ADMISSION OF STUDENTS TO MEDICAL COLLEGES POWER OF MEDICAL COUNCIL OF INDIA
– Dr. Justice A. K. RAJAN, L . L D.
The Indian Medical Council Act 1956 was an Act to provide for “ the Reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for the matters connected therewith” after repealing “The Indian Medical Council Act 1933”.
Composition of Medical Council:
1(a): The Act contains in all 34 sections. Section 2 is definition section; S.3-Constitution and Composition of the Medical Council of India [MCI]; S.4 – Mode of Election of the members of the Council; S-5-restrictions on the nomination of members; S-6- states that the Council shall be a body corporate with perpetual succession; S-7 – fix the term of office of the President and members; S-8 lays down that MCI shall meet at least once in a year; S-9 enables MCI to appoint officers, servants and the committees ; S-10- relates to its Executive Committee.
1(b): Ss.10A, 10B & 10C- were included by a subsequent amendment, in the year 1993. Section10A mandates the prior permission from the Central Government, on the Recommendation of the MCI, for establishing a New Medical college or new courses of study, by any person including any university, notwithstanding anything contained in any other law for the time being in force; S-10 B- empowers the MCI , to deny Recognition of certain medical qualifications; S.10C- requires the medical colleges established between1992 and 1993 without getting permission from central govt. to seek and get permission from MCI.
Recognition of Medical qualifications:
1(c): Section-11 mandates that MCI shall recognise the medical qualifications granted by medical colleges included in the second Schedule; Sections 12 to 14 relate to recognition of certain foreign medical degrees; Section -15 guarantees the right of the qualified persons to be enrolled in the State medical register; S-16- enables the MCI to get information of courses and examinations conducted by the colleges;S-17 power to inspect; S18 power to send visitors for examinations; S-19- Withdrawal of recognition; S-19A. Fixing minimum standards for medical education; S-20-Post – graduate medical education committees;
1(d): S.20A- Professional Conduct; S-21 to 29- Registration in Indian Medical Register etc.; S-30-31- Commission of enquiry; S-32 – Power to make Rules ; Section 33 empowers the MCI to make Regulations to carry out the purpose of the Act; S-34- Repeals Act 27 of 1933 MCI Act.
Powers of M C I :
2: From the foregoing paragraph it is seen that the MCI is a body incorporated created by the Act. Its powers are to constitute certain committees and to conduct meetings; recognition of medical qualifications granted by the Indian Universities as well as foreign medical degrees; to enroll the medical practitioners as members of the MCI; to get information on the courses conducted by the medical institutions; to conduct inspections during examinations; to send visitors to the examinations; withdrawing recognition under certain conditions; to fix minimum standards of medical education; to prescribe standards of professional conduct and etiquette and code of ethics; to enter or remove the names from Indian medical registers; to constitute committee for enquiring any misconduct of its members etc.
3: Power to make Rules under the Act:
The power to make Rules of MCI is vested only with the Central Government by Section 31 of the Act. The Council cannot make any Rule by itself.
- Power to make Regulations:
Section 33 of the Act confers power on MCI. the to make Regulations to carry out the purposes of the Act. That power can be exercised by the MCI only with the previous sanction of the Central Government. The Section also enumerates the purposes for which such regulations can be made. They may provide for:
i) The management of the properties of the council and the maintenance and audit of the accounts;
ii) summoning and meeting of the Council, fixing the venue and time and quorum for such meetings;
iii) resignation of its members;
iv) determining the powers and duties of the President and Vice President;
v) Mode of appointment of the Executive Committee and other committees etc.
vi) fixing the tenure of its officers and servants, frame schemes and the particulars to be given under the schemes and fix fees payable for schemes under clause (b) of sub section 10A ;[ it relates to scheme for increasing the admission capacity in any course in the medical institutions].
vii) Forming schemes for matters specified in Section 10A.
viii) Criteria for identifying a student who has been granted a medical qualification referred into in the Explanation to sub- section (3) of section 10B.
ix) Particulars to be stated and proof of it for Registration.
x) Fees to be paid.
xi) Appointment, power, duties of medical inspectors and visitors.
xii) Courses and period of study, training to be undertaken, subjects for examination and standards of proficiency for grant of medical qualifications.
xiii) Standards of staff, equipments, and other facilities for medical education.
xiv) Conduct of professional examinations, qualification for examiners.
xv) Standards of professional conduct and etiquette, code of ethics etc.
xvi) Any other matter for which regulations can be made under the Act.
Nature of Authority of M C I :
- Thus, initially MCI was established ONLY to register the medical practitioners in each States as well as to maintain an all India register, fo the purpose of fixing standards of conduct, etiquette and ethics for the medical practitioners and to take disciplinary action whenever necessary and to oversee matters relating to conduct of examination, and for fixation of standards for medical courses and studies. Subsequently, by amendments made in1993, power to make recommendation to the Central Govt. for granting permission to establish a medical institution, power to grant recognition of medical degrees, conferred by Indian Universities and certain foreign Universities, were conferred on the MCI, by Sections 10A and power not to recognise the medical qualifications and courses of study granted by the institutions or courses, started without the permission of Central Govt by Section 10B of the Act.
Power to make Regulations by M C I :
- Power to make Regulations conferred on the MCI is only for carrying out the purposes of the Act. The MCI cannot exceed the powers conferred on it while making regulations. In case any regulations were made exceeding its powers it will not be valid and it will not be enforceable and it will be void. Further MCI is only a “Statutory body”, a body corporate. It has no power to make any Rule or Regulation beyond its scope. That is, the MCI can only fix the standards of medical education, standards of the conduct, etiquette and ethics; can take disciplinary action on the medical practitioners when they violate the norms fixed by MCI. It has been conferred only with the power to recommend for establishing a medical institution and fix standards of the courses.
Recommendation to Central Govt. :
- Power to recommend for starting a medical institution or starting new courses of studies, does not include power to regulate admission of students to the medical institutions. Institutions and colleges are affiliated to various Universities. Those Universities have Rules and Regulations relating to admission of students to the affiliated colleges. The affiliated institutions are bound to follow those rules and regulations. Otherwise their affiliations can be withdrawn. Each university may have framed different rules and methods for admission of students.
Dental Council of India [D C I ]
- The Dentists Act 1948 established the Dental Council ‘to make provisions for the regulation of the profession of dentistry and for that purpose to constitute Dental Council ’. By the amendment made in 1972 power was conferred on the Council for Regulation of Dental Qualification. Section 20 confers the power to make Regulations ‘not inconsistent with the Act’ and only ’to carry out the purposes of the Act’.
Extent of powers of M C I & D C I:
- Powers of M C I and D C I are similar. The power extends only to prescribe Standards of their professional conduct, etiquette and ethics; to take disciplinary action on the erring professionals; to recommend to Central Government on starting a new institution, or courses of study. They do not have any other power.
10:. Under the Constitution of India, as per Entry 32 List II (State List) only the States have the power to incorporate (start) and regulate the Universities. It must be borne in mind that under Entry 44 list I (Union list) that power has been specifically excluded; therefore Central Government cannot start a university or regulate Universities. Prescribing method for admission of Students into affiliated colleges or institutions, amount to regulating or exercising the powers of the Universities. In case, if the MCI or DCI make any regulation for admission of students into medical institutions, it would be nothing but interfering with the powers of the University conferred by a valid law.
T.N. Dr. M.G.R. Medical University Act:
11: In Tamil Nadu, Dr. M.G.R. Medical University has been established exclusively to regulate the Medical education in Tamil Nadu. Section 35 of the Act relating to “Admissions to University courses“reads as follows:-
“35. Admission to University Courses.-(1) No person shall be admitted to a course of study or training in a College or University laboratory or an approved institution to
appear for any examination held by the University for conferring any degree, diploma or other academic distinction unless he,-
(a) has passed the qualifying examination prescribed therefore by the university; and
(b) fulfils such other conditions as may be prescribed by the regulations,
Section 36 of the Act relates to admission to University Examinations:
“36. Admission to University examinations,—(1) No candidate shall be admitted to any University examination unless,-
(a) he is enrolled as a member of a University college, university laboratory, affiliated college or approved institution; and
Thus, the T.N. Dr. M.G.R. Medical University Act regulates or prescribes the method of admission to medical colleges and institutions within the State of Tamil Nadu. This has been done exercising the legislative powers conferred by the Constitution on the State of Tamil Nadu.
M C I & D C I have no power to Regulate Admission of students :
- Rules relating to admission of students to the Medical and Dental courses are vested with the respective institutions. That is regulated by the laws and statutes made by the Universities. Every college has to be affiliated to some University; only the students pass out of those colleges will be given the Degrees or Diplomas by the respective universities. Each University is created by a law passed by a competent Legislature of a State which also confers powers on the Universities to frame rules governing the admission of students in the colleges affiliated to it. As stated above T.N.Dr.M.G.R. Medical University specifies the rules and methods for admitting students for the medical courses. Neither the MCI nor the DCI has any say in that matter. Therefore they cannot issue any direction to any of the Universities to follow a certain method for admitting the students in any of the courses conducted by the affiliated institutions.
Only State Governments can regulate Admissions to University courses:
13: As seen above the power to create and/or regulate an university is vested in the State by Entry 32 List II [State List] in VII Schedule of the Constitution. Exercising that power any State Legislature can make a law regulating the admission of students to any affiliated college under any University. Since the Central Government has no power to regulate the Universities it cannot pass any law in the matter to admission to any affiliated college of any university. That is the Scheme of the Constitution of India.
14: T.N. Legislature passed an Act in 2007, abolishing Common Entrance Test for admitting students to the professional courses. Students are admitted to such courses on the basis of the qualifying Examinations. The rationale behind that is, when a student passes the qualifying examination conducted by the competent authorities, he becomes qualified to pursue any further course of higher studies and there is absolutely no need for passing another examination. It is a policy decision taken by the competent Legislative body. That is being followed from 2007 in the State of Tamil Nadu.
Supreme Court Judgment dated 28th April 2016:
15: Under the circumstances, a Writ Petition(C) No.261 of 2016 was filed before the Hon’ble Supreme Court by one ‘Sankalp Charitable Trust’ and another for the prayer:- to “a) Issue a writ of Mandamus or any other appropriate writ ……….directing the Respondents‘ (Union of India and others ) to conduct the National eligibility cum Entrance Test (NEET) for admission to MBBS Courses throughout the country for academic session 2016-17”. The matter was heard on 27th April 2016 and was posted to the next day on 28th April at 12.00 p.m. On that day the Hon’ble Supreme Court has passed the following order:
“It has been submitted by the learned counsel for all the Respondents that it is proposed to hold the examination in pursuance of Notification dated 21st December2010 issued by the Medical Council of India and the Dental Council of India ( ‘DCI’ for short)” ………..
In view of the submissions made on behalf of the respondents, we record that NEET shall be held as stated by the Respondents. We further clarify that notwithstanding any order passed by any court earlier with regard to not holding NEET, this order shall operate. Therefore, no further order is required to be passed at this stage.
It may be mentioned here that some learned counsel representing those who are not parties to this petition have made submissions that in view of the judgment passed in Christian Medical College , Vellore & others Vs. Union of India & others, reported in (2014) 2 SCC 305, it would not proper to hold NEET and this order should not affect pending matters
We do not agree with the first submission for the reason that the said judgment has already been recalled on 11th April 2016 and therefore, the Notification dated 21st December 2010 are in operation as on today.
It may however be clarified that by this order hearing of the petitions which are pending before this court will not be affected.”
Order of Supreme Court on 11-4-2016:
16: From the order of the Ho’ble Supreme Court, it is seen that there was an earlier decision by the Supreme Court in Christian Medical college case dated 18-7-2013 (reported in 2014 (2) SCC 305) and that decision had been “ RECALLED” on 11th April 2016, by a 5 judges bench headed by Hon’ble Justice Anil R. Dave, allowing the Review petitions; only reasons given for allowing the Revision petitions was that the bench did not follow some binding precedents. It is a debatable issue whether a court can Review and recall a decision rendered by it, without giving all reasons or affording an opportunity to all the parties to the judgement. Apart from that the validity or enforceability of the very same Notification was the issue in that case. If that be so, the Present Writ Petition should have been tagged on to that case. Hon’ble Justice Anil R. Dave was one of the judges of the2013 bench ( differed with the majority judgment). The order dated 28th April 2016 has also been passed by a 3 judges bench headed by Hon’ble Justice Anil R. Dave.
Civil Writ petition may not be Maintainable under Article 32.
17: Presumably the Writ Petition (c) No.261 of 2016 was filed under Article 32 of the Constitution, since it is not a public interest litigation as it is a Civil writ petition, such a petition can be filed only by a person if any of his Fundamental Rights, guaranteed by the Constitution, has been violated or if there is an imminent danger of such violation. It is pertinent to point out that as per the constitutional scheme and the rules framed by the Hon’ble Supreme Court of India and the Hon’ble High Court, the person who approaches the court seeking for a Writ of Mandamus must have a Legally Enforceable Right with the corresponding duty cast on the Government. Under the circumstances it is difficult to comprehend which fundamental right of the “SANKALP CHARITABLE TRUST” had really been infringed. The Notification may at the most be a direction to MCI; that does not confer any right on the trust or on any individual. The order does not indicate who was the “another petitioner” as well as who were the “other Respondents”. May be the MCI and CBSE were the respondents. But all the parties before the court in the Vellore Christian Medical college case should have been at least added as parties and their views should have been heard before passing orders. That was not done. Inasmuch as this was not a public interest litigation it is a decision ’inter-parties’- which will bind only the parties to the proceedings. That is one of the Cardinal Principles of Jurisprudence. The Order would not be binding the ‘Persons not parties’ to the proceedings.
Such a Notification cannot be issued by MCI :
- The Notification dated 21-12 -2010 has been gazetted on 27-12-2010 as “Notification No.MCI-31(1)/2010-Med/49068-In exercise of power conferred by Section 33 of the Indian Medical Council Act,1956………… further amend the “Regulations on Graduate Medical Education ,1997”,. That is, MCI has , with previous sanction of the Central Government, made this regulations. The power to make regulation is granted, generally to carry out the purposes of the Act. The purposes of the Act was enlarged in 1993 by including Ss,10A, 10B and 10C. Section 10A empowers the MCI to make recommendation to the Central Government for granting permission to start a new medical college or new courses of study or to increase the number of seats in a college. S.10C was only a transitory provision; it is no more a live provision.
Sections 10B and 10A of MCI Act are mutually exclusive:
19: Section 10B gives power to the MCI — not to recognise the medical qualification conferred by the Medical institutions under the following 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 shall be a recognised medical qualification for the purposes of the Act.
2). Where any medical college opens a new or higher course of study or training (including a post graduate 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 qualification for the purpose of the Act.
3). Where any medical college increase the 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 admission capacity shall be a recognised 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.
Extent of the power to make Regulations:
20: As stated already Section 33 of the Act confers the power to make Regulations. Without prejudice to the generality of the power conferred under Sub section (6) sub clause (fc) specifically provides that:
Such regulations may provide ‘the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section (3) of Section 10B .
Non- Recognition when? :
21: A careful reading of the above provision would make it clear that the power conferred by Section 10B of the Act, not to recognise a medical qualification granted by any medical institution (Non-Recognition), would, come to play or can be exercised by MCI, only where a student obtains a medical qualification, from a medical college that was established without getting previous permission from the Central Government, or where the qualification was granted to a course for which previous permission was not granted by the Central Government or where a student gets the medical qualification when the college increased the capacity or seat in the college without getting prior permission from the Central Government, in accordance with Section 10A of the Act. The word “except” used in Section 10B means “otherwise than.” That is, the power conferred on the MCI under Section 10B cannot be exercised where the medical college was established or where permission was obtained for the courses or the capacity was increased after duly obtaining prior permission from the Central Government in accordance with Section 10 A of the Act. To put in legal language Section 10A and 10 B are mutually exclusive. Once Section 10A is complied with, then provisions contained in 10B will not and cannot come to play.
Only Universities decide mode of Admission to its Affiliated Colleges:
22: The phrase “a student who has been granted a medical qualification” refers to a student who had joined the course already and completed the studies successfully. The phrase does not mean or include a student who is yet to join the medical course. That is the power to make Regulation at the stage before the completion of medical course is NOT included either in the provisions of Section 10B or of Section 33 of the Act. Therefore the MCI has not been conferred or vested with, the power to regulate admission of students in the medical colleges or institutions. Therefore all the regulations including the requirement of passing NEET for admission to medical and Dental Colleges appears ultravires. Only the Universities have the power to determine the method of admission to its affiliated colleges. Every University is a Statutory and Autonomous body, having its own statutes and Regulations. That cannot be regulated by any other body. As seen above, under the Constitution of India, the power of incorporation and regulation of University is a State subject (Entry 32 List II).Therefore the States alone have the power to determine the mode of admission to the affiliated colleges in the Universities with its territory.
23: The Medical Council of India is only a statutory body. Its powers are circumscribed by the Act. The Regulations can be made only within the scope of the power and with the previous sanction of the Central Government. When a Statuary body exceeds the power conferred by the Act the Courts will hold such Regulations invalid and hence unenforceable. The MCI’s Regulation–making powers, conferred under Section 33 of the Act, do not extend to make regulations for the admission of students to medical colleges. If all these facts are brought to the notice of the Courts, the Courts would give a serious consideration and pass appropriate orders. Courts are the savours of rule of law and the democracy.
– Justice A. K. Rajan