Bombay High Court
Godavari Foundations Dr Ulhas ... vs Medical Council Of India Through ... on 28 July, 2017
Bench: R.M. Borde
1 WP8129.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
WRIT PETITION NO. 8129 OF 2017
Godavari Foundation's
Dr. Ulhas Patil Medical College &
Hospital, Jalgaon Khurd, Jalgaon,
Through its Dean
Dr Narayan Sadashiv Arvikar,
Age 60 years, Occu. Dean,
R/o. As above. Petitioner...
Versus
1. Medical Council of India,
Through its Secretary,
Pocket-14, Sector8,
Dwarka-1, New Delhi-110 077.
2. The Chairman of
Hon'ble Supreme Court Mandated
Oversight Committee,
On Medical Council of India,
2nd Floor, Academic Block,
National Institute of Health and
Family Welfare, Munirka,
New Delhi-110 067.
3. Union of India,
Through Under Secretary,
Ministry of Health and Family Welfare,
Department of Health and Family Welfare,
New Delhi - 110 011.
4. The Commissioner,
CET Cell, Mumbai. Respondents...
..........
Mr V. J. Dixit, Sr. Advocate i/b Mr L. V. Sangit, Adv. for the petitioner
Mr S. K. Kadam, Advocate for respondent No. 1
Mr Bhushan Kulkarni, Advocate for respondent No. 3
Mr M. D. Narwadkar, Advocate for respondent No. 4
.............
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2 WP8129.2017
CORAM : R. M. BORDE &
A. M. DHAVALE, JJ.
DATE : 28TH JULY, 2017.
ORAL JUDGMENT (Per R. M. Borde, J. ) :-
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties and taken up for final disposal at admission
stage.
2. The petitioner is objecting to the Show-Cause Notice issued
by the Medical Council of India dated 26.05.2017, calling upon the
petitioner-institution to show cause as to why the action of
de-recognition of the Medical College operated by the petitioner-
institution shall not be taken. The petitioner also prays for issuance of
directions to the Medical Council of India to accept the compliance
report tendered in pursuance to the interim orders passed by this
Court in the instant petition and grant renewal of permission for the
3rd batch with increase in undergraduate intake of the students from
100 to 150. The petitioner is also seeking directions to the Central
Government to grant permission for the increased intake of students
for undergraduate courses. In view of the deeming provisions of
3 WP8129.2017
Section 10-A(5) of the Indian Medical Council Act, 1956 (herein after
shall be referred to as "IMC Act, 1956"), the petitioner claims that the
college has entitlement to admit 150 students for undergraduate
medical course for the academic year 2017-18.
3. The petitioner-foundation is operating Dr. Ulhas Patil
Medical College & Hospital since April 2008 at Jalgaon. A letter of
permission was accorded by the Government of India for
establishment of a new medical college on 29.09.2008. The Medical
Council of India, in view of communication dated 05.02.2013,
granted recognition/approval for the award of MBBS degree granted
by the Maharashtra University of Health Sciences, Nashik,
Maharashtra, considering the annual intake capacity of the students
quantified at 100. A notification came to be issued by the Central
Government in exercise of powers conferred under sub-section (2) of
Section 11 of the IMC Act, 1956 recognizing the medical qualification
granted by Maharashtra University of Health Sciences, Nashik in
respect of students trained at Dr. Ulhas Patil Medical College, Jalgaon
with annual intake of 100 students per year after December-2012.
The petitioner requested for increasing the intake of the students
from 100 to 150 during the academic year 2015-16 and considering
the request made by the petitioner-Institution, a letter of permission
4 WP8129.2017
was issued by the Government of India on 02.06.2015, permitting
increased intake of MBBS seats from 100 to 150 from academic year
2015-16 u/s 10(A) of the IMC Act, 1956. It is recorded in the letter
of permission that, the permission is accorded initially for a period of
one year and will be renewed on yearly basis subject to the
verification of the achievement of annual targets as indicated in the
scheme and revalidation of performance Bank Guarantee. This
process of renewal of permission will continue till such time the
infrastructures and expansion of hospital facilities are completed as
per norms of Medical Council of India. It is further recorded in the
letter that, next batch of students shall not be admitted unless
renewal of permission is granted by the Central Government. It
further transpires that, during the next academic year i.e. 2016-17,
the increased intake allotted to the college operated by the petitioner-
institution was maintained in view of the letter of permission issued
by Central Government on 31.12.2015. It is recorded in the letter of
permission that the same would be valid for one year for admitting
only one batch of students against increased intake i.e. from 100-150
during the academic session 2016-17 and next batch of students in
MBBS course against increased intake shall be admitted only after
issuance of permission by Central Government. It is recorded in the
letter that admissions made in violation of the above conditions
5 WP8129.2017
would be treated as irregular and action will be initiated under IMC
Act, 1956 and regulations framed thereunder.
4. The petitioner submits that, during the next academic
session 2017-18, a proposal was tendered by the college for renewal
of permission on 15.07.2016. The MCI conducted Pre-PG assessment
and pointed out certain deficiencies in its report. The petitioner
contends that, those deficiencies were removed and compliance
report has already been tendered. There was a second assessment of
the compliance verification carried out on 17.11.2016. In the said
report also, certain deficiencies were noticed and those were
informed to the petitioner-institution. The petitioner contends that,
such of those deficiencies pointed out in the second assessment
compliance verification report were also removed, however, in spite
of removal of deficiencies, a Show-Cause Notice came to be issued on
26.05.2017 by MCI calling upon the petitioner-institution to show-
cause as to why the action of de-recognition of the institute shall not
be initiated. The petitioner approached this Court initially objecting
to the Show-cause Notice issued by the Medical Council of India.
While entertaining the petition, the Division Bench of this Court by
an order dt. 23.06.2017, permitted the petitioner to file reply to the
show-cause notice within a period of one week and also instructed
6 WP8129.2017
the respondents not to take any coercive steps based on the Show-
cause Notice dt. 26.05.2017. The petitioner contends that, a reply to
the show-cause notice has already been tendered in view of the
liberty granted by this Court to the petitioner. It is the contention of
the petitioner that, Medical Council of India has not communicated
anything further and neither the Central Government has transmitted
any communication to the petitioner in response to the proposal
tendered by the institution seeking renewal of the increased intake
permitted for the undergraduate course for the academic year 2017-
18. The petitioner contends that, during preceding two years, the
institution was permitted to admit 150 students, however, during the
current academic year, in the brochure published by the admission
authority the intake of the college is recorded as 100 instead of 150.
It is contended that, the petitioner institution is entitled to admit 150
students since there is no adverse order as yet issued by the Central
Government. It is further contended that, in view of the provisions of
Section 10-A(5) of the IMC Act, 1956, it shall be construed that the
College is deemed to have been accorded permission to admit 150
students i.e. the Central Government shall be deemed to have
permitted the increased intake of the students as was permitted
during the preceding years.
7 WP8129.2017
5. In response to the notice issued by this Court on
23.06.2017, the Central Government has not presented any reply.
Though the Central Government was expected to present the reply,
even after grant of several adjournments, the reply is not
forthcoming. We do not appreciate the inaction of the Central
Government to file reply in the matter specifying stand of Central
Government. It is in fact the responsibility of the Central Government
to tender reply to the contentions raised in the petition and explain
as to why no steps have been taken in response to the proposal
tendered by the institution seeking sanction for increased intake of
the students. It ought to have been considered that the matter relates
to grant of admission to the students and the orders are required to
be passed in time bound manner, however, because of the laxity on
the part of the Central Government, confusion is created not only for
the petitioner but also from amongst the students community who
are desirous of taking admission for the medical courses.
6. The MCI has presented affidavit-in-reply and has stated
therein that the medical college operated by the petitioner-institution
has failed to maintain the minimum infrastructure, teaching faculty,
clinical material and other physical facilities due to which the
Medical Council of India invoked Regulation 8(3)(1)(c) of the
8 WP8129.2017
Establishment of Medical College Regulations, 1999 and issued a
Show-cause Notice vide letter dt. 26.05.2017 to the petitioner-college
directing it to explain as to why the Council should not proceed for
withdrawal of the recognition of courses conducted by the medical
college at undergraduate as well as postgraduate level which are
already recognized under Section 11(2) of the IMC Act, 1956 along
with direction of stoppage of admissions in permitted postgraduate
courses. It is further stated that, the deficiencies were pointed out in
the inspection reports dated 06-07/06.2016, 17.11.2016, 11.01.2017
& 03.05.2017, which according to Medical Council of India, were
grave in nature and same could not be brushed aside in the larger
public interest and also in the interest of the students community. It
is further stated that, the Medical Council of India has conducted
Pre-PG assessment of the petitioner-medical college so as to ascertain
the facilities and has pointed out the deficiencies after conducting
inspection on the dates as specified above and had also forwarded
recommendation to the Central Government not to grant renewal of
the permission for the admission of 3 rd batch of MBBS students
against the increased intake i.e. from 100 to 150 for the academic
session 2017-18. It does appear that, on receipt of the
recommendations from Medical Council of India on 31.01.2017, the
Central Government called upon the petitioner-college to explain as
9 WP8129.2017
regards deficiencies and gave hearing on 03.02.2017. It further
transpires that, on 03.05.2017, inspection was carried out by Medical
Council of India and in pursuance thereof, a report was transmitted
to the Central Government and in pursuance thereto a show-cause
notice came to be issued on 26.05.2017. It further appears, on
perusal of the communication annexed at page 124H to the petition
transmitted by the Under Secretary to the Government of India to the
Asstt. Solicitor General of India on dated __ July, 2017 that there are
no recommendations made by Medical Council of India to the
Ministry for approval or disapproval of the proposal for withdrawal of
recognition for 2017-18 and in absence of the recommendations by
the Medical Council of India, no letter was issued by the Ministry.
The Central Government, it appears, has not taken any decision in
absence of any recommendation from Medical Council of India and is
expecting report from the Medical Council of India. The Medical
Council of India is expected to communicate its opinion to the
Central government so as to facilitate the Central Government to take
appropriate decision in the matter. So far as aspect of issuance of
show-cause notice for the purpose of de-recognition of the petitioner-
medical college is concerned, as has been recorded above, the
petitioner college has already tendered its reply and appropriate
decision has to be taken in that regard by the concerned in
10 WP8129.2017
accordance with provisions of law. We leave the matter for the
consideration of the respondents in that regard and it would be open
for the respondents to take appropriate decision in observance of the
procedure prescribed under the law.
7. So far as the grievance raised by the petitioner in respect of
the failure of the respondents to permit the medical college to admit
the students in accordance with the increased intake as permitted
during preceding two years is concerned, the Central Government
was expected to take appropriate decision in the matter within the
time frame stipulated under the orders of the Supreme Court referred
to in the communication dated ___ July, 2017 annexed at page 124H.
The Central Government, however, has failed to take any decision in
the mater. In the absence of any decision by the Central Government,
it is not permissible for the college to admit the students presuming
sanction of the additional intake. The petitioner institution has
already been permitted to admit 100 students and such information
has already been published in the brochure. There is no dual opinion
that the petitioner-institution is entitled to admit 100 students,
however, for permitting the increased intake of 50 students an
appropriate permission needs to be accorded by the Central
Government. The petitioner contends that, in view of provisions of
11 WP8129.2017
Section 10-A(5) of the IMC Act, 1956, it shall be deemed that the
petitioner has been permitted to admit students considering
increased intake permitted during preceding year. Sub-section (5) of
Section 10-A of IMC Act, 1956 reads thus:
(5) Where, within a period of one year from the date of
submission of the scheme to the Central Government
under sub-section (2), no order passed by the Central
Government has been communicated to the person or
college submitting the scheme, such scheme shall be
deemed to have been approved by the Central
Government in the form in which it had been submitted,
and accordingly, the permission of the Central
Government required under sub-section (1) shall also be
deemed to have been granted.
8. It is the contention of the petitioner that, though the
proposal for permitting the additional intake was tendered on
15.07.2016 and since no communication has been issued by the
Central Government for a period of one year, in view of sub-section
(5) of Section 10-A it shall be deemed that the scheme/proposal has
been approved by the Central Government in the form in which it
had been submitted and accordingly permission of the Central
Government required under Sub-section (1) of section 10-A shall also
be deemed to have been granted.
9. As has been recorded above, since the Central Government
has not come out with any reply and since it is the Central
Government which is the authority under the enactment to decide
12 WP8129.2017
the issue in respect of the increased intake, we deem it appropriate to
leave this aspect for consideration of the Central Government.
Learned Counsel Shri. Kadam appearing on behalf of the Medical
Council of India states that, the argument of the petitioner relying
upon sub-section (5) of Section 10-A of IMC Act, 1956 is not
acceptable and the question of applicability of provisions relating to
grant of the deemed permission is not attracted in the instant matter
since the Central Government has called upon the Medical Council of
India to tender its report in respect of removal of deficiencies by the
petitioner-college. We are not impressed by the submissions made on
behalf of Medical Council of India and according to us, it is
incumbent upon the Central Government to communicate its decision
and in the event of failure to pass an order and to communicate the
same to the person or to the college submitting the scheme, such
scheme shall be deemed to have been permitted by the Central
Government in the form in which it had been submitted. It must be
noted that, after tender of reply by the petitioner-institution, the
Medical Council of India was directed by the Central Government to
review its decision and communicate the same to the Central
Government, however, the Medical Council of India has not
communicated anything to the Central Government which probably
impeded the decision making process of the Central Government. It
13 WP8129.2017
would be open for the Medical Council of India to communicate its
opinion to the Central Government and it shall be communicated
within shortest possible time frame.
10. In the circumstances, we direct the Central Government to
take appropriate decision within a period of ten days from today.
The entitlement of the petitioner to admit additional 50 students for
undergraduate courses, would depend upon the decision of the
Central Government in accordance with Section 10-A of the IMC Act,
1956. In the event of issuance of any adverse order, it would be open
for the petitioner to avail of the alternate remedies available in law.
11. Rule is accordingly made absolute to the extent as specified
above. There shall be no order as to costs.
[ A. M. DHAVALE ] [ R. M. BORDE ]
JUDGE JUDGE
sgp
