REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.    274        OF 2012 (@ SLP (C) No. 27239 of 2011)

MEDICAL COUNCIL OF INDIA … Appellant

Versus

JSS MEDICAL COLLEGE & ANR.  …    Respondents

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Medical  Council  of  India,  aggrieved  by  the  

interim  order  dated  24th August,  2011  passed  by  a  

Division Bench of the Karnataka High Court in Writ  

Petition No. 31587 of 2011 whereby it had permitted  

JSS  Medical  College,  Respondent  No.  1  herein,  to  

increase the seats for MBBS Course from 150 to 200  

for the academic year 2011-2012, has preferred this  

special leave petition.

2. Leave granted.

3. In view of the order which we propose to pass in  

this appeal it is inexpedient to give in detail the  

facts  of  the  case.   Suffice  it  to  say  that  JSS  

Medical College, Respondent No. 1 herein (hereinafter  

referred  to  as  ‘the  College’),  is  recognized  for  

imparting MBBS education with intake capacity of 150  

students.   On  27th of  November,  2010,  the  College  

submitted  an  application  for  increase  of  intake  

capacity for the MBBS Course from the academic year  

2011-2012 from 150 to 250.  The Board of Governors,  

the body to which power has been vested to carry out  

the functions and duties of the Medical Council of  

India  (hereinafter  referred  to  as  ‘the  Board  of  

Governors’) appointed assessor by order dated 23rd of  

February,  2011  to  assess  the  physical  and  other  

teaching facilities available for grant of letter of  

permission for the increase of MBBS seats from 150 to  

250 to the College for the academic year 2011-2012.  

4. In the light of the aforesaid order the assessor  

visited  the  College  and  made  assessment  of  the  

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physical and other teaching facilities available for  

grant of letter of permission for increase of MBBS  

seats from 150 to 250 and submitted its report.  The  

assessment  report  was  considered  by  the  Board  of  

Governors  which  decided  not  to  issue  letter  of  

permission  for  increase  of  seats  as  the  

infrastructure  facilities,  clinical  material  and  

faculty were inadequate.  It also found deficiency in  

equipments and other deficiencies as pointed out in  

the  assessment  report.   Accordingly,  the  Board  of  

Governors by its letter dated 5th of May, 2011 called  

upon the College to submit its response as to why its  

proposal for increase of seats be not disapproved and  

returned.  The College by its letter dated 21st May,  

2011 submitted its response and claimed that it has  

adequate  infrastructure,  clinical  material  and  

teaching facilities to meet the teaching and training  

requirement for the enhanced intake of 250 students  

and, at the same time, wrote that in the event of the  

Board  of  Governors  finding  that  the  same  are  not  

adequate for granting increase of seats to 250, the  

request may be considered for enhanced intake from  

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150 to 200 seats.  The compliance report submitted by  

the  College  along  with  assessment  reports  of  the  

assessor were forwarded by the Board of Governors to  

the assessor by letter dated 1st of June, 2011 for  

their perusal and for carrying out the assessment for  

increase  of  MBBS  seats  from  150  to  250.   It  is  

relevant here to state that the College by its letter  

dated 3rd of June, 2011 wrote to the Coordinator of  

the  assessment  team  “to  revise  the  assessment  for  

increase of MBBS seats from 150 to 200 admissions  

instead  of  250  seats”.   By  the  said  letter  the  

College  claimed  that  it  had  infrastructure  

facilities,  clinical  materials  and  teaching  

facilities  including  the  instruments  for  200  

admissions for MBBS Course.   

5. The claim for increase of seats from 150 to 250  

was considered and the Board of Governors decided “to  

return the applications as disapproved for increase  

of seats from 150 to 250” for the academic year 2011-

2012 by its letter dated 30th of June, 2011.  The  

College by its letter dated 8th of July, 2011 made  

request for reconsideration of increase of seats from  

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150  to  200  inter  alia  stating  that  “the  team  of  

assessors who visited the College on 3rd of June, 2011  

after assessing the seats have not only recommended  

for  continuation  of  150  seats  but  also  have  

recommended  for  additional  50  seats  intake  taking  

into account adequacy of additional facilities, book  

space, equipment and other facilities”.  The Board of  

Governors reconsidered the claim of the College with  

regard to increase of seats in MBBS Course from 150  

seats to 200/250 seats and decided to reiterate its  

earlier decision as the cut of date for issuance of  

letter  of  permission,  i.e.,  30th of  June,  2011  is  

already over.

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6. Aggrieved by the same, the College filed the writ  

petition inter alia praying for quashing the decision  

of the Board of Governors dated 30th of June, 2011 and  

5th of  August,  2011  by  issuance  of  a  writ  in  the  

nature of certiorari or any other appropriate writ  

and further prayed for issuance of a writ in the  

nature of mandamus directing the Medical Council of  

India  for  issuance  of  letter  of  permission  for  

increase of intake in its MBBS Course from 150 to 200  

for the year 2011-2012 as also to admit 200 students.  

By  way  of  interim  relief  the  petitioner  made  the  

following prayer :  

“Pending  disposal  of  the  above  writ  petition,  it  is  prayed  that  this  Hon’ble  Court  may  be  pleased  to  permit  the  petitioner institution to admit to an intake  of 200 students for its MBBS course as per  recommendation of its expert body, subject  to further orders of this Hon’ble Court in  the interest of justice and equity”  

By the order impugned the High Court passed the  

following interim order :

“The petitioner institution is permitted  to increase the intake of MBBS students from  150 to 200 for the academic year 2011-2012.  Medical Council of India is at liberty to  indicate any deficiency if it comes across  for the intake of 200 seats in MBBS for the  academic  year  2011-2012  and  direct  

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compliance of the same within three months  from the receipt of their communication.

This order is subject to final result in  the writ petition”.

7. Mr.  Nidesh  Gupta,  Senior  Advocate  appears  on  

behalf of the appellant whereas Respondent No. 1 is  

represented by Mr. K.K. Venugopal, Senior Advocate.  

To  put  the  record  straight  Senior  Counsel  

representing the parties had addressed us in detail  

and invited us to finally pronounce the judgment on  

all issues.  At one stage we were inclined to do that  

but finding that the present appeal is against an  

interim order and the High Court is yet to finally  

pronounce the judgment on merits, we declined to take  

the final call and intend to decide the validity of  

the interim order only.

8. Power to grant final relief implies within itself  

power  to  grant  interim  relief  unless  it  is  

specifically  prohibited  by  law.   However,  in  the  

facts and circumstances of the case we are of the  

opinion that the High Court erred in permitting the  

increase of the seats by an interim order.  It is not  

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in dispute that the Board of Governors for exercise  

of  its  statutory  power  under  Section  10.A  of  the  

Medial Council of India Act, 1956 has fixed various  

schedules including last date for submission of the  

application for increase in the seats as also the  

date till when the Board of Governors had to take the  

decision.   It  is  an  admitted  position  that  the  

College had made request for increase of seats from  

150 to 250 within the time prescribed.  It had not  

filled application for increase from 150 seats to 200  

seats within the time stipulated but made request for  

increase of 200 seats after the assessor’s report.  

It is not on prescribed format but by means of a  

letter.  By that time the schedule fixed for increase  

of  seats  by  the  Board  of  Governors  had  

already expired.   

9. In view of these facts, following questions arise  

for consideration:

1. Whether or not the application filed by  

the College later on for consideration  

of its claim for the reduced seat of 200  

after  the  expiry  of  period  will  date  

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back  to  the  date  of  original  

application?

2. Whether  or  not  the  application  for  

increase filed after the scheduled date  

is required to be considered?

3. Whether or not the assessors exceeded in  

its jurisdiction to consider the claim  

of  the  College  for  increase  of  200  

seats,  when  undisputedly  they  were  

assigned  the  task  of  assessing  the  

College’s  claim  for  increase  of  

250 seats?

4. Whether or not the Board of Governors  

was right in rejecting the claim of the  

College on the expiry of the outer limit  

by which the decision to increase the  

number of seats was to be taken by it?

5. Whether  or  not  the  High  Court  while  

exercising the power under Article 226  

and  227  of  the  Constitution  of  India  

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could  straightaway  permit  increase  of  

seats or direct for consideration of the  

claim by the competent authority?

10. Without  adverting  to  the  aforesaid  issues  and  

many other issues which may arise for determination,  

the High Court, in our opinion, erred in permitting  

increase  in  seats  by  interim  order.   In  normal  

circumstances the High Court should not issue interim  

order granting permission for increase of the seats.  

High  Court  ought  to  realize  that  granting  such  

permission  by  an  interim  order  has  a  cascading  

effect.   By  virtue  of  such  order  students  are  

admitted as in the present case and though many of  

them had taken the risk knowingly but few may be  

ignorant.  In most of such cases when finally the  

issue is decided against the College the welfare and  

plight of the students are ultimately projected to  

arouse sympathy of the Court.  It results in very  

awkward  and  difficult  situation.   If  on  ultimate  

analysis it is found that the College’s claim for  

increase of seats is untenable, in such an event the  

admission of students with reference to the increased  

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seats shall be illegal.   We cannot imagine anything  

more destructive of the rule of law than a direction  

by the court to allow continuance of such students,  

whose  admissions  is  found  illegal  in  the  ultimate  

analysis.  This Court is entrusted with the task to  

administer law and uphold its majesty.  Courts cannot  

by its fiat increase the seats, a task entrusted to  

the Board of Governors and that too by interim order.  

In a matter like the present one, decisions on issues  

have to be addressed at the interlocutory stage and  

they  can  not  be  deferred  or  dictated  later  when  

serious complications might ensue from the interim  

order itself.  There are large number of authorities  

which take this view and instead of burdening this  

judgment  with  all  those  authorities  it  would  be  

sufficient to refer to a three Judge Bench decision  

of this Court in the case of Medical Council of India  

v. Rajiv Gandhi University of Health Sciences, (2004)  

6 SCC 76, in which it has been held as follows:

“14. In  the  normal  circumstances,  the  High  Court  ought  not  to  issue  an  interim  order  when  for  the  earlier  year  itself  permission  had  not  been  granted  by  the  Council.  Indeed,  by  grant  of  such  interim  

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orders  students  who  have  been  admitted  in  such  institutions  would  be  put  to  serious  jeopardy, apart from the fact whether such  institutions could run the medical college  without  following  the  law.  Therefore,  we  make it clear that the High Court ought not  to grant such interim orders in any of the  cases  where  the  Council  has  not  granted  permission in terms of Section 10-A of the  Medical Council Act. If interim orders are  granted  to  those  institutions  which  have  been  established  without  fulfilling  the  prescribed conditions to admit students, it  will  lead  to  serious  jeopardy  to  the  students admitted in these institutions.”

11. For all these reasons we are of the opinion that  

the  interim  order  passed  by  the  High  Court  is  

unsustainable.  Any observation made by us in this  

judgment is for disposal of the present appeal and  

shall have no bearing on the merits of the case.  

Further, as the matter pertains to increase in seats  

in educational institution, we deem it expedient that  

the High Court considers and disposes of the case on  

merit expeditiously.   

12. Resultantly, we allow this appeal, set aside the  

impugned interim order of the High Court with the  

observation aforesaid.  However, there shall be no  

order as to costs.

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………………………………………………………….J                  (H.L. DATTU)

………………………………………………………….J                             (CHANDRAMAULI KR PRASAD)

New Delhi, January 11, 2012.

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