Raipur Institute Of Medical ... vs Union Of India & Anr.
2013 Latest Caselaw 5903 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment reserved on: 12.12.2013
%                                         Date of Decision: 20.12.2013

+      W.P.(C) 6261/2013

       RAIPUR INSTITUTE OF MEDICAL SCIENCES & ORS
                                                    ... Petitioners
                     Through: Ms Bina Madhavan, Mr S. Udaya
                     Kr. Sagar and Mr Shivendra Singh, Advs.

                         versus

    UNION OF INDIA & ANR.                  ..... Respondents
                   Through: Mr Himanshu Bajaj, CGSC for R-1
                   Mr Amit Kumar, Mr Amitesh Kumar and Mr
                   Ravinder Kumar, Advs for R-2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J.

The petitioner No.3 is a society and petitioner No.2-Dr.Shambhu

Nath Gupta is its Vice-President. Seeking to start a medical college in

the academic year 2013-14 in the name of respondent No.1-Raipur

Institute of Medical Sciences, the petitioners applied to the respondent-

Medical Council of India, seeking permission to establish a new

Medical College, with intake capacity of 150 students. An assessment

of physical and teaching facilities available in the said college was

carried out by the assessors appointed by MCI, on 14.05.2013 and

15.05.2013. The report of the assessors was considered by the Council

in its meeting held on 11/12.06.2013. As many as 19 deficiencies,

including lack of adequate clinical material, were found by the Board of

Governors of the Medical Council. It was also found that the patients in

surgery and pediatrics were such that they did not need admission. The

representatives of the petitioners were, therefore, directed to remain

present before the Board of Governors on 26.06.2013, alongwith the

supporting documents. The petitioner submitted its response to the said

communication vide their letter dated 26.06.2013 stating therein that all

the deficiencies had been corrected, fulfilling MCI norms. As regards

the alleged inadequacy of clinical material and the patients in surgery

and pediatrics not requiring admission, it was stated in the reply that the

verified bed occupancy was 69.66% and all the patients needed

admissions as indoor patients and, therefore, all of them were clinical

material.

2. Vide order dated 02.07.2013, Medical Council of India informed

the petitioner that the Board of Governors in its meeting held on

25/26.07.2013 had decided not to approve the establishment of new

medical college at New Raipur by petitioner No. 3. Being aggrieved

from the aforesaid order, the petitioner approached this Court by way of

W.P.(C) No. 4250 of 2013, which came to be decided vide order dated

08.07.2013, whereby MCI was directed to pass a speaking order, on or

before 12.07.2013, dealing with the reply of the petitioners and the

explanation offered by their representative during the course of hearing

before the Board of Directors of MCI on 26.06.2013 and convey the

speaking order immediately thereafter. The order passed by this Court

on 02.07.2013 was challenged by the petitioners before the Hon'ble

Supreme Court which, noticing that this Court had already directed MCI

to pass a speaking order, disposed of the Special Leave Petition filed by

the petitioners, directing that MCI will now pass a fresh speaking order

on its own merit after verifying the compliance of the deficiency said to

have been made by the petitioners. MCI vide order dated 12.07.2013,

complying with the order of this Court dated 08.07.2013, recorded

reasons for declining letter of permission to the petitioners

3. Pursuant to the order passed by the Hon'ble Supreme Court on

12.07.2013, physical verification of the compliances was also carried

out by MCI. The fresh inspection was carried out on 23/24.08.2013 and

the report of the assessors was considered by the Undergraduate

Committee of the Council on 29.08.2013. The observations of the

Undergraduate Committee along with the report of the assessors were

considered by the Board of Governor of MCI on 03.09.2013.

The Board of Governors noted that the bed occupancy was still

inadequate as it was as low as 55% and 58% in Departments of

Medicine and Surgery respectively. The Board of Governors also

observed that the assessors had noted that the quality of clinical material

in OPD and IPD require improvement, besides making observations

with respect to maintenance of case sheets and emphasizing

improvements in the same. The MCI took note of the provisions of

"Minimum Requirements for 150 MBBS Admissions Annually

Regulations, 1999" which inter alia require a functional teaching

hospital with 300 beds having a minimum of 60% indoor occupancy at

the time of submission of the application as well as inspection by the

Medical Council of India. The Council observed that the bed occupancy

was not 60% on the date of the application and the applicant had failed

to achieve minimum 60% of bed occupancy even after almost one year

of submitting the application. It was also observed that the requirement

of a functional hospital in terms of the Regulations envisages proper

maintenance of case records and since the observers felt that

maintenance of record required improvement, the compliance submitted

by the petitioners did not inspire confidence. The MCI felt that the

petitioners should make efforts to increase the bed occupancy for

subsequent years and make a fresh application as per Regulations for the

next year, within the time schedule. The decision of Council was

conveyed to the petitioner vide communication dated 17.09.2013 which

the petitioners have challenged by way of the present writ petition.

4. It would, thus, be seen that the letter of permission was denied to

the petitioners on account of the following three (3) deficiencies:

i. In ENT section the audiometry room was not sound proof;

ii. The bed occupancy was not 60 per cent at the time of submitting

the application onwards.

iii. The quality of the clinical material in OPD and IPD as well as

maintenance of case sheets required improvements.

No other ground was urged during the course of hearing.

5. Regulation B3.1(d) of the Minimum Requirements for 150

M.B.B.S. Admissions annually Regulations, 1999, requires the

audiometry room in the ENT section to be sound proof. A perusal of the

inspection report dated 23/24.8.2013 would show that though

audiometry room was available, it was not sound proof/sound treated as

per the requirements. Therefore, the petitioners are required to make the

audiometry room in the ENT section sound proof as per the requirement

of the MCI before their application for grant of letter of permission can

be considered.

6. During the course of arguments it was an admitted position that

the Regulations framed by the MCI require 60 per cent occupancy at the

time of submission of the application to the MCI as well as at the time

of inspection of the hospital by MCI and up to 2nd renewal of the

medical college. However, the learned counsel for the MCI could not

show to me any Regulation requiring minimum of 60 per cent indoor

bed occupancy in each of the Departments. Though the Regulations do

prescribe distribution of beds amongst various departments, the said

distribution is altogether different from the bed occupancy. A hospital

may have bed-distribution in terms of the Regulations framed by MCI

but still may not have 60 per cent bed occupancy in each of the

Departments. This is not the case of the MCI that the distribution of

beds amongst various departments was not in conformity with their

Regulations in the hospital of the petitioners. Therefore, if the overall

bed occupancy in the hospital of the petitioners was 60 per cent at the

time of submission of the application as well as at the time of inspection

of the hospital and the same continues to be as such, the MCI will not be

justified in denying the Letter of Permission merely because the bed

occupancy in each of the major departments was not 60 per cent or

more.

7. It is stated in the report dated 23/24.8.2013 that the quality of

clinical material available in the Out-Patient and In-Patient Departments

needs improvement and the maintenance of case sheets also needs

improvements and, therefore, the assessment was less. The aforesaid

deficiency was found in the General Medicine Department as well as in

the General Surgery Department. However, the report does not indicate

how, in what manner and to what extent the quality of clinical material

and maintenance of case sheets needed improvement. No specific

deficiency in the clinical material available in the aforesaid Department

or in the case sheets maintained therein is pointed out in the report of the

assessors. In the absence of particulars of the alleged deficiencies in the

quality of clinical material and maintenance of case sheets, it is not

possible for the petitioners to know what precisely are the improvements

they are required to make up in this regard. Such vague reports, without

such particulars as would unable the applicants to know what precisely

were the deficiencies they were required to make up cannot be a valid

ground for rejection of the Letter of Permission. Therefore, the MCI, in

my view, was not justified in denying letter of permission to the

petitioners on the aforesaid ground.

8. The next question which comes up for consideration is as to

whether, the overall bed occupancy was 60 per cent at the time of

submission of the application and continued to be so till the time

inspection was carried out on 23/24.8.2013. If it is found that the

overall bed occupancy in the hospital of the petitioners was less than 60

per cent at any point of time on or after submission of the application for

grant of Letter of Permission, the petitioners would not be entitled to

grant of permission to start a medical college with intake of 150

admissions.

This can hardly be disputed that the bed occupancy prescribed in

the Regulations is genuine admissions of patients and if it is found that

the patients were admitted, only with a view to hoodwink the assessors

of the MCI as regards extent of bed occupancy, at the time of inspection

by them, by admitting persons, who did not need admission as indoor

patients, such patients have to be excluded from consideration, while

computing the bed occupancy in the hospital of the applicant.

A perusal of the inspection report dated 15.5.2013 would show

that in Pediatrics Department nine (9) patients were found admitted and

out of them six (6) patients were such who did not deserve admission.

Only three (3) patients were found deserving admission. In General

Surgery Department forty-eight (48) patients were found admitted but as

much as 50 per cent of them, i.e. twenty-four (24), did not qualify for

surgical admission. In Orthopedics Department eighteen (18) patients

were found admitted but only one (1) of them was found deserving

admission, meaning thereby that seventeen (17) out of eighteen (18)

patients in Orthopedics Department did not deserve admission.

9. Though the learned counsel for the petitioners disputed the report

of the assessor with respect to the requirement for admission of the

aforesaid patients as indoor patients, this Court in exercise of its writ

jurisdiction under Article 226 of the Constitution cannot go into such

questions and must necessarily accept the report of the assessor,

particularly, when the inspection was carried out in the presence of the

representatives of the petitioners. As observed in Manohar Lal Sharma

Vs. MCI & Ors. 2013 (11) SCALE 294, when the inspection team

consists of doctors of unquestionable integrity and reputation, who are

experts in the field, there is no reason to discard the report of such an

inspection.

Since the petitioners were required to have 300 bed hospital, the

bed occupancy at the time of inspection on 15.5.2013 should have been

at least 180 and all the indoor patients should have been genuine

patients who required indoor treatment in the said hospital. If the

patients who did not genuinely require admission in the wards are

excluded from consideration, the number of occupied beds falls well

below 180 since as many as forty-seven (47) patients in the opinion of

the assessor did not deserve admission as indoor patients.

10. In Manohar Lal Sharma (supra), Section 10A of the Indian

Medical Council Act, 1956, which deals with grant of permission for

establishment of new medical colleges and new courses of study, to the

extent it is relevant for the purpose of this writ petition reads as under:

"7. (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course or study or training or accommodating the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme.

(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;"

It was further observed by the Hon'ble Supreme Court that the

requirements are statutorily prescribed and, therefore, the MCI has no

power to dilute the same. If MCI dilutes the minimum standards, that

will be doing violence of the statutory requirements, since in the

absence of such requirements the college will be producing half baked

and poor quality doctors who would do more harm to the society than

service.

11. It is stated in the writ petition that no opportunity of hearing was

given to the petitioner before passing the order convyed to them vide

communication dated 17.9.2013. As observed in Manohar Lal Sharma

(supra), the MCI while deciding to grant permission or not to grant

permission is not functioning as a quasi judicial authority but only as an

administrative authority. The rigid rules of natural justice, therefore, are

not contemplated or envisaged. It was, therefore, held that compliance

report is called only to ascertain whether the deficiencies pointed out

were rectified or not and if the MCI is not satisfied with the manner of

compliance it can conduct a surprise inspection. After that no further

time or opportunity to rectify the deficiencies is contemplated nor

further opportunity of being heard is provided. I, therefore, find no

merit in the said contention.

12. For the reasons stated hereinabove, I am of the considered view,

that since at the time of inspection on 15.5.2013 the bed occupancy,

computed on the basis of the patients who genuinely required admission

comes to be less than 60 per cent and the audiometry room in the ENT

section was not found to be sound proof as per the requirement of the

MCI, the application of the petitioners was rightly rejected by the MCI

for the year 2013-2014.

13. The next questions which arises for consideration is as to whether

the petitioners should be asked to apply afresh for grant of letter of

permission for the admission year 2014-2015 or the application which

they had submitted for the admission year 2013-2014 can be considered

as an application for the admission year 2014-2015. Though at the time

of inspection on 15.5.2013, the bed occupancy computed on the basis of

genuinely indoor patients was less than 60 per cent, the said occupancy

at the time of inspection on 23/24.8.2013 was not stated to be less than

60 per cent. If the said occupancy had continued to be 60 per cent or

more on and after 23/24.8.2013, the petitioners can on the strength of

the inspection dated 23/24.8.2013, seek grant of Letter of Permission for

the admission year 2014-2015. In the facts & circumstances of the case,

no useful purpose, in my view, will be served by directing the

petitioners to apply afresh for the admission year 2014-2015.

14. The writ petition is, therefore, disposed of with the following

directions:

i. The application which the petitioners had submitted seeking letter

of permission for the year 2013-2014 shall now be considered by the

Medical Council of India for the admission year 2014-2015.

ii. A surprise inspection of the premises of the petitioners shall be

carried out by the competent assessors appointed by the Medical

Council of India on a date which the Medical Council of India shall not

disclose to the petitioners in advance.

iii. The entire visit of the assessors appointed by the MCI shall be got

videographed at the cost of the petitioners.

iv. The application of the petitioner shall be considered and

processed for the admission year 2014-2015 on the basis of the above

directed surprise inspection and an appropriate decision in accordance

with law will be taken by the MCI well in time and communicated to the

petitioners immediately thereafter.

v. In Manohar Lal Sharma (supra), the Hon'ble Supreme Court

inter alia observed that a surprise inspection contemplates no notice and

if the notice is given in advance, it would not be a surprise inspection

and will give room for the College to hoodwink the assessors by

springing a surprise, by making perfect what was imperfect. It was further

observed that MCI can conduct a surprise inspection to ascertain whether

the deficiencies had been rectified and the compliance report be accepted

or not. In my view, all the inspections carried out by the assessors

appointed by the MCI, should be surprise inspection, so that there is no

scope for (i) arranging or admitting patients, (ii)

arranging/hiring/borrowing equipments or employing teachers, on a

temporary basis, so as to project compliance of the Regulations at the time

of inspection, and later withdrawing/removing such temporarily arranged

infrastructure. I also feel that all such inspections should be got

videographed throughout the inspection, so that there is no dispute with

respect to what actually was available at the time of inspection. MCI is,

therefore, directed to consider making all inspections by its assessors to

assess the infrastructure including hospital equipments and faculty of a

proposed/existing medical college surprise, and get them videographed

throughout the inspection. The CD of such recording should be submitted

to MCI, on or before the time of submission of the inspection report.

In the facts & circumstances of the case, there shall be no orders as

to costs.

DECEMBER 20, 2013                                            V.K. JAIN, J.
BG/b'nesh