No reason to think that University, NMC won't consider affiliation plea for PG medical seats: Kerala HC to Malabar Medical College

The HC bench comprising of Chief Justice Mr. S. Manikumar and Justice Shaji P. Chaly, in the judgment dated 24.03.2021, mentioned, "if the appellant makes any application in accordance with law in regard to the year 2022-2023, we have no reason to think that the University as well as the National Medical Commission would not consider the said application."

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The case concerns the Malabar Medical College Hospital and Research Centre, constituted by a registered Charitable Educational Trust established in Kozhikode in the year 2003. The medical college with 150 seats has been operational since 2010 and it also has a 720 bed attached hospital with all speciality and super speciality departments.

The college filed the petition as the National Medical Commission, the erstwhile Medical Council of India, asked the college to submit the consent of affiliation (COA) from the Kerala University of Health and Allied Sciences regarding the issuance of the consent of affiliation for some of the postgraduate courses applied for by the appellant college.

As per the petitioner medical college, NMC overlooked the fact that the Kerala University itself expressed its inability to carry out the inspections regarding the matter due to the pandemic Covid-19. Those applications had been filed by the college seeking seats in various post graduate courses at Malabar Medical College under Section 10A of the Indian Medical Council Act, 1956 ('Act, 1956' for short) for the academic year 2021-2022.

The application was filed on the basis of judgment on a petition last year 2020, which was filed by the college against the Kerala University's decision to put a cap on the number of seats as two as against more number of seats applied by the appellant. The single judge in that judgment had asked the University to take a decision regarding enhancing the number of seats and asked NMC to consider the application as a continuing one.

In fact, the appellant college submitted before the HC bench that the requisite fee of Rs.4.72 lakhs for each course was paid by the appellant and therefore, the stand adopted by the Medical Commission of India that the appellant has not produced the consent of affiliation from the University cannot be sustained under law.

The college had applied for 9 postgraduate medical curses but was granted consent by the University for 5 courses, and that too, limiting the seats to two. However, as per the several communications, the seats were enhanced in MS Orthopedics, MD Paediatrics, MD Dermatology Venereology, and Leprosy, MD General Medicine and MD Anesthesiology.

However, NMC informed the college that the applications were scrutinized in accordance with the provisions of the 'Opening of a New or Higher Course of Study or Training (including a postgraduate course of Study or Training) Regulations, 2000 and on scrutiny, it was found that the consent of affiliation for starting of seats in MD (Community Medicine), MS (General Surgery), MS (Otorhinolaryngology), and MD (Paediatrics) have not been submitted. NMC further asked the college to send the application fees of Rs.4.72 lakhs for each subject through RTGS/NEFT and also to forward the details in respect of the same.

The college then included an additional prayer in the petition seeking the university to grant the consent of affiliation with or without inspection so as to ensure that it reaches the National Medical Commission on or before 15.12.2020.

Although the University opposed the reliefs sought by the college, on the basis of the HC directions, seats were enhanced. However, the applications submitted by the appellant for the academic year 2021- 2022 for MD Anaesthesiology, MD Pulmonology, MD Emergency Medicine, MS Obstetrics and Gynaecology, and MD Pathology were not supported by the consent of affiliation of the University.

Thus, the college again approached the court and sought a direction given to the NMC to proceed with the applications dated 29.07.2020 for an increase in the admission capacity in 9 PG Medical Courses for the academic year 2021-2022 without insisting on the payment of the fee. However, the counsel for NMC, erstwhile MCI submitted that the applications made by the college would be considered on payment of the fee.

The college then submitted representation before the NMC seeking bank account details for remitting fee in respect of the applications made for an increase in the admission capacity in 9 PG medical courses. On 18.11.2020, NMC informed the college that the bank details were available on the website and which had already been sent through an e-mail dated 23.10.2020. The college then transferred an amount of Rs.42,48,000/- for this purpose. Therefore, on 23.11.2020, the college had been informed that it hadn't submitted the consent of affiliation regarding the concerned PG courses.

However, the single judge bench then found out that the University after the inspection had granted consent of affiliation for additional seats for 5 courses and two seats in respect of the new postgraduate courses. The HC also noted that the time limit prescribed in regard to the consideration of the applications for starting of the course was finally extended up to 31.08.2020 and therefore, the Medical Council of India/Board of Governors/Medical Commission were not at liberty to receive any application after the cut-off date.

Thus, the single judge bench didn't issue any directions to NMC to accept and process the applications preferred without the supporting documents as envisaged in the guidelines issued for the purpose. Thus, the college approached the HC again.

After listening to all the contentions made by all the partied the HC bench noted that the college couldn't submit an application before NMC with the requisite documents ie., to say the consent of affiliation from the University. The HC bench also noted that the college took no steps within the cut-off date to the alleged failure on the part of the University to conduct an inspection with respect to the other courses to issue its consent. The college filed the petition only on 11-12-2020.

However, the counsel for the college contended that in personal communication, NMC had mentioned that the time period had been extended up to 15.12.2020. However, the HC bench noted that the communication mentioned only 4 postgraduate courses for which the consent of application hadn't been found. The letter also mentioned that the consent of affiliation submitted by the appellant in regard to the 5 courses was not traceable in the office.

The HC bench observed that the personal communication couldn't be treated as an extension of the time period by NMC but "it could only be treated as a communication issued basically thinking that the appellant has secured the consent of affiliation from the University for the 4 post graduate courses mentioned thereunder also, apart from the consent of affiliations of the five courses forwarded."

However, in reality, the University hadn't issued any consent of affiliation before the cut-off date and even now. Addressing the contention of the college that the University asked for an extension of time for inspection the HC bench mentioned that NMC never allowed that.

Mentioning the structured formula adopted by NMC under the Act, 1956, the later Act, 2019, and the Regulations afterward in respect of the receipt of applications, processing the same, and the culmination of the proceedings, the HC bench mentioned,

"It would not be conducive and feasible to alter the said formula adopted in the matter of processing the applications by the statutory authorities, by the courts of law, so as to enable the appellant to secure any consent/permission after the cut off date, and if done, it would materially affect the student community, since it would prolong the course period and which In turn would be against the public policy and the public interest."

Further, the HC bench referred to several judgments by the Apex Court in Ponnaiyah Ramajayam Institute of Science and Technology Trust v. Medical Council of India and another, and V.N. Public Health and Educational Trust etc. v. State of Kerala and ors., where the Supreme Court adopted a strict view in respect of the structured formula and cut-off date fixed for entertaining the applications for new courses and enhancement of seats etc.

Finally, mentioning that the NMC and Kerala University had fixed the last date for submitting the application for the academic year 2022-2023 on 07.04.2021, The HC bench mentioned,

"If the appellant makes any application in accordance with law in regard to the year 2022-2023, we have no reason to think that the University as well as the National Medical Commission would not consider the said application."

Finally, failing to find any error of judgment in the single bench order, the HC bench denied interfering with the judgment dated 15.12.2020 and disposed of the petition.

To view the original court order, click on the link below.