JUDGMENT

1. The issue boils down to the sharing of seats between the management of various self financing medical colleges and the Government for the Post Graduate Medical Courses, 2011. All these Writ Petitions are connected and I shall refer to the exhibits and parties in W.P(C) No. 16421 of 2011 filed by Kerala Christian Professional College Managements’ Federation and another for the sake of convenience.

2. Ext.R1(c) is the No Objection Certificate issued by the Government to start Post Graduate Courses as a prerequisite for the grant of Essentiality Certificate and it inter alia reads as follows:-

“It is stated that Government have No Objection in starting Post Graduate courses by the Jubilee Mission Medical College & Research Institute, Thrissur, subject to the conditions that the institution shall fulfill all the requirements as fixed by the Medical Council of India and to share 50% of the seats to Government Merit Quota……

(emphasis supplied)

3. Ext. R1(i) is the prospectus later issued by the Kerala Christian Professional College Managements’ Federation for admission to MD/MS/PG Diploma Courses - 2011. Clause1.4 therein is as follows :-

1.4 This prospectus contains the rules and regulations applicable for selection and admission for academic year 2011 to MD/MS/PG Diploma Courses in the Member colleges listed above

Note:- As per the MCI norms. 50% of the total seats in Non-Governmental Institutions shall be filled by the competent authority notified by the State Government. However, if there are vacancies on/after 25th May, 2011 the same shall be filled up by KCPCMF.

(emphasis supplied)

4. Such a provision is in consonance with the second proviso to Regulation 9(2)(d) of Ext.R3(a) Medical Council of India Post Graduate Medical Education Regulations, 2000 (hereinafter referred to as ‘MCI Regulations’ for short). The same is as follows:-

Provided further that in Non-Governmental Institutions fifty percent of the total seats shall be filled by the competent authority notified by the State Government and the remaining fifty percent by the Management(s) of the Institution on the basis of inter se academic merit.

5. Ext. R1 (i) prospectus was approved by Ext. P3 order in W.P (C) No. 18290/2011 by the Admission Supervisory Committee for Professional Colleges subject to the fulfillment of many conditions including the following:

“1. That 50 percentage of the total seats shall be filled up by the Government as provided in the clause 9(2)(d) of the Post Graduate Medical Education Regulation, 2000.”

6. It is disgusting to note that the prospectus is so approved by the Admission Supervisory Committee as late as on 20.6.2011 unmindful of the future of the students who have to be admitted to the course normally before 30.5.2011 The petitioners contend that they had addressed several letters to the Government for allotment of candidates for the 50% quota as per the prospectus and MCI Regulations.

7. The following are the details:—

Sl. No. Sender Addressee Date Exhibit 1. Jubilee Missions Medical College - and Research Institute Department of Health and Family Welfare 95.11 P6 2. Jubilee Missions Medical College and Research Institute Department of Health and Family Welfare 115.11 P8 3. Jubilee Missions Medical College and Research Institute Department of Health and Family Welfare 13.5.11 P9 4. Jubilee Missions Medical College and Research Institute Department of Health and Family Welfare 19.5.11 P10 5. Malankara Orthodox Syrian Church Medical College Health and Family Welfare Department 105.11 Rl(e) 6. Kerala Christian Professional College Managements Federation Fee Regulatory Committee for Professional Colleges 95.11 R1(g)

8. It is stated that the Government did not allot students for the 50% quota even though the deadline fixed for completing the admission process as per the MCI Regulations was nearing. The petitioners therefore filled up the 50% seats originally offered to the Government by its own lest it would lapse. This admission was later directed to be cancelled by Exts. P14 and P16 orders of the Government which is challenged in this Writ Petition.

9. The Advocate General on behalf of the State points out that the deadline fixed for admission to the Post Graduate Courses has been extended by the Supreme Court Ext. R1 (a) is the order of the Supreme Court in W.P(C) No. l97 of 2011 extending the time schedule of Post Graduate Counselling, 2011 for All India quota. Ext. R3 (c) is the application put in by the State of Kerala seeking extension of time schedule for filling up the State quota available in the self financing medical colleges. The application specifically refers to the problems encountered by the State Government in implementation of time schedules in Medical and Dental admissions. The names of 10 self financing medical colleges figure in the application wherein the prayer was to complete the admission process by 30.6.2011 The Supreme Court granted extension of time till 1.7.2011 by Ext. R3 (d) order and it is submitted that the State Government allotted the candidates on the same date itself. The Advocate General asserts that the self financing medical colleges are obliged to admit students allotted by the State in the 50% quota within the time extended by the Supreme Court. The failure to do so by the self financing colleges resulted in Exts. P14 and P16 orders directing cancellation of admission passed by the State.

10. The necessity for providing a time schedule for the course and fixing the period during which admissions can take place has been highlighted in Medical Council of India v. Madhu Singh ((2002) 7 SCC 258). The same has been reiterated in Mridul Dhar v. Union of India (2005 (1) KLT 723 SC) : ((2005) 2 SCC 65) which fixes the last day for admission to Post Graduate Courses as 31st May. This prompted the State to move Ext.R3(c) application leading to Ext.R3(d) order of the Supreme Court. Ext.R3(d) order inter alia reads as follows:—

Though on behalf of certain private medical colleges as well as the students certain grievances were put forth, we are not going into the merits of their claim in this application. Considering the earlier orders of this Court and the Regulations of MCI and the details furnished in support of the above application, we extend the time by 1st July, 2011.

It is brought to our notice that some Writ Petitions were filed before the High Court and are pending as on date. In view of the same, the present order of us extending the time is without prejudice to the stand of the respective parties in those Writ Petitions.

It is also clarified that in respect of the above selection, the Medical Council of India is free to make appropriate action in accordance with their regulations applicable.

(emphasis supplied)

11. The petitioners contend that Ext. R3(d) order is only a revival of Ext.R1(a) order in the same Writ Petition by the Supreme Court and can therefore relate to All India quota only. But a reading of Ext.R3(c) application reveals that it very much relates to the State quota available in the self financing medical colleges. Ext.R3(d) order specifically refers to 66 Post Graduate Degree seats and 8 Post Graduate Diploma seats which allays the apprehension that it relates only to seats surrendered, fallen vacant or fresh. The petitioners have no case that it is not bound by the extension of time granted till 1.7.2011 by the Supreme Court evidenced by Ext.R3(d) order. It necessarily follows that the Government is entitled to allot seats in the 50% State quota on or before 1.7.2011 The consequence that flows therefrom is that candidates admitted by the management on its own in the State quota deserve to be expelled. The Government was justified in issuing Exts.P14 and P16 orders directing the self financing medical colleges to cancel the admissions made in the 50% State quota.

12. Mr. Kurian George Kannanthanam, Senior Advocate, on behalf of the petitioners vehemently argues that Regulation 9 of MCI Regulations has become obsolete and is not binding. He contends that MCI Regulations is based on the dictum laid down in Unnikrishnan J.P v. State of Andhra Pradesh ((1993) 4 SCC 111). He further adds that the said decision has been partly over ruled in T.M.A Pai Foundation v. State of Karnataka ((2002) 8 SCC 481). He also refers to the decision in P.A Inamdar v. State of Maharashtra (2005 (4) KLT SN 3 (C.No.3) SC : (2005) 6 SCC 537) to contend that usurpation of seats by the Government is an infringement of the rights guaranteed under the Constitution of India. Heavy reliance is placed on Paras 125 and 126 of the aforequoted decision to contend that the petitioners cannot be compelled to give up a share of the available seats to the candidates chosen by the State. The orders of the High Court of Karnataka in W.P (C) Nos.41058 - 41101 of 2003 and that of the High Court of Andhra Pradesh in W.P No. 16547/2010 and connected cases are relied on in support. The Advocate General alertly points out that special leave has been granted in the appeals therefrom by the Supreme Court. It is contended on behalf of the State that seat sharing between the management and the State is permitted even as per para 68 of T.M.A Pai Foundations's case.

13. I must immediately note that the relevant prayer in the Writ Petition is only to declare that Clause 9 of the P.G Medical Education Regulations, 2000 does not empower the State Government to take over 50% of P.G seats from petitioner's colleges’. There is no prayer in the Writ Petition to declare that Clause 9 of the MCI Regulations is ultra vires or arbitrary which is the minimal necessary for a Writ Court to annul it. It remains to be seen as to whether the petitioners could wriggle out of the obligation to share seats with the State in view of its declared stand. The relevant clause in Ext.R3(i) Prospectus quoted above concedes that 50% of the seats shall be filled by the competent authority notified by the State Government. The petitioners have stated in Ext.P6 letter as follows:—

“This is to inform you that we are not against Government allotting 50% of the seats.”

14. The petitioners have stated in Ext.P9 letter as follows:—

“Since as per the MCI Regulations, the last date for PG Medical Admissions is 31st May. Kindly make arrangements to allot the students so as to complete the admission on/ before 25th May 2011”.

15. The petitioners have given the break up of seats between the Management and the State in the various disciplines of Post Graduate Course in Ext. P9 and Ext. P10 letters. The petitioners have again stated in Ext. R1(e) letter as follows:—

“We humbly request the Government to intimate us by return whether the Government is willing to allot the agreed 50% Post Graduate students to this College in accordance with the above fee structure. The matter may be treated as most urgent since PG Admissions have to be completed positively by 31st May 2011”.

16. Yet another letter is Ext.Rl(g) wherein the petitioners have stated as follows:—

“The colleges have no objection in principle to give 50% of the seats to be allotted by the Government. They are intimating the same to the Government”.

17. It does not lie in the mouth of the petitioners to contend that they are not liable to part with 50% seats to the State in view of the stand taken by them in the Prospectus and other correspondence. The petitioners are estopped from raising such a plea late in the day when all through they were eager and willing to accept the intake of students allotted by the Government in the State quota. The contention raised on the basis of the orders of the High Courts of Karnataka and Andhra Pradesh does not merit consideration in view of the fact situation available in this case.

18. The binding nature of the MCI Regulations framed under the Indian Medical Council Act, 1956 has been clearly explained in Dr. Preeti Srivastava v. State of Madhya Pradesh ((1999 (3) KLT SN 31 (C.No 32) SC : (1999) 7 SCC 120). Reference in this connection to the judgment dated 25.1.2012 of the Supreme Court rendered by a Bench headed by Justice Shamin Sainudheen v. Medical Council Of India No.1015/2002 : 2012 (1) KLT SN 97 (C.No.104) (SC) is apposite. The civil appeal arose out of the decision in Shamin Sainudheen v. Medical Council of India (2010 (4) KLT 103). Thus the Supreme Court has even recently reiterated that admission to medical colleges are governed by MCI Regulations which cannot be flouted. The MCI Regulations as it stand holds the field till it is restructured in the wake of the dictum in T.M.A Pai Foundation's case and P.A Inamdar's case.

19. Mr. Alexander Thomas, Advocate on behalf of the Medical Council of India drew my attention toExt.R3(b) order of the Supreme Court declining stay of Regulation 9 of MCI Regulations. He points out that MCI Regulations were not the subject matter of challenge in T.M.A Pai Foundation's case as has been noticed in Islamic Academy of Education v. State of Karnataka (2003 (3) KLT SN 88 (C.No 118) SC : (2003) 6 SCC 697). The latter decision in factemphasizes that conditions can be stipulated through the regulations for grant as well as for continuation of recognition. He also contends that minority educational institutions do not become immune to regulatory measures merely because Art 30(1) of the Constitution of India is enacted. He places heavy reliance on the decision in P.A Inamdar's case to buttress this contention particularly Paras 91, 94 and 103 thereof. Mr. K. Gopalakrishna Kurup, Senior Advocate on behalf of the students contended that MCI Regulations have been rearranged with the assent of the Government even in the year 2009.A detailed consideration of these aspects is unnecessary in this case especially since the Supreme Court is seizin of the matter as evident by Ext.R3(b) order.

20. Mr. K. Jayakumar, Senior Advocate, on behalf of some of the petitioners contends that the Government has arbitrarily sliced off its 50% quota from the various disciplines without any rationale or justification. The Advocate General defends the action of the State and invites my attention to Ext. Rl(b) order of the Government which inter alia states as follows:—

“Methodology for sharing of seats between self financing colleges and Government will be as follows.-

All subjects shall be ranked alphabetically and the seats allotted in each discipline for that college shall be listed against that subject. The first seat available on the first subject shall be allotted to the college and the next seat to the Government. If there are odd number of seats in one. subject, allotment of the first seat in the next subject will go the agency (college or Government), who has not been allotted the last seat in the previous subject.

To illustrate, if Anesthesia and Bio Chemistry are the consecutive subjects in the list and if there are three seats in both the subjects, the first seat in Anesthesia will be allotted to the college second to Government and third to the college. The first seat in Bio Chemistry will be allotted to Government, second to the college and the third to the Government.

After allotment in all the subjects have been done, the total number of seats for Degree and Diploma Courses (to be calculated separately). The first seat in next years allotment will go to the agency that did not get the last seat in the last year”.

21. Thus a set pattern has been adopted as the methodology for sharing of seats between self financing colleges and Government which has not been shown to be in any way arbitrary or inequitable. The allotment of seats in one college will have a bearing in the allotment in another college and tinkering with it will have a cascading effect. It was therefore incumbent on the part of the petitioners to have impleaded all the affected parties or impleaded one in a representative capacity and taken out paper publication. It would not suffice by impleading only the candidate who has secured admission in the 50% quota in a particular college in view of the chain reaction likely to be triggered. Therefore I have no hesitation to hold that the Writ Petitions challenging the methodology of sharing of seats between self financing colleges and the Government are bad for non joinder of necessary parties as well.

22. Even Ext. R3(d) order of the Supreme Court which governs the parties as regards the admission for Post Graduate Courses, 2011 indicates the primacy of the MCI Regulations. The self financing colleges are bound to share the seats with the Government in ratio of 50:50 in view of the offer held out in Ext.R1(i) prospectus and the stand taken in the various correspondence referred to supra. Ext.Rl(c) No Objection Certificate to start the course was issued by the Government only subject to the condition of sharing of seats and the petitioners cannot turn around now to contend otherwise. Moreover Ext.R1(c) Prospectus was approved by the Admission Supervisory Committee for Professional Colleges subject to the sharing of seats only. The plea of the petitioners falls from grace after having accepted the No Objection Certificate and the approval of the Prospectus without any demur. It is wished that the Government makes allotment in time at least in the years to come to avert a situation of ‘chaos is come again’ as written by Shakespeare in Othello and quoted in Madhu Singh's case.

23. The practice of filing Writ Petitions by ‘Associations’ and ‘Federations’ of Managements of Colleges without the individual managements figuring as petitioners has also to be deprecated. Such practice is prevalent only in industrial parlance wherein the cause of numerous employees is espoused by Trade Unions and Associations to strengthen their bargaining power. The law makers of the Constitution has advisedly made a clear distinction between a fundamental right available to ‘any person’ and those guaranteed to ‘all citizens’. Part III ofthe Constitution of India deals with the same and all citizens are persons even though all persons are not citizens. A registered Federation might be a person entitled to file a Writ Petition and is not a citizen who alone can complain of violation of Art. 19(1)(g) of the Constitution of India.

24. What disturbs me is the fact that MCI Regulations have not yet been made applicable to all the medical colleges in the State as highlighted by the petitioners. The State Government should immediately address itself to this cardinal issue so that a uniformity is brought out in the enforcement of MCI Regulations. Mr. Jaju Babu, Advocate and Mr. N.M Madhu, Advocate made a fervent plea that the candidates expelled may be accommodated in the next academic year in the Management quota. Such a course would prejudicially affect the meritorious candidates staking their claim in next year and would certainly add to the confusion. The Writ Petition filed by the candidates allotted in the 50% state quota has become infructuous as their grievance stands redressed. The action of the State is well founded and does not call for any interference in exercise of the jurisdiction under Art.226 of the Constitution of India.

25. The Writ Petitions fail and are dismissed. No costs.