Delhi High Court
Tagore Medical College And ... vs Board Aof Governors In ... on 11 September, 2012
Author: G. S. Sistani
46 $~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4491/2012
% Judgment dated 11.09.2012
TAGORE MEDICAL COLLEGE AND HOSPITAL ..... Petitioner
Through: Mr. Amit S. Chadha, Sr. Adv. with Mr. Kunal,
Ms.Jaikriti S. Jadeja, Mr.K.V. Babu and
Mr.Balaji Srinivasan, Advocates
versus
BOARD AOF GOVERNORS IN SUPERSESSION OF
MEDICAL COUNCIL OF INDIA ..... Respondent
Through: Mr. Ashish Kumar and Mr. Ankit, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. The petitioner has approached this Court seeking a writ of mandamus to
quash the impugned order dated 28.6.2012 by which the grant of renewal
of the petitioner institute has been rejected. The petitioner also seeks a
writ of mandamus directing respondent to grant second renewal for
admission of its third batch of 150 MBBS students for the academic year
2012-2013.
2. It is the case of the petitioner that the order dated 28.6.2012 passed by
respondent, rejecting the grant of renewal of petitioner institute, is illegal,
arbitrary and has been passed without any application of mind.
3. According to the petition, the petitioner institute was established in the
year 2010 under Section 10A of the Indian Medical Council Act, 1956.
The petitioner institute has been affiliated to Dr.M.G.R. Medical
University, Chinnai, and 65% of the seats in the petitioner institute is
filled up by the Government of Tamil Nadu through counseling and the
remaining 35% of the seats in the petitioner institute is filled up by the
Consortium monitored by a retired Judge of High Court of Madras. The
petitioner institute had applied for the first renewal for the academic year
2011-2012 and the assessment report dated 28.2.2011 for the second batch
of 150 admission was made in favour of the petitioner. The first renewal
of admission for the second batch of 150 MBBS students for the academic
year 2011-2012 was accorded by the Board of Governors on 28.6.2011.
The petitioner applied to the respondent for the second renewal for
admission of third batch of 150 students for the academic year 2012-2013
on 22.12.2011. Respondent vide letter dated 13.2.2012 appointed
Inspectors for assessment of the physical and other teaching facilities for
renewal. After inspection respondent issued an assessment report dated
17/18.2.2012. After a gap of three months the respondent issued a
deficiency report dated 26.5.2012 wherein the following deficiencies were
pointed out:
"1. Hostel Accommodation is available only for 336 students
instead of 339 students.
2. There is shortage of one bed in Psychiatry.
3. There is shortage of 02 labs in Physiology.
4. No Mess & Accommodation facility in RHTC.
5. Information of regarding staff, nurses, students and residents
contradictory in form & Assessor‟s Report.
6. Other deficiencies as indicated in the assessment report."
4. It is the case of the petitioner that the above deficiencies were imaginary
as the petitioner has all the facilities as per the applicable norms and the
assessor‟s form did not have any column stating requirements for quarters
of staff and students and hence the information was not entered into for
the assessment. As required the petitioner institute submitted a
compliance/clarification report in respect of the said deficiencies on
2.6.2012. A copy of the letter dated 2.6.2012 was handed over in person
on 4.6.2012. Subsequently terms of reference were issued by respondent
to two Inspectors to verify the deficiencies raised in the earlier assessment
dated 17th and 18th February, 2012. The letter containing the terms of
reference was handed over by the Inspectors on 16.6.2012, when a
surprise inspection was undertaken by the Assessors. Consequent to the
inspection a compliance verification inspection report was issued by
respondent on 26.6.2012. As per the compliance verification assessment
report fresh deficiencies were pointed out including deficiencies in size of
rooms in the boy‟s and girl‟s hostel; accommodation available for
teaching staff quarters was short by two apartments; accommodation for
nursing staff short by 16; there was no provision for cooler/fans in
patients‟ waiting area; inadequate OPD area; deficiency of the faculty in
the General Medicine Department; ICU, RICU, CICU, GICTU and SICU
were not being fully equipped. A detailed reply to the report was
submitted by the petitioner on 27.6.2012 wherein the deficiencies were
clarified and explained by the petitioner. Being dissatisfied with the
clarification so rendered by the petitioner, the impugned order dated
29.6.2012 has been passed by the respondent.
5. Aggrieved by the order of rejection, the petitioner filed W.P.(C)
3845/2012. Notice was issued. Subsequently the petitioner sought to
withdraw the writ petition in view of the judgment passed by the Supreme
Court in the case of Priya Gupta v. State of Chattisgarh & Ors, C.A.
4318-19/2012, wherein it has been held that the last date for Medical
Council of India to give recommendation to the Central Government for
renewal of permission for fresh admissions shall be 15.6.2012 and the last
date for Central Government to issue letter of permission will be
15.7.2012. As prayed the said writ petition was dismissed on 10.7.2012.
The petitioner thereafter approached the Supreme Court of India by filing
W.P.No.280/2012. The Supreme Court of India directed the petitioner to
approach the High Court, which has led to the filing of the present writ
petition, which was listed on 30.7.2012. Subsequently the petitioner filed
CM 10062/2012 seeking leave of this Court to place on record additional
grounds.
6. It is submitted by Mr.Amit S. Chadha, learned senior counsel for the
petitioner, that the grant of second renewal has been rejected for the
reasons which were not part of the assessment report. The order of
rejection has been passed without application of mind. The impugned
order is casual in nature and in violation of the very object of providing
annual renewal of permission and would cause serious disruption in the
functioning of the petitioner institute. It is strongly urged before this Court
by Mr.Chadha that the respondent has violated the principles of natural
justice as the compliance verification assessment report which forms the
basis of rejection was not supplied to the petitioner. It has been further
urged before this Court that the order of rejection is based on irrelevant
material that is the compliance verification assessment report, which is
not an assessment report. It is next contended by Mr.Chadha that pursuant
to the application for second renewal for admission of third batch of 150
students respondent appointed three Professors as Assessors for physical
assessment of the college premises on 13.2.2012. Relying on the
Assessors guide learned senior counsel for the petitioner submits that four
Professors are required to carry out inspection for establishment of a new
medical college/increase intake of 200/250 and for recognition while three
Professors are required for all other assessments. Attention of this court is
drawn to the assessment report pursuant to the inspection carried out on
17th and 18th February, 2012, wherein no deficiencies were pointed out
except that there was non-availability of CT Scan which according to the
petitioner is required only after fourth renewal. It is further contended by
learned senior counsel for the petitioner that on 26.5.2012 after a gap of
three months the respondents issued a deficiency report pointing out six
deficiencies.
7. Learned counsel for the petitioner submits that although six deficiencies
were pointed out none of the six deficiencies have been considered for the
ultimate rejection by the impugned order of 28.6.2012. On 2.6.2012
petitioner submitted a compliance report to the respondent with respect to
the deficiency report of 26.5.2012. In June, 2012, two Professors as
against the requirement of three Professors, as per the MCI Assessor‟s
Guide, were appointed as per the terms of reference therein to verify the
compliance of deficiencies raised in the assessment report dated 17th and
18th February, 2012 and the compliance verification assessment report of
16.6.2012. According to the petitioner this communication pointed out ten
fresh deficiencies and did not make mention of earlier six deficiencies
which would mean that the respondent was satisfied that the earlier
deficiencies stood cured.
8. It is the case of the petitioner that compliance verification assessment
report was not supplied to the petitioner, however, a personal hearing was
fixed on 28.6.2012.
9. Learned senior counsel for the petitioner submits that reliance by the
Board of Governors in the impugned order on the compliance verification
assessment report is misplaced for the reason that it was not an assessment
report. Even otherwise the compliance verification assessment report was
only to verify the compliance of deficiencies pointed out in the Assessors
report. Senior counsel further submits that there is a clear violation of the
mandate by the assessors, which was only limited to verify whether the
compliance had been made of the earlier deficiencies and their report
could not have become a fresh assessment report since the Assessors
report has to be on the basis of inspection by three Professors and not by
two professors, as per the Assessors guide. Elaborating his arguments
further that no reliance can be placed on the report dated 03.07.2012,
Mr.Chadha contends that the Assessors report is to be signed by the
Dean/Principal as per the Assessors Guide of MCI and the report dated
17th and 18th February, 2012 was signed in the case of the petitioner,
however, the compliance verification assessment report does not bear the
signature of Dean/Principal on each page. It is also alleged that no copy of
the compliance verification assessment report dated 16.6.2012 was served
on the petitioner for compliance prior to passing of the impugned order
dated 28.6.2012. It is also submitted that the petitioner received a physical
copy of the communication dated 26.6.2012 along with the copy of the
compliance verification assessment report on 3.7.2012, which is not
denied by the respondent. It is also contended that in the absence of the
report the petitioner was put to a disadvantage as no time was available to
the petitioner to either render an explanation or to comply with the
deficiencies. It is next submitted that the object of timely completion of
inspection and verification process is to give adequate and reasonable
time to the colleges/institutions to cure the deficiencies or to render its
explanation. Besides the object of annual renewal of the premises is to
ensure fulfillment of requirements in a gradual manner and not to cause
any disruption. Reliance is placed by the senior counsel for the petitioner
in the case of Priyadarshini Dental College and Hospital v. Union of
India & Others, reported at (2011) 4 SCC 623, more particularly paras 23
and 25, which read as under:
"23. In all these cases, the petitioners, who were applicants for
renewal were existing dental colleges, were functioning for
three or four years and each college had admitted
hundreds of students either directly or through State
Government allotment. The colleges had the benefit of initial
permission and several renewals of permission. Refusal of renewal
of permission in such cases should not be abrupt nor for
insignificant or technical violations. Nor should such applications
be dealt in a casual manner, by either granting less than a
week for setting right the `deficiencies' or not granting
an effective hearing before refusal. The entire process of
verification and inspection relating to renewal of
permission, should be done well in time so that such
existing colleges have adequate and reasonable time to set right the
deficiencies or offer explanations to the deficiencies. The object of
providing for annual renewal of permissions for four years, is
to ensure that the infrastructural and faculty requirements
are fulfilled in a gradual manner, and not to cause disruption.
24. In the context of what has happened in these cases,
it is necessary to emphasize the distinction between the
applications for fresh permissions and applications for renewal of
permissions. They require distinct time schedules. The process of
decision making under the Regulations, for grant of fresh
or initial permission for establishment of new dental colleges
is exhaustive and elaborate, when compared to the process of
decision making in regard to grant of renewal of permission for the
four subsequent years. Before grant of initial grant of permission,
the DCI and Central Government are required to consider the
following aspects : whether the institution would be in a position to
offer the minimum standards of dental education in conformity with
the Act and the Regulations; whether the institution has
adequate resources; whether the institution has provided or
will provide within the time-limit specified in the scheme,
necessary staff, equipment, accommodation, training and
other facilities to ensure proper functioning of the institution;
whether the institution has provided or would provide within the
time-limit specified in the scheme, adequate hospital facilities;
whether faculty having recognized dental qualifications and
personnel in the field of practice of dentistry will be
available to impart proper training for the students; and whether
other factors prescribed by the Regulations have been complied. On
the other hand, for the purpose of grant of renewal of permission,
DCI has to make recommendations by considering only
whether the prescribed faculty and infrastructure are
available.
25. The need for renewal of permission emanates from the fact that
a newly established college is not required to have in
place, full complement of the teaching faculty and
complete infrastructure in the first year itself. This is
because, during the first year, the college will be
catering only to a limited number of first year students.
During the second, third and fourth and fifth years, the
student strength will increase. If the permitted intake is 100, usually
there will be 100 students in the first year, 200 students in the
second year, 300 students in the third year, 400 students in the
fourth year and 500 students in the fifth year. Thereafter, the
strength may remain constant. As the strength increases
gradually every year, correspondingly the infrastructure and faculty
will have to be increased."
10. It is further submitted by learned senior counsel for the petitioner that the
impugned order dated 28.6.2012 has primarily been passed on account of
deficiency in faculty and deficiency in clinical material. It is argued
before this Court that none of the above two reasons form a part of the
assessment report dated 17th and 18th February, 2012, or the deficiency
report of 26.5.2012. Although a mention was made in the show cause
notice dated 26.6.2012 of gross deficiency in faculty of General Medicine
and General Surgery, however, in the reply of 27.6.2012 an affidavit was
submitted in respect of the Department of General Medicine and General
Surgery. Reliance is also placed by learned senior counsel for the
petitioner on the application, being CM 10062/2012, filed by the
petitioner to raise additional grounds wherein the issue with regard to
deficiency in faculty and issue with regard to General Medicine
Department have been addressed. The names, designation, date of
appointment, experience at petitioner institute have been disclosed.
Similar details have been furnished by the petitioner with regard to the
General Surgery Department. Details of joining report, salary certificate,
vouchers of June 2012, identity cards have been annexed along with the
application. As far as the deficiency in the clinical material is concerned,
it is explained that the same was never found to be deficient even as per
the first assessment report dated 17th and 18th February, 2012, as also in
the deficiency report dated 26.5.2012 and, thus, the subsequent finding of
deficiency is contrary to the respondent‟s earlier assessment. The
explanation rendered for various shortages, learned senior counsel for the
petitioner submits that Assessors carried out inspection only on the
ground floor and the first floor whereas each floor consists of several
departments and wards in the second floor, General Medicine Ward and in
the third floor General Surgery Ward is located. The Assessor did not
inspect the hospital as well as the institute on 16.6.2012. Copy of the log
book for the said date has been filed along with the application in support
of the plea that perusal of the log book would show that individual
Clinical Material was available on the particular date. It is also contended
that the waiting area of the OPD is 4099 sq. ft. and there are 11 OPDs on
the ground floor and 18 OPDs on the first floor with a total built up area
of 21800 sq. ft., which is more than sufficient. Besides there is no
prescribed norm regarding OPD area by the MCI.
11. Explanation has also been rendered with regard to the number of patients.
It is contended that on 16.6.2012 there were 373 in-patients and 903 out-
patients and, thus, the report cannot be relied upon. It is further submitted
that it is incorrect to state that there were no post-operative cases as the
same were treated as day-care surgery patients and discharged the same.
Reliance is placed in the case of Al-Karim Educational Trust & Anr. Vs.
State of Bihar & Ors., (1996) 8 SCC 330 in support of the plea that it is
impractical to insist for a fool proof or absolute adherence of all the
requirements. The following observations of the Court have been relied
upon :
"(h) It is impractical to insist, for a foolproof or absolute adhere to
all requirements without regard to their importance or relevance,
for the purpose of imparting education, in a particular way,
especially because the Institution has begun to function, students
admitted to the Institution have taken the examination and the fate
of a good many number of students should not hang in the balance
in an unending or everlasting manner.
(i) In the final analysis, the question to be posed is whether there
exists the minimal and satisfactory requirements to keep the matter
going, and not whether better arrangements that will render the set-
up more efficient and more satisfactory, should be insisted as "a
wooden" rule.
(j) It may be that there are some minor deficiencies here and
there which call for rectification. Time can certainly set right such
matters. What is required is a total, practical, overall view in the
light of the latest tabular statement filed along with the affidavit
dated 4-9-1995. Material placed before the court goes to show that
there has been „substantial‟ though not literal compliance with the
deficiencies pointed out in the latest report dated 28-6-1995."
12. The present petition has been opposed by counsel for the respondent. At
the outset reliance is placed by counsel for the respondent on State of
Kerala Vs. T.P. Roshna (1979) SCC 580, to highlight the role of the
Medical Council of India, wherein the Supreme Court has observed that
the Medical Council of India as an expert body which is to control
minimum standard of medical education and to regulate the working of an
institute. Paragraph 16 of the judgment reads as under:
"16. The Indian Medical Council Act, 1956 has constituted the
Medical Council of India as an expert body to control the minimum
standards of medical education and to regulate their observance.
Obviously, this high-powered Council has power to prescribe the
minimum standards of medical education. It has implicit power to
supervise the qualifications or eligibility standards for admission
into medical institutions. Thus, there is an overall investigation by
the Medical Council to prevent sub-standard entrance qualifications
for medical courses........."
13. Reliance is also placed on Medical Council of India Vs. State of
Karnataka (1998) 6 SCC 131 and more particularly paragraph 29, in
support of the plea that a medical student requires intense study which can
only be done if proper facilities are available in the medical college and
the hospital attached to it, and in the absence of proper facilities, as in the
case of the petitioner, the respondent was fully justified in rejecting the
renewal. Paragraph 29 of the judgment reads as under:
"29. A Medical student requires gruelling study and that can be
done only if proper facilities are available in a medical college and
the hospital attached to it has to be well equipped and the teaching
faculty and doctors have to be competent enough that when a
medical student comes out, he is perfect in the science of treatment
of human beings and is not found wanting in any way. The country
does not want half-baked medical professionals coming out of
medical colleges when they did not have full facilities of teaching
and were not exposed to the patients and their ailments during the
course of their study......."
14. Reliance is also placed by counsel for respondent on Section 10A of the
Indian Medical Council Act, 1956 to highlight the parameters which are
to be considered by the respondent for granting permission to set up and
to continue any medical college. Mr.Kumar, counsel for the respondent
contends that duty is cast on the respondent to ensure that the college is
able to provide necessary facilities in respect of staff, equipment,
accommodation therein and other facilities to ensure proper functioning of
the medical college. The decision of the expert body is to be based on
relevant considerations, thus it is contended that the present writ petition
is devoid of any merits, as the college has failed to fulfil and cure the
deficiencies as pointed out. Counsel has also placed reliance on Medical
Council of India Vs. Rajiv Gandhi University of Health Sciences (2004)
6 SCC 76 in support of his plea that the respondent would be well within
their right, not to grant renewal, since the college has failed to fulfil the
minimum norms for the present year. It is contended that the permission
is to be renewed every year, subject to the college achieving the yearly
target mentioned in "Minimum Requirement for 150 M.B.B.S.,
Admission Annually Regulations, 1999". The regulation provides for
accommodation in the medical college and its teaching hospital. Counsel
also submits that pursuant to the application made by the petitioner for
renewal, assessment of the petitioner‟s medical college was carried out on
17 -18th February, 2012 and certain deficiencies were pointed out by the
assessment team in the assessment report, which was duly conveyed to the
petitioner vide communication dated 26.05.2012. The assessment was
carried out on the above dates after giving prior information to the
petitioner. The petitioner had submitted their representation on
02.06.2012 wherein it was stated that they had complied with all the
deficiencies pointed out by the MCI pursuant to the earlier inspection of
17 -18th February, 2012. On receipt of the representation of the petitioner
and before any final decision could be taken, the MCI decided to conduct
a surprise inspection to verify whether any deficiency still exists in the
petitioner‟s medical college. The inspection was carried out on
16.06.2012 by two professors, who found a completely different picture to
the earlier claims of the petitioner, college and what was shown in the
earlier assessment. There were gross deficiencies inter alia in the faculty,
infrastructure, clinical material. On the basis of the finding of the surprise
inspection, another opportunity was granted to the petitioner college, to
appear and explain the deficiencies before the final decision is taken in the
matter vide communication dated 26.06.2012. On 27.06.2012
representative of the petitioner, college was present and a written
representation was also submitted by them in respect of the gross
deficiencies pointed out by the assessors. On the basis of oral
submissions and the representation made, the Board of Governors on
28.06.2012 declined the renewal for the third batch of students. The
deficiencies, according to the respondent were with respect to hospital
accommodation, accommodation for other staff and deficiencies in the
infrastructure, manpower and clinical material. It is thus contended that
the rejection was justified on account of the serious deficiencies, in the
infrastructure faculty clinical material and others. It is also submitted by
counsel for the respondent that merely because the petitioner has been
granted permission on earlier occasions, does not entitle the petitioner for
automatic continuance of such permission as statutory provisions require
that the standards are to be maintained throughout and if deficiencies are
found at any stage, the permission cannot be renewed. It is for this
purpose that the statutory scheme provides the concept of yearly renewal
of permission till recognition of decree.
15. It is disputed that the requirements with regard to accommodation, so
pointed out, are not necessary, as the same are elaborately mentioned in
the statutory provisions itself and on earlier occasion also the petitioner
college has provided the same to MCI, when it was established and when
the first renewal was granted in 2011, and thus it cannot be pleaded that
the assessor‟s form did not have a designated column for the same. While
counsel for the respondent has not disputed that as per the usual practice,
the assessors are appointed for compliance and verification and are
instructed to verify the compliance of the deficiencies pointed out in the
earlier inspection. It is however, submitted that they are appointed in the
bona fide belief that the medical colleges / institutions who are carrying
out the act of providing education will not manipulate the affairs of the
institution at the time of assessment, when they have prior information of
assessment / inspection being carried out. It is strenuously contended that
the assessor‟s could not turn a blind eye and ignore the glaring
deficiencies which were visible at the time of verification. To ignore the
deficiencies found in the compliance verification inspection would
amount to dereliction of duty assigned by the MCI and would result in
grant of renewal to an institution which is ill equipped in terms of faculty,
clinical material and infrastructure, which would be against the aims and
objects of the Act and the law laid down by the Apex Court.
16. Counsel also contends that surprise inspections are now carried out
frequently as several instances have come to light that at the time of
inspection the colleges stage manage the statutory requirements,
temporary facilities are created and faculties are created temporary and
thus to ascertain the ground realities, the MCI conducts surprise
inspections without prior information to the college to ascertain the
ground reality. It is further submitted that the compliance verification did
not contain fresh deficiencies but also found that previously pointed out
deficiencies in relation to accommodation of students, teachers, nurses
and staff had not been rectified, which duly find mentioned in the counter
affidavit. It is submitted that the clarifications submitted by the petitioner
was not found to be satisfactory in the light of physical verification
carried out by the assessors.
17. Counsel for the respondent next contends that although a copy of the
compliance verification assessment report was not attached to the e-mail
dated 26.06.2012, however, a hard copy of the communication dated
26.06.2012 was sent immediately to the petitioner through speed-post and
copy of the assessment report was annexed therewith. The e-mail
communication had point-wise and clearly spelt out the deficiencies found
in the petitioner, college, and in compliance with the verification
assessment, an explanation was sought from the petitioners on those
deficiencies found during the surprise inspection.
18. Mr.Kumar, counsel for the respondent also submits that even otherwise
the time for grant of renewal has elapsed, as the last date for grant of
permission for the academic session 2012-13 was 14.06.2012, however,
the same was extended upto 30.06.2012 by the Central Government for
this academic session. Strong reliance is placed by counsel for the
respondent on the case Priya Gupta v. State of Chattisgarh & Ors, passed
in Civil Appeal No.4318/2012 reported in 2012 (5) SCALE, 328, which
provides that any permission granted after 15 th July of the relevant
academic year shall not be considered for admission to that academic
year, but only for the next academic year. Mr.Kumar, further submits that
the Al-Karim‟s case which is relied upon by the petitioner has been
considered by the Constitution Bench in the case of Dr.Preeti Srivastava
Vs. State of M.P (1999) SCC 120 wherein it has been held by the
Constitution Bench that regulations framed by the MCI in exercise of
powers under section 33 of the Act are statutory in nature and their
compliance is mandatory.
19. Counsel for the respondent contends that it is no longer res integra that
strict adherence to the time schedule prescribed under the regulations of
the MIC is to be followed. The Supreme Court has gone to the extent of
saying that any violation would be treated as a contempt of court.
20. The submission of counsel for the petitioner that the impugned order
contained only two deficiencies has been refuted. It is submitted that
besides the two deficiencies pertaining to clinical material and faculty,
gross deficiencies were pointed out in accommodation of students, staff
faculty, nurses and the infrastructure in the college.
21. Another submission which has been urged by counsel for the respondent
is that the respondent is bound to strictly follow the time schedule which
has been fixed by the regulations according to which the last date for
issuance of letter of permission by the Central Government was fixed as
15.06.2012. It is contended that for the academic year 2012-13 with the
prior permission of the Central Government the last date for grant of
permission is extended to 30.06.2012. The last date for grant of
permission having been passed, the answering respondent has no power to
enlarge the time. Reliance is placed on a decision of the Apex Court in
Mridul Dhar Vs. UOI (2005) 2 SCC 65, where the Supreme Court has
taken note of the schedule appended to the Establishment of a Medical
College Regulations, 1999. In the aforesaid decision the Supreme Court
has directed all concerned to strictly adhere to the schedule mentioned in
the regulation. Point 14 in the paragraph 35 of the judgment reads as
under:
"14. Time schedule for establishment of new college or to increase
intake in existing college, shall be adhered to strictly by all
concerned."
22. To the same effect is the judgment of the Supreme Court dated
08.05.2012 in the case of Priya Gupta v. State of Chattisgarh & Ors,
passed in Civil Appeal No.4318/2012 reported in 2012 (5) SCALE, 328
wherein the Supreme Court has held in paragraphs 23, 24, 25 and 27 of
the judgment, which are reproduced below:
"23. Lastly, in the case of Priyadarshini Dental College &
Hospital v. Union of India & Ors. [(2011) 4 SCC 623], this
Court cautioned all concerned that the schedule specified in Mridul
Dhar (supra) should be maintained and regulations should be
strictly followed. The Court suggested that the process of
inspection of colleges, grant of permission or renewal of permission
should also be done well in advance to allow time for setting right
the deficiencies pointed out.
24. In the case of State of Bihar & Ors. v. Dr. Sanjay Kumar
Sinha & Ors. [(1990) 4 SCC 624], a Bench of this Court took
exception to the non- adherence to the time schedules and reiterated
that the admissions to medical colleges and post-graduate courses
were governed by the orders of this Court and the regulations
issued by the Medical Council of India, which must be strictly
followed. This Court issued a warning, that if there was any
violation in future, the same shall be treated as default and viewed
very seriously. Further, in the case of Medical Council of India v.
Madhu Singh & Ors. [(2002) 7 SCC 258], this Court declared
two very important principles. Firstly, it declared that mid-stream
admissions should not be permitted and secondly, noticing the
practice of compassion in review of such admissions, this Court
also held that late or mid-stream admission, even just four months
after beginning of the classes, cannot be permitted.
25. A consistent and clear view held by this Court is that the
regulations framed by the MCI are binding and these standards
cannot be deviated from. Reference can be made to State of M.P.
& Ors. v. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83 -
paras 24 and 26]; Bharati Vidyapeeth (Deemed University) &
Ors. v. State of Maharashtra & Anr. [(2004) 11 SCC 755 -
para 20]; Chowdhury Navin Hemabhai & Ors. v. State of
Gujarat & Ors. [(2011) 3 SCC 617 - paras 7, 11, 12, 14 and
18] and Harish Verma & Ors. v. Ajay Srivastava & Ors.
[(2003) 8 SCC 69 - paras 14 to 21].
27. Now, let us examine the adverse consequences of non-
adherence to the prescribed schedules. The schedules prescribed
have the force of law, in as much as they form part of the
judgments of this Court, which are the declared law of the land in
terms of Article 141 of the Constitution of India and form part of
the regulations of the Medical Council of India, which also have the
force of law and are binding on all concerned. It is difficult to
comprehend that any authority can have the discretion to alter these
schedules to suit a given situation, whether such authority is the
Medical Council of India, the Government of India, State
Government, University or the selection bodies constituted at the
college level for allotment of seats by way of counseling. We have
no hesitation in clearly declaring that none of these authorities are
vested with the power of relaxing, varying or disturbing the time
schedule, or the procedures of admission, as provided in the
judgments of this Court and the Medical Council of India
Regulations. Inter alia, the disadvantages are:-
1) Delay and unauthorized extension of schedules defeat the
principle of admission on merit, especially in relation to
preferential choice of colleges and courses. Magnanimity in
this respect, by condoning delayed admission, need not be
shown by the Courts as it would clearly be at the cost of
more meritorious students. The principle of merit cannot be
so blatantly compromised. This was also affirmed by this
Court in the case of Muskan Dogra & Ors. v. State of
Punjab & Ors. [(2005) 9 SCC 186].
2) Mid-stream admissions are being permitted under the garb
of extended counseling or by extension of periods for
admission which, again, is impermissible.
3) The delay in adherence to the schedule, delay in the
commencement of courses etc., encourage lowering of the
standards of education in the Medical/Dental Colleges by
shortening the duration of the academic courses and
promoting the chances of arbitrary and less meritorious
admissions.
4) Inequities are created which are prejudicial to the interests
of the students and the colleges and more importantly, affect
the maintenance of prescribed standard of education. These
inequities arise because the candidates secure admission,
with or without active connivance, by the manipulation and
arbitrary handling of the prescribed schedules, at the cost of
more meritorious candidates. When admissions are
challenged, these students would run the risk of losing their
seats though they may have completed their course while
litigation was pending in the court of competent jurisdiction.
5) The highly competitive standards for admission to such
colleges stand frustrated because of non-adherence to the
prescribed time schedules. The admissions are stretched to
the last date and then admissions are arbitrarily given by
adopting impermissible practices.
6) Timely non-inclusion of the recognised/approved colleges
and seats deprives the students of their right of fair choice of
college/course, on the strength of their merit.
7) Preference should be to fill up all vacant seats, but under
the garb that seats should not go waste, it would be
impermissible to give admissions in an arbitrary manner and
without recourse to the prescribed rule of merit."
23. The Apex Court has strongly deprecated the non-adherence to the time
schedule prescribed in the MCI regulations. The Court had expressed
deep concern regarding blatant violation of the rules and regulations and
issued certain directions in that regard, including consequences of default
of those directions. Paragraph 30 reads as under:
"30. Thus, the need of the hour is that binding dicta be prescribed
and statutory regulations be enforced, so that all concerned are
mandatorily required to implement the time schedule in its true
spirit and substance. It is difficult and not even advisable to keep
some windows open to meet a particular situation of exception, as it
may pose impediments to the smooth implementation of laws and
defeat the very object of the scheme. These schedules have
been prescribed upon serious consideration by all concerned.
They are to be applied strict sensu and cannot be moulded to suit
the convenience of some economic or other interest of any
institution, especially, in a manner that is bound to result in
compromise of the above- stated principles. Keeping in view the
contemptuous conduct of the relevant stakeholders, their cannonade
on the rule of merit compels us to state, with precision and
esemplastically, the action that is necessary to ameliorate the
process of selection. Thus, we issue the following directions in rem
for their strict compliance, without demur and default, by all
concerned.
(i) The commencement of new courses or increases in seats of
existing courses of MBBS/BDS are to be
approved/recognised by the Government of India by 15 th July of
each calendar year for the relevant academic sessions of that year.
(ii) ....
(iii) After 15th July of each year, neither the Union of India nor
the Medical or Dental Council of India shall issue any recognition
or approval for the current academic year. If any such approval is
granted after 15th July of any year, it shall only be operative for the
next academic year and not in the current academic year. Once the
sanction/approval is granted on or before 15th July of the relevant
year, the name of that college and all seats shall be included in both
the first and the second counseling, in accordance with the Rules."
24. Mr.Kumar, submits that the petitioner was issued a show cause notice
dated 26.06.2012 wherein all the deficiencies found pursuant to the
inspection carried out on 16.06.2012 were clearly pointed out and in reply
thereto dated 27.06.2012 all the issues regarding hostel, staff quarters,
nurses accommodation, kitchen, accommodation for married nurses,
deficiencies in the OPD area, deficiencies in the radiology department,
records of ultra- sound reports, deficiencies in the ultra-sound machine
and deficiencies in ICCU, RICU, lack of faculty have been addressed by
the petitioner and thus it cannot be said that the petitioner was at any
disadvantage on account of non-receipt of the assessment report formally.
25. Counsel submits that no reliance can be placed on the documents
submitted along with the application (CM.No.10062/2012) seeking leave
to raise the additional grounds as the same are unreliable. It is submitted
that in most cases salary is shown to have been paid to doctors in cash and
there is no proof of payment except cash vouchers issued by the
petitioner. The strength and genuineness of the faculty was physically
verified and it was found that not even 20% of the faculty which the
college claims to have, was present on the date of inspection. As per the
report in IPD most of the patients were either apparently not having any
ailment or minor ailment which did not require admission. The data
recorded in the log books on which the petitioner is placing reliance were
not found in order on physical verification.
26. Counsel further disputes the claim of the petitioner, college of having
adequate clinical material, in terms of OPD and IPD, as they do not match
with the surprise inspection which was conducted by the assessors, to
verify information submitted by the college, fake patients were produced
as shown to be admitted in different departments. It is submitted that the
college claims that all post operative cases on the day of inspection was
treated as day care surgery and were discharged and sent home, which
would show that no major surgeries were being carried out by the
petitioner.
27. It is next submitted by Mr.Kumar, that the assessors appointed by the
MCI are not employees of the MCI, but independent experts and head of
department(s) and professor(s) of reputed government medical colleges.
One of the assessors, who inspected the institution on 16.06.2012, is the
Head of Department of Lady Harding Medical College, Delhi which is a
fully owned and managed by the Government of India and the MCI has
no control over the same. Thus it is submitted that the assessors were in
no way biased in the inspection carried out by them.
28. I have heard counsel for the parties and carefully considered their rival
contentions. The petitioner college was established in the year 2010 and
the first renewal of admission for the second batch was granted on
28.06.2012. It is the renewal for the third batch of 150 students for the
academic year 2012-13, which is the bone of contention between the
parties.
29. The petitioner applied for renewal for the admission for academic year
2012-13 on 22.12.2011. By a letter of 13.02.2012, the respondent
appointed inspectors for assessment of the physical and other teaching
facilities for renewal. The petitioner was informed about the date of
inspection and after inspection an assessment report dated 17-18/02/2012
was prepared. It is the case of the petitioner that after a gap of three
months the respondent issued a deficiencies report on 26.05.2012. The
petitioner was informed about the deficiencies and five deficiencies were
pointed out and other deficiencies mentioned in the report were also relied
upon. On 02.06.2012 a compliance report was filed by the petitioner.
The petitioner requested that the renewal be granted for the third batch of
students. Strong reliance has been placed by counsel for the petitioner on
the communication issued to Dr.H.S. Rehan and Dr.Prem Prakash Gupta,
who were appointed to carry out the assessment and to verify the
compliance submitted by the petitioner. The letter reads as under:
"Sub: Assessment of the physical and the other teaching
facilities available for renewal of permission for MBBS
course for 3rd Batch Tagore Medical College and Hospital,
Chennai under Dr.MGR Medical University T.N. U/s.10A of
the IMC Act, 1956-Compliance verification assessment
thereof.
Sir/ Madam,
I am directed to inform you have been appointed as an
Assessors to carry out the assessment to verify the
compliance submitted by the authorities of Tagore Medical
College and Hospital, Chennai on the deficiencies pointed
out in the MCI inspection report.
You are requested to verify only the issues related to
the deficiencies raised in the earlier assessment 17th & 18th
February, 2012 on 16th June, 2012.
You are also requested to send the hardcopy of the
assessment report by the Speed Post/ Courier/ By Hand to the
Deputy Secretary, U.G. Section, Medical Council of India,
Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi-110 077.
A copy of the compliance submitted by the College
alongwith the assessment reports are enclosed for your
perusal for carrying out the above assessment.
You are further requested to collect the demand draft
of Rs.3.00 lakhs from the college authorities in favour of
Secretary, Medical Council of India, payable at New Delhi as
Compliance Verification assessment fee.
Note: - Please noted that this is a surprise assessment.
Hence, please do not interact with college authorities in this
regard."
30. It is the case of the petitioner that the assessors had to follow a specific
mandate i.e. to verify compliance submitted by the petitioner on the
deficiencies pointed out in the MCI inspection report. Reading of the
letter would show that these two professors were requested to verify only
issues related to the deficiencies raised in the earlier assessment of 17-
18/02/2012. The assessors carried out a surprise inspection on
16.06.2012, wherein deficiencies were pointed out. The deficiencies
pointed out to the petitioner are under various heads. Petitioner was
informed that the deficiencies were observed pertaining to size of rooms
in the boys and girls hostel being grossly inadequate, no separate hostel
for residents (SR/JR), two apartments being short for teaching staff,
quarters accommodation for nurses being short by 16, mess/ kitchen
facility not available, no provision for accommodation for married nurses,
inadequate OPD area, deficiencies of two technicians in the radiology
department, against the total strength of 8, as per MCI norms. Deficiency
of one ultra-sound machine or a colour Doppler machine, records of
ultrasound, gross deficiencies of faculty in the general medicine
department, and many patients with no ailments or for minor ailments
were shown admitted. The case records of many patients were
incomplete. Similar was the situation in the general surgery department,
and many patients with fake complaints were shown admitted and case
records of many patients were incomplete. In the ICU, RICU, CICU,
GICU & SICU the patients admitted were relatively stable as none of the
patients were either on oxygen therapy and ventilator support or even on
IV line; aseptic precautions were not followed. The data submitted
previously by the college authority was not consistent with the rule book.
The above areas were not fully equipped in terms of availability of
ventilators/ non-invasive ventilators/ multi- para-Monitors which are basic
essential for any patient admitted; and the other deficiencies as per the
assessment report were also relied upon. The petitioner by a
communication dated 27.06.2012 responded to all the deficiencies which
were brought to their notice and explanations were rendered on their
behalf. The submissions made by counsel for the petitioner are to be
considered in the light of the inspection carried out on 17-18/02/2012 and
16.06.2012.
31. The short question which comes up for consideration before the Court at
the very first instance and as urged by Mr.Chadha, is as to whether the
assessors‟ report based on a surprise inspection which was carried out on
16.06.2012 is to be ignored on the ground that they were only directed to
verify the issue related to the deficiencies raised in the earlier assessment
of 17th and 18th February, 2012. Whether their inspection report is to be
rejected for the reason that as per the assessors‟ guide, three professors are
to be appointed to assess the college, and whether the report is to be
rejected since the compliance verification assessment report is only to
verify the compliance of deficiencies and it cannot become a fresh
assessment report. In my view, the answer has to be in the negative. It is
an admitted position that the first inspection was carried out after
informing petitioner on 17-18/02/2012. Although the respondents took
three months‟ time to inform the petitioner about the deficiencies, the
petitioner was duly informed about the deficiencies in hostel
accommodation, shortage of bed in psychiatry department, shortage of
two labs in Physiology, no mess and accommodation facility in RHTC,
and accommodation regarding staff, nurses, students and residents were
contradictory in Form A and assessor report. The petitioner by a
communication of 02.06.2012 had rendered their explanation.
32. Having regard to various provisions of the Indian Medical Council Act,
1956, the medical Council has been given the responsibility of
discharging the duty of maintenance of standards of medical education in
the country. In the case of State of Kerala (Supra) this fact was
recognized by the Apex Court and it was held that the high powered
council has the power to prescribe the minimum standards of medical
education. The council has to supervise the qualifications, the eligibility
standards for admission into Medical Institution and they must ensure that
proper facilities are available in a medical college and the hospital
attached to it is fully equipped with for the reason that a medical student
requires grueling study. It is the responsibility of the MCI to ensure that
at the end of the course a student is not found wanting in a way on
account of lack of teaching facilities or lack of exposure of patients during
the course of study. Thus to fall back on mere technicalities compared to
the glaring deficiencies which have been pointed out by two eminent
professors cannot be permitted, as it would defeat the aims and objects of
the Act. The opening lines of the observations of the assessors, which are
reproduced below, would give some indication of the state of affairs and
reasons for the inspection report dated 17th and 18th February, 2012,
cannot be relied upon:
"Special Note
The college authorities were aware of the impending assessment for
the compliance of the deficiencies pointed out as we were received
at the college premises on arrival. It is an issue of serious concern,
since it was a surprise inspection."
[Emphasis supplied]
33. In this detailed inspection report dated 16.06.2012, it has been pointed out
that in the boys hostel each room measures around 4 sq. mtrs, which
accommodates three students, while the space required for a student as per
the MCI norms is 10 sq. mtrs, which would show that the size of the room
in the boys hostel is grossly inadequate, as per MCI norms. It was noticed
that few rooms in the boys and girls hostels have been allotted to four
students which is again a violation, and many rooms in girls hostels were
fabricated with temporary structures like aluminum and particle boards.
Shortage was found of one bed in psychiatry department, shortage of two
labs in physiology department. There were no mess and accommodation
facilities in RHTC, although some folding beds were put in three rooms.
There were more serious deficiencies in the radiology department. On
physical verification only three radiology technicians were seen, and the
evidence of leave of the person was not made available, despite request.
There was lack of equipments in the radiology department. Since it
appears that the petitioner had advanced notice of the so called surprise
inspection, in the medical department many patients with no ailments or
minor ailments were shown admitted. It has been noticed that even
attendants (including two small kids) were occupying the bed giving a
false impression of higher bed occupancy. Case records of many patients
were incomplete, history of investigation treatment was lacking. Only
one doctor was available in the medical ward. Senior Faculty and HOD
were absent on ward visit. The assessors have also observed that they had
asked the Dean for head count of the faculty of General Medicine, and
after waiting for two hours, she was able to produce part of the faculty,
according to which only one associate professor out of 5, 2 assistant
professors out of 6, 3 senior residents out of 9, and 10 junior residents out
of 18 were found at the hospital. The assessors also found it difficult to
satisfy themselves as to whether the junior residents actually belong to
medicine department or not, as their identity cards produced, did not
mention as to which department they were attached to.
34. The Assessors further highlighted the fact that the college authorities
failed to produce any reason or evidence to justify the non-availability of
faculty. Copy of the attendance sheet was enclosed with the report.
Similar observations were made by the Assessors with regard to the
deficiencies of the faculty in the Medicine Department. They found that
many subjects were admitted with the fake complaints; the records of
many patients were incomplete; only one junior Surgery Doctor was
available on visit of all Surgical Wards. The Assessor also discovered that
not a single pre-operative or post-operative surgery case was present in
the ward. The post-operative surgery ward comprised of three patients.
One post Trmpanoplasty, one post Tonsillectomy and the other one with
incision drainage of small abscess in the right hand. As per the report,
after a wait of more than three hours and several requests to the Dean only
one Professor, two associate Professors, one Assistant Professor, one
Senior Resident and four Junior Residents could be found available.
Patients admitted to ICCU, RICCU, CICU, GICU and SICU were
relatively stable as none of the patients were was on oxygen therapy or
ventilator support or even on IV line. The report of the Assessor reveal a
very sorry state of affairs. By filing additional grounds the petitioner has
annexed various documents in support of its plea that all facilities are in
place. When it was pointed out that the salaries have been paid in cash to
the Doctors various receipts were pointed out to show that large number
of salaries were even being paid through cheque. The documents placed
on record would also show that a large number of Doctors even Senior
Doctors have been paid salaries in cash, which is not a normal practice
and upon reading the report which shows that doctors were not available
despite waiting for more than two hours, the court can only drawn an
adverse inference that the cash receipts are only self-serving and
unreliable. There is no reasonable explanation for the same and only an
adverse inference can be drawn that the cash receipts are either
manipulated or manufactured, or the Doctors are being paid in cash so
that they are available at the time of inspection, as guest artists. Even
after the petitioner had got some prior information of the surprise
inspection, petitioner was able to produce 20% faculty, fake patients and
attendants of the patients including children were asked to fill the beds to
satisfy the Assessors who had visited the college, it would be difficult to
imagine what would be the state of affairs in case they had no prior
information.
35. I am also satisfied that petitioner had complete knowledge about the
assessors‟ report dated 26.06.2012, which is evident upon reading of reply
dated 27.06.2012 as all deficiencies pointed out were addressed by them,
thus it cannot be said that there was any violation of principles of natural
justice. The request made by counsel for petitioner for another inspection
is declined, for the reasons that an institution, who attempts to stage
manage things in the manner as detailed above i.e. arranging fake patients,
cash payment receipts for doctors and only 20% faculty, cannot be given
benefit of another inspection, as such a practice is to be discouraged.
36. Reliance is placed by counsel for the petitioner in the case of Al-karim
(Supra), is misplaced, as the Apex Court has held that if there is
substantial compliance of deficiencies, minor ones can be overlooked,
whereas in the case at hand, two basic requirements for training MBBS
students, i.e. the faculty and the patients are severally lacking. Reliance
placed by counsel for the petitioner in the case of Priyadarshini Dental
College (Supra), is also misplaced. The paragraph 22 to 25 of the
judgment relied upon by the petitioner clearly provides that renewal
cannot be rejected for insignificant or technical violations and object of
the same is to ensure that infrastructural and faculty requirements are
fulfilled in a gradual manner. In the instant case MCI is seeking nothing
else but this gradual fulfillment of statutory requirements before
permission can be renewed, whereas in the case at hand instead of
improving it has shown deterioration.
37. Even otherwise, no benefit can be granted to the petitioner, as the time
schedule for grant of permission is mandatory and binding and the
importance of adhering to the time schedule has been highlighted by the
Apex Court in the cases of Mridul Dhar (Supra) [See page 65 para 35];
Priya Gupta (Supra) [See page 328 paras 30-31]; and Medical Council of
India Vs. JSS Medical College) (2012) 5 SCC 628 [See para 8].
38. The petitioner in this case had approached this court on 03.07.2012 by
filing a petition [WP(C)No.3845/2012]. Being conscious of the mandate
of the Apex Court in Priya Gupta‟s case the petitioner withdrew the writ
petition No.3845/2012 on 10.07.2012 and approached the Supreme Court
of India. The Supreme Court did not grant any relief to the petitioner and
granted leave to approach this court again by an order dated 23.07.2012.
Petitioner is thus responsible for the delay in approaching the Court.
39. I find no infirmity or perversity in the impugned order. The impugned
order is neither casual nor any principle of natural justice has been
violated. The writ petition is devoid of merit and is thus dismissed. No
order as to costs.
CM.9303/2012 & CM.9304/2012
40. In view of order passed in the writ petition, applications stand dismissed.
G.S.SISTANI, J
SEPTEMBER 11, 2012
ssn
