/t07/i3/jalt07i3p1.pdf
5.
Balaji Medical College to admit 250 students. The
Hindu, Aug 21, 2015. [Online][Accessed: 2015 Aug 22]. Available from: URL:http://www.thehindu.com/news/cities/chennai/balaji-medical-college-to-admit-250-students/article7564059.ece
Table No.1
IMC Act, 1956,
Schedule I
|
||
Sr. No.
|
Column (2)
|
Column (3)
|
1
|
Bachelor
of Medicine and Bachelor of Surgery
|
M.B.B.S.
|
Notes: (This shall be a
recognized medical qualification when granted by Bharath University, Chennai,
Tamil Nadu after February 2008 in respect of students trained at Sree Balaji
Medical College & Hospital, Chennai, Tamil Nadu.)”
|
||
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