Azeezia Institute Of Medical ... vs Union Of India & Anr.
2010 Latest Caselaw 3507 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 28th July, 2010.

+                           W.P.(C) No.4901/2010

%

AZEEZIA INSTITUTE OF MEDICAL
SCIENCES & RESEARCH                        ..... Petitioner
                 Through: Mr. Rajiv Nayar & Mr. Sandeep
                          Sethi, Sr. Advocates with Mr. Manik
                          Dogra & Mr. Harris Beeran,
                          Advocates

                                      Versus

UNION OF INDIA & ANR.                                     ..... Respondents
                  Through:                Mr. Neeraj Chaudhari, CGSC for R-1.
                                          Mr. A. Sharan, Sr. Advocate with Mr.
                                          Amit Kumar & Mr. Somesh Chandra
                                          Jha, Advocates for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The respondent no.1 Union of India (UOI) in response to the proposal

for setting up of a new Medical College in the name and style of the

petitioner, vide its letter dated 17th September, 2008, in exercise of powers

under Section 10A of the Indian Medical Council Act, 1956, issued a Letter

of Intent for establishment of the new Medical College at Kollam, Kerala

with an annual intake of 100 students. The said Letter of Intent was subject

to fulfillment of the conditions mentioned therein. Vide subsequent letter

dated 23rd September, 2008 of the respondent no.1 UOI, the establishment of

the Medical College in the name and style of the petitioner was approved,

initially for a period of one year with the annual intake of 100 students with

effect from the academic year 2008-09 and to be renewed on yearly basis on

verification of achievement of annual targets set out in the project report. It

was also mentioned in the approval letter that such process of annual

renewal of permission will continue till such time the establishment of the

Medical College and expansion of hospital facilities are completed as per

norms of Medical Council of India (MCI). It was yet further mentioned in

the said approval letter that the petitioner College shall apply to the MCI for

renewal of permission well before the commencement of the next academic

session and that while applying for such approval, the achievement in terms

of infrastructure, staff and equipment as spelt out in the time bound action

plan and as required by MCI norms should be indicated. The petitioner was

also prohibited from admitting the next batch of students unless renewal of

permission was so granted.

2. The respondent no.1 UOI vide its letter dated 1 st July, 2009 conveyed

to the petitioner the approval for renewal of permission for admission of

second batch of 100 students for the academic year 2009-10.

3. It is the case of the petitioner that it similarly applied for renewal for

the academic year 2010-11 and that though the respondent no.2 MCI

conducted various inspections in the months of January & March, 2010 for

grant of such renewal and further that though the petitioner College

submitted compliance reports after each of such inspections, approval was

not granted; on the contrary, the College of the petitioner was again

inspected on 22nd and 23rd June, 2010 but no communication was sent to it

thereafter; that since the cut-off date of 15th July, 2010 was fast approaching,

the representatives of the petitioner travelled to Delhi on 14th July, 2010 and

were ultimately on 18th July, 2010 informed that the Board of Governors in

Supersession of MCI had vide its letter dated 15th July, 2010 rejected the

application of the petitioner College for renewal of permission for admission

of the third batch of students into the College for the academic year 2010-11.

4. The petitioner has challenged the said letter dated 15th July, 2010 in

this writ petition inter alia on two grounds. Firstly, it is contended that no

opportunity of hearing or to make up the deficiencies was given to the

petitioner after the inspection of 22nd and 23rd June, 2010 and before the

letter dated 15th July, 2010 refusing permission. Secondly, the grounds on

which permission has been denied are disputed. It is contended that the said

grounds are contrary to the report of inspection on 22nd and 23rd June, 2010

itself. It is also stated that the deficiencies, if any, remaining and as pointed

out in the letter dated 15th July, 2010 were rectified by the petitioner as

communicated in the letter dated 20th July, 2010 of the petitioner. The

petitioner thus preferred this petition claiming the relief either of granting

renewal of permission to the petitioner or, in the alternative of directing the

Board of Governors in Supersession of MCI (respondent no.2) to conduct

inspection of the petitioner College and to thereafter if so satisfied grant the

renewal of permission as aforesaid to the petitioner.

5. The writ petition came up before this Court first on 23rd July, 2010.

Though the respondents were represented on that date also on advance

notice but without proper instructions, as transpired during the hearing held

on that date; the matter was adjourned to today and the respondents were

directed to bring the entire record pertaining to the petitioner College.

6. The senior counsel for the respondent Board of Governors in

Supersession of MCI has informed that the entire record pertaining to the

petitioner has been perused and has been brought. Though no counter

affidavit has been filed but in view of the nature of the reliefs claimed,

which would become infructuous on further delay and further since on

hearing it was not felt that any counter affidavit was required, the counsels

for the parties have been heard on the writ petition itself.

7. I am quite clear that in the present state of affairs, the Court cannot

grant the first relief of grant of renewal of permission to the petitioner. The

senior counsel for the respondent Board of Governors has rightly contended

that the said function has statutorily been vested in the MCI / Board of

Governors and this Court cannot appropriate the task to itself. The role of

this Court is confined only to judicial review of the action taken by the MCI

/ Board of Governors and that too primarily as to the decision making

process. To be fair, the senior counsel for the petitioner also did not press

for the said relief and confined the arguments to the grant of opportunity of

being heard and or re-inspection. When a statue confers a discretionary

power to be exercised by competent authority, the Court cannot direct the

competent authority to exercise discretion in a particular manner. The court

can always direct the competent authority to exercise discretion vested in it

in accordance with law. (see Suresh Estates Pvt. Ltd. Vs. Municipal

Corporation of Greater Mumbai (2009) 3 SCC 186).

8. The senior counsel for the respondent no.2 Board of Governors in

Supersession of MCI has in pursuance to the directions on the last date

contended that it is not as if the petitioner College has been condemned

unheard. It is informed that inspection of the petitioner College was carried

out by the MCI on 21st & 22nd January, 2010, 22nd March, 2010 as well as on

30th April, 2010 and after each of the said inspections, notices dated 6th

February, 2010, 5th April, 2010 & 13th May, 2010 respectively were issued

to the petitioner pointing out the deficiencies and owing whereto the MCI

informed the petitioner College that the MCI could not recommend to the

Government of India the renewal of permission for admission for the current

academic year to the petitioner. It is contended that the petitioner has

suppressed the said documents from this Court. Copies of the said letters are

handed over in the Court.

While it is correct that the said letters have not been filed by the petitioner

before this Court but it cannot really be said that the petitioner has

suppressed the said factum. As aforesaid, in Para 6 of the petition itself the

petitioner has mentioned of the said inspections and has stated that after each

of the aforesaid letters, the petitioner College had reported compliance of

deficiencies mentioned in each to the MCI.

9. It was enquired from the senior counsel for the MCI as to why if the

MCI was not satisfied of the petitioner College meeting the targets for the

current academic year, was the petitioner not informed of the refusal of

renewal / permission then only and as to why the subsequent inspection of

22nd and 23rd June, 2010 was conducted. The senior counsel for the

respondent no.2 Board of Governors in Supersession of MCI replies that the

same was necessitated owing to the unfortunate events in May/June, 2010 of

the Chairman of MCI having been removed on corruption charges and

leading ultimately to supersession of MCI. Attention is invited to the Indian

Medical Council (Amendment) Ordinance, 2010 published in the Gazette of

15th May, 2010 superseding of MCI and appointing the Board of Governors

to exercise the powers and functions of MCI under the Indian Medical

Council Act. The said Ordinance also confers on the said Board of

Governors the powers of the Central Government under Section 10A of the

Indian Medical Council Act. The senior counsel for the Board of

Governors of MCI contends that in the face of loss of faith in the erstwhile

MCI, the Board of Governors decided to re-inspect the College of the

petitioner as also other Colleges, rather than rely upon the inspections and

notices issued earlier by the MCI and it is for this reason that the inspection

of 22nd and 23rd June, 2010 was conducted. The senior counsel further

contends that the petitioner has wrongly averred that it learnt of the refusal

of renewal / permission only on 18th July, 2010. It is stated that the report of

inspection on 22nd and 23rd June, 2010 was put on the website on 30th June,

2010.

However, in my view the same would be immaterial. Though the inspection

team stated to be comprising of eminent heads of department of reputed

Medical Colleges has in the report mentioned various deficiencies in the

petitioner College but the fact remains that the same still did not constitute

the refusal of renewal/permission. The inspection team was / is not the final

authority for granting or refusing the permission for renewal. The said

power, pursuant to the Ordinance aforesaid, vested in the Board of

Governors only and the Board of Governors admittedly for the first time

vide letter dated 15th July, 2010 (supra) only took a decision in that regard.

10. The Establishment of New Medical Colleges, Opening of Higher

Courses of Study and Increase of Admission Capacity in Medical Colleges

Regulations, 1993 govern the grant of permission to set up a new Medical

College. It is provided therein that the permission to establish a new College

and admit students will be granted initially for a period of one year and will

be renewed on yearly basis subject to verification of the achievements of

annual targets and re-validation of the Performance Bank Guarantees; this

process of renewal of permission is to continue till such time the

establishment of the Medical College and expansion of hospital facilities is

completed and a formal recognition of the Medical College granted. It is

also provided that further admissions are liable to be stopped at any stage

unless the requirements of various steps for development are to the

satisfaction of MCI.

11. From the aforesaid, it transpires that the test to be applied at the time

of renewal of permission is only of achievement of annual targets. There

does not appear to be any power to review the initial permission granted for

setting up the Medical College.

12. It was enquired from the senior counsel for the petitioner as to

whether the Act or the Regulations provide for any opportunity of hearing to

be granted or of deficiency notice to be issued before refusing permission for

renewal. The senior counsel for the petitioner besides contending that such

an opportunity is now an important ingredient of the principles of natural

justice by which MCI is bound, invited attention to the proviso to Section

10A(4) and to Section 3B(b)(ii) inserted in the MCI Act vide Ordinance

aforesaid. However, the said provisions concern giving of an opportunity of

being heard before disapproving a scheme for setting up of a new Medical

College. The senior counsel for the petitioner contends that the refusal of

renewal of permission tantamounts to refusal of permission to set up a

Medical College.

I do not agree with the same. The refusal of renewal does not tantamount to

refusal of permission to set up a Medical College. The only effect of refusal

of renewal is to disable the petitioner College from admitting students in the

current academic session. If the petitioner College is able to satisfy the MCI

/ Board of Governors that it has achieved the targets, it may be permitted to

admit students in the next academic year and so proceed towards

recognition.

However, there is merit in the contention of the petitioner that the

opportunity of being heard is inbuilt and has to be necessarily granted in

compliance of the principles of natural justice. Naturally, the refusal of

renewal has serious repercussions on the Medical College and may also lead

ultimately to refusal of permission to set up a Medical College. Further,

such refusal is dependent upon the assessment to be made by the MCI /

Board of Governors of the achievement of targets; the possibility of a

misconception / misunderstanding in such assessment, capable of being

explained cannot be ruled out. It is well nigh possible that persons

authorized by the MCI / Board of Governors to inspect make a mistake

either in observing or in reporting or that the MCI / Board of Governors

make a mistake in understanding of the said report. Even otherwise, some

deficiencies are of technical or trivial nature capable of being rectified on

being given notice. Thus it has to be necessarily held that MCI / Board of

Governors before refusing renewal are required to give notice to the College

which has been issued formal permission to set up a Medical College.

13. Faced with the aforesaid, the senior counsel for the Board of

Governors in Supersession of MCI contends that such opportunity was given

to the petitioner vide notices dated 6th February, 2010, 5th April, 2010 and

13th May, 2010 (supra) by the erstwhile MCI. It is contended that such

opportunity cannot be given ad infinitum.

Though notices were given but the enquiry initiated by the erstwhile MCI

was not continued by the Board of Governors. Rather, the Board of

Governors abandoned the enquiry initiated by the erstwhile MCI and did not

even choose to proceed on the basis of inspections done by the MCI and

instead chose to carry out their own inspection. The Board of Governors did

not choose to proceed from the step where left by MCI. Had it been so, the

Board of Governors was well entitled to take advantage of the notices /

opportunity given by MCI. However, having chosen to proceed afresh, the

Board of Governors cannot rely on the earlier notices and were required to

give their own notice. It thus has to be necessarily held that the action of the

Board of Governors of refusing renewal vide letter dated 15 th July, 2010 on

the basis of inspection of 22nd and 23rd June, 2010 and without giving any

deficiency notice or opportunity of hearing to the petitioner is bad in law and

cannot be sustained.

14. The senior counsel for the Board of Governors then contends that the

petitioner has also concealed from this Court, the notice dated 7th July, 2010

issued by the Board of Governors to the petitioner with respect to the alleged

misrepresentation detected during the inspection on 22nd and 23rd June, 2010.

It is contended that during the said inspection, the petitioner was found to be

employing three faculty members who were also shown as faculty members

in other Colleges seeking similar permissions/renewals. It is urged that the

same constitutes misrepresentation and on the basis whereof the petitioner

can be disqualified for a period of two years. Copy of one such notice and

reply of the petitioner thereto was handed over in the Court.

15. At the outset, I may state that though the petitioner has not filed the

said documents also before this Court but has in para 19 (ix) of the writ

petition referred to the same. Though the misrepresentation as aforesaid

alleged can disqualify the petitioner for two years but the fact remains that

no order of disqualification is shown or argued to have been made. Only the

show cause notices have been issued to the petitioner and to which reply

dated 8th July, 2010 was submitted by the petitioner. The Board of

Governors while refusing the renewal to the petitioner College vide letter

dated 15th July, 2010 did not refuse the same on the said ground of

misrepresentation. The refusal of renewal cannot be justified before this

Court on a ground not taken in the order. If at all, the Board of Governors

remains entitled to take a decision on the show cause notice issued; however

that matter would be distinct from the matter under consideration. Without

the Board of Governors till now holding the petitioner guilty of

misrepresentation or taking a decision till now on the show cause notice

issued, this Court cannot deny the relief to the petitioner, if otherwise found

entitled to, on such grounds.

16. I have also perused the documents to prima facie satisfy myself

whether any possibility, of the petitioner on opportunity being granted, being

able to satisfy the Board of Governors exists or not; inasmuch as it was felt

that if the petitioner is found to have no case whatsoever, the relief of re-

inspection / opportunity of hearing need not be granted.

17. The factual matrix with respect to the aforesaid enquiry is lengthy and

it is not deemed appropriate to burden this judgment with the same. All that

can be said is that there are areas where after considering the contentions in

the communication dated 20th July, 2010 (supra) of the petitioner there is

need for the Board of Governors to decide whether the deficiencies pointed

out exist or not and or as to whether they stand removed. The senior counsel

for the respondent Board of Governors has in this regard pointed to the same

letter, in several paragraphs whereof it is contended that the petitioner has

admitted the deficiencies. While it is so, but the petitioner College has also

stated that upon the same being pointed out in the letter dated 15 th July, 2010

the same have been rectified. I have already held above that such deficiency

notice is required to be given and opportunity to explain and / or rectify the

deficiencies capable of rectification to be given. The same was admittedly

not given pursuant to the inspection of 22nd and 23rd June, 2010 and prior to

the refusal on 15th July, 2010.

18. The next major controversy revolves around the possibility now, of

granting opportunity or of re-inspection. The senior counsel for the Board of

Governors urges that the Apex Court in Mridul Dhar Vs. Union of India

(2005) 2 SCC 65 has laid down the schedule for admission. It is urged that

as per the said schedule, the letter of permission for establishment of a new

Medical College (and the date in which respect is stated to apply to letter of

renewal also) to be issued by 15th July of each year and first round of the

admission process to be completed by 25th July. The senior counsel for the

petitioner rebuts by contending that in the present case, the Board of

Governors are themselves at fault, having carried out the inspection for

renewal, required to be undertaken much earlier, only on 22nd and 23rd June,

2010 and intimation of refusal having been given vide letter dated 15th July,

2010 only. It is further contended that the Board of Governors have

themselves extended the date from 15th June, 2010 to 15th July, 2010. It is

further urged that the aforesaid date do not prevent the Courts from giving

directions for extension thereof. Attention in this regard is invited to the

order dated 13th August, 2009 of the Apex court in WP(C) No.215/2009

titled Muthukumaran Educational Trust Vs. UOI where the Apex Court

directed the MCI to conduct inspection of the Colleges and to give

recommendation to the UOI, after the prescribed date and also to the order

dated 29th April, 2010 of this Court in WP(C) No.2528/2010 also directing

inspection after the prescribed dates.

19. The senior counsel for the Board of Governors has also suggested that

the delays occurred owing to the unfortunate events in the MCI leading to

supersession as aforesaid thereof. However, the MCI for the reason of its

own state of affairs cannot prejudice the petitioner. If owing to the

happenings in the MCI, the MCI was unable to act within time, it cannot on

the basis thereof deprive the petitioner of hearing if otherwise entitled to.

20. I have also weighed the equities. Though it is easy to suggest that the

petitioner can satisfy the MCI / Board of Governors of having met the

targets and apply for renewal for the next academic year but the fact remains

that the same would lead to a break in the life of petitioner academic

Institution. Such gap years are not good particularly for an educational

Institution. Moreover the petitioner is an unaided educational Institution. It

has incurred expenditure on infrastructure and on faculty on the premise of

continuous running of academic years. Such a gap can play havoc with the

financial health of the Institution and will definitely also affect the students

already admitted in the Institution. It can similarly also affect the hospital

attached to such Medical College. Such hospital ultimately will have no

Resident Doctors from the Medical College against the gap year.

21. This Court is not expressing any view on whether the permission for

renewal has to be granted or not. All that this Court requires the Board of

Governors in Supersession of MCI to do is to, before refusing renewal to the

petitioner, hear the petitioner and verify whether the deficiencies pointed out

in the letter dated 15th July, 2010 have been rectified or not as contended by

the petitioner. If the said deficiencies have been rectified and if after hearing

the petitioner the Board of Governors is satisfied that the petitioner has met

the targets required to be met, it would be unjust to deprive the petitioner

College of admissions for the current year, thereby marring the reputation of

the petitioner for the ensuing years also. The petitioner has stated that the

delays even if any would not be fatal and it is not as if the exercise will be an

exercise in futility. It is contended that the State Government and other

allocating agencies have already allocated students for admission to the

petitioner College and if the petitioner succeeds in satisfying the Board of

Governors, it would be able to run the current academic year. It is also

stated that in any case, the process of admission goes on till 30th September,

2010. There is no serious challenge to the said arguments.

22. The petition is therefore allowed in aforesaid terms. The respondent

Board of Governors in Supersession of MCI is directed to grant an

opportunity of being heard to the petitioner and if necessary to inspect the

College, attached hospital and other records, if any, of the petitioner and to

thereafter take a decision as to whether the petitioner is entitled to renewal of

permission for the current academic year or not. Axiomatically, the order

dated 15th July, 2010 refusing such renewal is set aside. Considering the

time constraints, the respondent Board of Governors to undertake the

aforesaid exercise as soon as possible and in any case well before the time

available for admission for the current academic year.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th July, 2010 gsr