Dr.S.K. Rasania and Dr.Vindu Amithabh discharged from CBI Charge sheet

In an Order on Charge, CBI Court Delhi discharged Dr.S.K. Rasania and Dr.Vindu Amithabh in a case pending for framing of charges. An article in this regard was published on the Quality of Medical Education Group after the Hon’ble SC judgment dated 6^th Sept 2013. [1]

The case related to abuse of power by various authorities of Ministry of Health and Family Welfare, Union of India, including then Union Helath Minister and Deputy Secretary and Chairman of Medical College in Barielly, who is presently also member of the Medical Council of India along with two doctors, Dr.S.K. Rasania and Dr.Vindu Amithabh who was asked to inspect the college became innocent victim of criminal conspiracy.

Facts of the Case:

Brief facts of the case as per chargesheet are that Rohilkhand Medical College Bareilly run by Rohilkhand Educational Charitable Trust Bareilly since 2006 under the Chairmanship of accused Dr.Keshav Kumar Aggarwal. [Para 3] [2]

The first approval of the Central Govt U/s 10(A) of the IMC Act for establishment of the medical college was accorded initially for a period of one year in July 2006 with annual intake of 100 students of MBBS for academic section 2006-2007. [Para 3]

Based on the CBI Court order of Charge dated 7^th Oct 2015 [R-2] case details are as follows:

Transfer of Case from Lucknow to Delhi:

The investigation in the present case was conducted by Lucknow Branch of CBI and after conclusion of investigation the chargesheet was also filed before Ld. Spl. Judge, CBI Lucknow, however during the pendency of the proceedings before the Ld. Spl. Judge CBI Lucknow, a transfer petition was filed by accused KVS Rao in the Hon'ble Supreme Court of India. [Para 1]

The Hon'ble Supreme Court of India vide order dated 10.03.14 transferred this case to this court, to be heard with the connected criminal case titled as “CBI vs. Dr. Ambumani Ramadoss and Ors.” [Para 1]

CBI court commented that at the outset it was found that investigation conducted in the case titled “CBI vs. Dr. Ambumani Ramadoss & Ors” was far more exhaustive and comprehensive than in the present case. [Para 1]

Issue of Charge sheet:

Present charge sheet was filed against alleged five accused:

1.     Dr.Keshav Kumar Aggarwal, Chairman Rohilkhand Education Trust,

2.     K.V.S Rao, Dy. Secretary, Ministry of Health and Family Welfare

3.     Ambumani Ramadoss former Union Minister for Health and Family Welfare

4.     Dr. Vindu Amitabh, Sr. Specialist and Head of Department, (Nephrology) VM Medical College and Hospital, New Delhi

5.     Dr. Sanjiv Kumar Rasania, Professor of Community Medicine VM Medical College and Hospital, New Delhi

It was for commission of offences U/s 120B IPC r/w section 420/468/471 IPC and section 13(2) r/w Section 13(1)(d) of PC Act 1988. [Para 2]

Defense of the Doctors (MCI Inspectors/Assessors):

Ld. Counsel for Dr. Vindu Amitabh and Dr. S.K. Rasania submited:

·         That the present accused has nothing to do with the Ministry nor associated with the college, and cannot be said to be part of any conspiracy.

·         That accused persons inspected the college on the sudden direction by the Medical superintendent without any proper communication of procedure for inspection.

·         That with their knowledge whatever possible they have done and acted upon the information/ documents supplied by the college.

·         That there is no evidence on record that the accused acted in conspiracy with the other accused persons.

·         That the accused persons are senior doctors and suffering in the present case due to false implication by the CBI. Ld. Counsel also filed the written submissions. [Para 29]

Alleged Allegations:

It was alleged that:

·         They didn’t find shortage of faculty

·         They did not ask the faculty members whether they are full timers or part timers

·         That they claimed to have personally inspected the wards however, during investigation on physical verification of 14 patients on random basis 9 of them were found fake or non existent

·         The declaration forms accepted by the inspected team members containing the documents like ration cards etc of some of the faculty members which were also found to be fake, and the form 16 were also found not issued by the college to them.

Issue of Shortage of Faculty & Method of Calculation

According to chargesheet both the accused in the inspection report pointed out the shortage of only two (less than 2% teaching faculty) out of required 114. IO in chargesheet made the calculation of the shortage on its own and found the shortage of faculty 17, however on the directions of this court, CBI filed a fresh calculation through an expert which also do not in fact dispute the calculation arrived by these accused persons. [Para 72]

Issue of Part time or full time faculty, Declaration Form and Fake Documents

The other allegations against these accused were that they did not ask the faculty members whether they were full timers or part timers namely, Dr.Harbir Singh Sodhi, Dr.Anil Madan, Dr. Virender Kumar Sinha, Dr.Zamaluddin and Dr. Shiv Nath Banarjee.

It was further alleged against these accused that they claimed to have personally inspected the wards however, during investigation on physical verification of 14 patients on random basis 9 of them were found fake or nonexistent. Furthermore, the declaration forms accepted by the inspected team members containing the documents like ration cards etc of some of the faculty members which were also found to be fake, and the form 16 were also found not issued by the college to them. [Para 73]

CBI Court Observations:

Court noted that admittedly, the present accused do not found to have any connection with the Ministry nor with accused KVS Rao or Dr. Ambumani Ramadoss. They went for inspection on immediate call by medical Superintendent in the afternoon of 24.09.08. It was submitted that in the evening they went to Bareilly in Car and reached around 03:30 am in the morning and thereafter, came back after inspection on 25.09.08. The present doctors went without any instructions and proper guidelines. No documents were provided to them. Nor any instructions were given to them in which manner they have to conduct the inspection. The declaration forms containing the information were provided by the college. There is nothing in the statement of the five doctors as mentioned above that during inspection they told these inspecting doctors that they are not full timer. The declaration form submitted show them full timers. In normal course doctors has to see the formal documents alongwith the attendance of the persons. There is no means available to the doctors to verify whether in fact the persons presented to them are full timer or visiting professors. [Para 74]

Observations in the defense of MCI Inspectors:

Court added that furthermore, it cannot be expected to the doctors who are inspecting in such a short notice that too without any proper documents and instructions to conduct inspections, to verify the fakeness or genuineness of the patients found in the college. The doctors were not even apprised by the ministry before leaving the college about the previous inspection conducted and what kind of deficiencies noted in those inspections. [Para 75]

Even, if it is found that doctors unable to verify the five doctors mentioned above are part time or full time or the patients are fake or genuine no culpability can be attached to the present doctors in present facts and circumstances. Because circumstances do not suggest that the present doctors are in any manner colluded with ministry or with the college. [Para 76]

Case Law Referred:

CBI Court observed that in this scenario regard, it is pertinent to refer to case titled “CBI vs. K. Naryana Rao, 2012 [5]”, wherein apex court while quashing criminal proceedings in paragraph 24 observed as under:

“24. the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself any not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available.

Accordingly, the evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence.” [Para 76]

Court added that admittedly, the present accused Dr. Vindu Amitabh and Dr. S.K. Rasania have no connection with the Ministry or the college prior or after the inspection. They had not inspected the college at the behest of the accused persons and were directed to inspect on the directions of PW15 Jagdish Prasad Medical Superintendent that too in very haste manner. Furthermore, there is nothing on record as discussed that the present accused were in the knowledge that the declaration forms are of part time faculty members or the patients lying on the beds are fake patients. [Para 77]

In normal course, it is not possible for a person to verify the genuinity of the persons when they were produced by the college authorities and depicted as genuine. Even if it is found that some illegal acts have been committed, it must be clear that they were to be so committed in pursuance to any agreement made between the accused persons who were parties to the alleged agreement. Furthermore, the inferences from such proved circumstances regarding the guilt may be drawn only when these are incapable of any other reasonable explanation. [Para 77]

Court concluded that in present set of facts, accused Dr.Vindu Amitabh and Dr. S.K. Rasania cannot be held to be in any manner had agreement to commit any illegal act with the college authorities or with the officials of the Ministry. [Para 77]

Court further added that their act of non verifying the fake patients or the part timers faculty members is not in any way suggest of any agreement for doing any illegal act, at best could be considered as negligent act. [Para 77]

Thus, from the facts and circumstances, as discussed the present accused Dr.Vindu Amitabh and Dr. S.K. Rasania cannot be held to have acted in conspiracy with other accused persons, and not found to have abused their position. [Para 78]

While discharging both the alleged accused court pointed out that dishonest intention is found explicitly absent. Thus, no case for commission of offences U/s 120B IPC r/w Sections 420/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act is made out against the present accused doctors, hence accused Dr.Vindu Amitabh and Dr. S.K. Rasania stands discharged in the present case. [Para 78]

Summary and Conclusions:

In view of the above discussion accused Dr. Ambumani Ramadoss, KVS Rao and K.K. Aggarwal are prima facie found to have committed offence U/s 120B IPC r/w Section 13(2) & 13(1)(d) of Prevention of Corruption Act and Section 420/468/471 IPC.

Court added that furthermore, accused Ambumani Ramadoss and KVS Rao are also found to have prima facie committed substantive offences U/s 13(2) r/w Section 13(1)(d) Prevention of Corruption Act, 1988.

Besides, this accused Dr. K.K. Aggarwal also found to have committed prima facie substantive offences U/s 420/468/471 IPC. Accordingly, charges framed against these accused persons. [Para 79]

However, accused Dr. Vindu Amitabh and Dr. Sanjiv Kumar Rasania stands discharged from the present case. [Para 80]

Court further clarified that nothing stated hereinabove shall tantamount to an expression of the merits of the case. [Para 81]

Following questions needs debate and answers:

·         Why there is need for Consultants for appointment of Faculty?

·         What is the Role of MCI/University in faculty Selection?

·         What is the Role of State Government/UGC?

This article will help the potential MCI Accessory/Inspectors not to become innocent victim and part of criminal conspiracy of higher authorities and management of private medical colleges. It is very difficult to realize the sufferings and humiliations suffered by two doctors, Dr.S.K. Rasania and Dr. V. Amitabh till they discharged from the CBI charge sheet. Author apologies for Article published on this group based on Paragraph 26 of the Hon’ble SC dated 6^th Sept 2015 [1] which caused immense sufferings to both doctors and requesting them to join the fight for improving the Quality of Medical Education in India based on their own experience and guide the potential MCI Assessors/Inspectors not to become innocent victim.

References:

1.     K.S. Radhakrishnan, J., A.K. Sikri, J. Rohilkhand Medical College & Hospital, Bareilly vs. Medical Council of India & Another, Writ Petition (Civil) No.585 of 2013, Date of Judgment: September 06, 2013, http://judis.nic.in/supremecourt/imgs1.aspx?filename=40735

2.     CBI vs. K.K. Aggarwal & Ors., CC No. 03/14, RC No.006/2010/A0014SPE/ACB/Lucknow. Date of Order: 7^th Oct 2015. [Online][Accessed: 2015 Oct 20]. Available from:URL:http://judis.nic.in/Daily_Orders/DDC/list_new2.asp?DO_Pdf_Name=po41207102015.pdf

3.     CBI vs. Ambumani Ramadoss & Ors., CC No. 03/12, RC No.AC22010A0003/ACUII,SPE/CBI/ND

4.     The Prevention of Corruption Act, 1988.

5.     The Indian Penal Code Act, 1860.

6.     CBI vs. K. Naryana Rao, 2012 (9) SCC page512

Casual follow up treatment after Cataract Surgery, Medical Negligence NCDRC

Dr.Mukesh Yadav, M.D. MBS (HCA), PGDHOQM, PGDHR
Mob.No.8527063514
Email: drmukesh65@yahoo.co.in
Abstract:
NCDRC in a recent case of post cataract follow up which was casual on the part of attending doctor and hospital. It was found that elements of medical negligence were present here. NCDRC approved total compensation of Rs.169000/- awarded by the SCDRC, Rajasthan holding hospital vicariously liable. NCDR.
NCDRC taken cognizance of discharge summary and attempt of manipulation of record and referred the SC judgment Laxman vs. Trimbak, 1969 while defining the duties of doctors. There is need for emphasizing among medical fraternity about the duties especially in post operative care and follow up seriously and contents of discharge summary to avoid such types of medical negligence cases.
Key Words: Medical Record, Casual Manner of Follow up, Discharge Card, Operative Notes, Cataract Surgery, Vicarious Liability, Dislocation of Implanted Lens
Background of the Case:
This order decided two revision petitions filed in a SCDRC, Rajasthan judgment. The facts are taken from Revision Petition No. 662 of 2015.
Facts of the Case:
On 25.2.2011, Dr. L. K. Nepalia, an Eye Surgeon (OP-1) performed cataract surgery on the left eye of the complainant, Smt. Kamla in St. Francis Hospital, Ajmer/OP-2 and discharged the complainant on next day.
On 28.2.2011, during follow-up, she complained of pain in her operated eye, the OP 1 prescribed medicines. Thereafter, till 18.4.2011, complainant visited OP-1 on several times, coming all the way from Pali. On each occasion, she complained of pain and loss of vision, in her operated eye.
The OP 1 prescribed routine medicines and assured the complainant that she would be normal, soon. The OP-1 told her not to come all the way from Pali, but consult Dr. Pradeep Maheshwari of District Pali itself, still there was no improvement.
At the insistence of complainant, the OP-1 referred her to Dr. Raj Kumar Sharma at Jaipur; but she consulted at ASG Hospital at Jodhpur, who told her that during Cataract surgery, the implanted lens had been detached/ dislocated.
She underwent another surgery at ASG hospital, where she incurred further expenses of Rs.33000/-.
Allegations and Claim for Compensation:
Therefore, alleging negligence on the part of OP, she filed a consumer complaint before District Forum, Ajmer. The District Forum dismissed the complaint.
Case before the SCDRC, Rajasthan:
The complainant filed first appeal before the State Commission, which was allowed, with the order that OP shall pay cost of Rs.33000/- incurred for second surgery, conducted at ASG Hospital plus cost of medicines, tests, other expenses totaling Rs.15000/-. The complainant is also entitled to receive compensation for medical negligence which is fixed at Rs.100000/- and also pay Rs.21000/- as cost of litigation.
Revision Petition before NCDRC:
Aggrieved by the order of State Commission, both the OPs filed two separate revision petitions.
At the admission stage, learned counsels for the petitioners were present and argued the matter. The learned counsel for the OP-2 hospital submitted that, OP 2 is a Missionary Charitable Hospital and OP 1 is an Eye Surgeon, retired as a Senior Professor from Jawaharlal Nehru Medical College, Ajmer, who attends the hospital. Thus, OP-1 is not in employment with OP-2.
The hospital provides only infrastructure for running OPD and other services, as required by the doctors. The operation was conducted by OP 1. Therefore, there was no negligence on the part of hospital. The patient never visited the hospital after 18.4.2011. The learned counsel for Dr. L. K. Nepalia argued that the State Commission came to the conclusion on imaginary basis and on the presumptions, OP-1 properly treated the patient, cataract operation was uneventful. During each follow-up visit, OP-1 examined the patient and advised medicines. There was no dislocation of the IOL. The dislocation was noted, only on 18.4.2011, upon which, he advised another operation but, the patient never turned-up to him and got operated somewhere else. Therefore, there was no negligence by the OP 1 during the treatment and advice. Learned counsel for the OP/Dr. L. K. Nepalia submitted that the patient’s eye was operated for the cataract. The patient was called for follow up. There was no abnormality. Hence, only medicines were prescribed.
On 18.4.2011, he noted the displacement of lens and accordingly advised the patient to consult Retina Surgeon at higher center. The bad condition of the eye may be due to rubbing of the eye.
Observations of the NCDRC:
We have perused the medical records available on file. To overcome this controversy, we have requisitioned the record form the District forum. It showed that the patient visited OP 1 on 28.2.2011, 3.3.2011, 7.3.2011, 17.3.2011, 31.3.2011 and 18.4.2011 about eight times. Every time, the doctor prescribed only eye drops and tablets.
On the file of revision petition we have noted some writing on the discharge summary below the name as under:
“Tension 12.2 both eye IOL left eye in vitreous
Adv.
Vitrectomy, explanation with secondary iol under explained prognosis on 18/4/2011.”
Surprisingly, they said entry is conspicuously missing on the discharge summary record on District Forum’s file. Thus, it was a deliberate attempt of insertion.
Not a Free Service:
We have noted two payment receipts showing the hospitalization charges as Rs.5000/-, consultation and registration charges of Rs.100/- Therefore, certainly, it was not a free service.
Issue of Discharge Summary:
Secondly, the discharge summary did not show any clinical or treatment details, during follow-up. Nothing was mentioned about condition of eye. Therefore, under these circumstances, it is difficult to fathom what advice and mode of treatment OP-1 adopted during post cataract follow up.
Issue of Negligence and Vicarious Liability:
Therefore, we are of considered view that, OP-1 had just prescribed eye drops and medicines, without checking the patient’s complaints. This amounts to negligence, inaction and passivity of OP 1/doctor. Hence, OP 1 was negligent; consequently the hospital is vicariously liable. This view finds support from various judgments of Supreme Court.
Issue of Duty of Doctors:
Medical Negligence had been discussed in the English Courts which was followed and approved by the Indian Courts also. In Laxman vs. Trimbak, AIR 1969 SC 128 Hon’ble Supreme Court held thus above:
"The duties which a doctor owes to his patent are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patent owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must being to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law required: (cf. Halsbury's Laws of England, 3rd Ed. Vol. 26, p. 17)".
Summary and Conclusions;
In conclusion, the OP’s follow up treatment was just in a casual manner, the clinical notes did not mention about medicines or condition of patient. Also, there is clear cut insertion made by OP-1, on the discharge summary. Therefore, we hold the OP 1 and OP 2, i.e. doctor and Hospital, respectively liable for this Act. On the basis of forgoing discussion, we do not find any substance to interfere with the order of the State Commission. Hence, both the revision petitions are dismissed.
References:
J.M. Malik, J. Dr. S.M. Kantikar, Member. Dr. L.K. Nepalia vs. Smt. Kamla & Anr., Revision Petition No. 686 of 2015 (Against the Order dated 12/12/2014 in Appeal No. 1472/2012 of the State Commission Rajasthan), Date of Judgment: 7th Aug 2015.
Laxman vs. Trimbak, AIR 1969 SC 128.
Halsbury's Laws of England, 3rd Ed. Vol. 26, p. 17

Is there no need for getting recognition of Degree/Diploma from MCI for increase in Admission Capacity?

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 6^th 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 6^th 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 6^th Aug 2015 will have far reaching consequences in the area of Quality of Medical Education in India.

MCI Circular dated 19^th 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 6^th 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. 6^th 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 19^th Aug 2015 [4] for inviting applications for increase of medical seats as per the mandate of the SC Judgment dated 6^th 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 6^th 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

4.        URL: http://qualityofmedicaleducation.blogspot.in/2008_07_25_archive.html

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.)”