Delhi High Court
Kj Mehta General Hospital & ... vs The Board Of Governor In ... on 3 May, 2013
Author: G. S. Sistani
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4010/2012 & CM 8403/2012
% Judgment Pronounced on 3rd May, 2013
KJ MEHTA GENERAL HOSPITAL & COLLEGE
OF MEDICAL SCIENCES & ANR ..... Petitioners
Through : Mr.P.S. Bindra, Adv.
versus
THE BOARD OF GOVERNOR IN SUPERSESSION
OF MEDICAL COUNCIL OF INDIA ..... Respondent
Through : Mr.Nidesh Gupta, Sr. Adv. for Mr.Ankit
Rajgarhia, Adv. for MCI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. By the present writ petition the petitioner seeks a direction in the nature of
certiorari for quashing the email dated 30.6.2012 whereby the petitioners‟
application for establishment of a college has been rejected by the
respondent. The petitioner also prays for a writ of mandamus directing
respondent Medical Council of India to forthwith grant letter of
permission to petitioner no.1 college to admit students in the first year
MBBS Course for the academic year 2012-2013 as per the criteria of the
first batch.
2. Rule. With the consent of counsel for the parties present writ petition is
set down for final hearing and disposal.
3. The necessary facts, to be noticed for disposal of the present petition, are
that petitioner no.1 is a medical college and petitioner 2 is a trust.
Petitioner no.2 made an application under Section 10A of the Indian
Medical Council Act (IMC) (hereinafter referred to as the Act) for
establishing a medical college for 150 MBBS admissions annually.
Respondent, upon satisfaction, regarding fulfillment of all the conditions,
granted permission under Section 10A of the Act to petitioner no.2 to
establish petitioner no.1 college from the academic year 2009-2010.
Pursuant to the permission granted by the Government of India by the
communication dated 10.7.2009 petitioner no.1 college admitted 150
students in the first year of the MBBS Course. As per Regulation 8 of the
Medical College of India College Regulations, 1999, permission to
establish a college and admit students may be granted initially for a period
of one year and be renewed on yearly basis subject to verification of
achievements of annual targets. A college has to apply for renewal of
permission six months prior to expiry of the last permission granted.
4. In February, 2010, petitioners applied for grant of renewal of permission.
According to the petition, the first renewal compliance was made in April,
2010, and pursuant thereto the renewal was granted to the petitioners and
displayed on the website of respondent MCI. Before the permission could
be conveyed to the petitioners the MCI was superseded in May, 2010,
with the passing of the Indian Medical Council (Amendment) Act, 2010.
Thereafter all the decisions were required to be taken by the Board of
Governors itself under Section 10A of the Act and not by the Central
Government. The renewal permission granted to the petitioner college
was removed from the website and the petitioner was not granted renewal.
By a letter dated 15.7.2010 the respondent, on the basis of an assessment
report dated 21/22.6.2010 decided not to renew the permission of
admission of the second batch of students for the academic year 2010-
2011. By another letter dated 22.9.2010 respondent informed the
petitioner no.1 that it had been decided not to renew the permission for
admission of second batch of students for the academic year 2010-2011.
This decision of the respondent of not renewing the permission for
admission of the second batch of students for the academic year 2010-
2011 was challenged by petitioner no.1 college before this Court by filing
a writ petition, being W.P.(C) 5495/2010. The lis between the parties
ended with an order dated 25.10.2010 passed in LPA 661/2010, which
was disposed of by the consent of the parties. The students studying in the
college in the second year MBBS course filed a petition, being SCA
No.16600/2010, in the Gujarat High Court, which was disposed of by a
judgment dated 26.8.2011 whereby the students were distributed in other
colleges of the State.
5. Aggrieved by the aforesaid order the students filed Special Leave Petition
before the Supreme Court of India, which was dismissed on 12.9.2011,
however, while dismissing the said Special Leave Petition the Apex Court
permitted the petitioner no.1 college to comply with the requirements for
the request of renewal for the fourth year. By the letter dated 7.12.2011,
addressed to the respondent, the petitioners requested the respondent to
inspect the college for verifying the infrastructure and other requirements
to enable the petitioner to admit students in the first year MBBS course
for the academic year 2012-2013 as per the criteria of the first batch and
not the fourth batch as all the students admitted stood adjusted in other
medical colleges. In its meeting held on 26.12.2011 after considering the
documents including Essentiality Certificate and consent of affiliation
respondent MCI decided to conduct the assessment for admission for
fresh batch of students in the first year of MBBS course. In the meeting
held on 23.1.2012 the respondent took a view that the Essentiality
Certificate originally issued in favour of the petitioner college stood
utilized, the petitioner college was called upon to submit an Essentiality
Certificate revalidated by the State authorities and also the consent of
affiliation revalidated by the concerned university. Without admitting that
the Essentiality Certificate issued by the State Government had been
utilized and without prejudice the petitioner no.2 applied to the State
Government and Bhavnagar University to revalidate the Essentiality
Certificate and consent affiliation vide its letters dated 14.2.2012 and
15.2.2012. Respondent granted time for submission of fresh Essentiality
Certificate and consent of affiliation till 15.4.2012. Meanwhile the State
Government requested the petitioners to make a fresh proposal for grant
of Essentiality Certificate which the petitioner college did. An inspection
was conducted of the petitioner‟s college premises by a Committee
consisting of officers and experts deputed by the State Government.
Similarly Local Inspection Committee appointed by Bhavnagar
University inspected the premises of the petitioner college on 29.3.2012
and submitted its report to the University whereby the petitioner was
granted affiliation consent by the University.
6. On 13.4.2012 petitioner received the Essentiality Certificate, which was
sent to the respondent MCI by fax, email and Registered AD post on the
same day, which happened to be a Friday. On the next working day the
petitioner college also submitted the Essentiality Certificate by hand to the
respondent. By a letter dated 24.4.2012, addressed to Mamlatdar, Shihor
i.e. the area where the petitioner college is situated, the respondent while
enclosing copies of ownership and possession of land issued by the
President, Shihor, Taluka Panchayat and Certificate dated 23.10.2008 and
copy of the Essentiality Certificate dated 13.4.2012 by State of Gujarat to
the petitioner college requested the Mamlatdar to confirm the authority of
the aforesaid document and clarify Point 3 of the Essentiality Certificate
dated 13.4.2012. Point 3 of the condition of certificate reads as under:
"3. The trust has to resolve the issue of land or related to land if
any, with Revenue Department of State by 31.5.2012."
7. According to the petition, since there was no impending dispute with
respect to the land the petitioners took up issue with the State
Government. The State Government issued a fresh essentiality certificate
on 25.4.2012. Petitioners were also called upon by the Medical Council of
India to submit certain documents, which were submitted by the
petitioners immediately. By a letter dated 31.5.2012 issued by the Medical
Council of India petitioner was informed that inspection of petitioner‟s
college would be conducted on 4/5.6.2012. On 4/5.6.2012 one of the
assessors, Mr.Mohapatra, reached the petitioner college on 9.15 a.m. and
informed the Chairman that they had received an anonymous letter,
addressed to the Director, CBI, with copy to all the assessors. After the
other assessors arrived, all the assessors had a long closed door meeting.
After the meeting the assessors conveyed their inability to inspect the
petitioner college in view of the anonymous letter, however, after the
assessors spoke to the officers of the Medical Council of India they
inspected the college. By a letter dated 19.6.2012 the Medical Council of
India informed the petitioner college that the assessment report of the
assessors, who inspected the petitioner college on 4/5.6.2012, had been
considered by the respondent in their meeting held on 14.6.2012 and in
view of the deficiencies the respondent decided not to approve the scheme
for establishment of the petitioner college. Liberty, however, was granted
to the petitioner to approach the respondent for personal hearing on
21.6.2012 with prior appointment. In the personal hearing granted the
petitioners brought to the notice of the respondent that the so called
deficiencies did not exist which was clear from the letter dated 21.6.2012
which dealt with each of the alleged deficiency. In the hearing the
petitioners was advised to deposit the following documents:
i. Form 16A for the faculty;
ii. Affidavit of salary paid for May, 2012; and
iii. Bank certificate stating salary paid from January, 2012, till May,
2012.
8. On 22.6.2012 petitioners submitted the aforesaid documents to the
respondent. On 25.6.2012 a surprise inspection was conducted by the
respondent of petitioner no.1 college. By an email dated 30.6.2012
respondent informed the college that they had not submitted documents,
sought by the respondent on 21.6.2012 and the following deficiencies
persisted and in view thereof respondent decided not to approve the
scheme of establishment of college.
a) The deficiencies in terms of Clinical material persist.
b) The continuous presence of Nursing Staff in the teaching
hospital is doubtful.
c) There is discrepancy between the information furnished by the
college regarding the teaching and other staff and the faculty
staff actually present, as the college authorities have failed to
provide the data to support their claim.
d) The foregoing does not support the evidence of continuous
presence of medical teachers/staff in this college.
9. It is the case of the petitioners that all the documents sought by the
respondent have been submitted and further the alleged deficiencies do
not exist.
10. Learned senior counsel appearing on behalf of the petitioners contends
that the impugned action of the respondent is contrary to law and if it is
allowed to stand it would result in serious miscarriage of justice. Attention
of this Court is drawn to the tabular statement, which form part of the
grounds, to show that the alleged deficiencies existed on 4/5.6.2012 had
been removed. It is next contended that after the second inspection was
carried out on 25.6.2012 the assessor sent a letter dated 25.6.2012 to the
respondent. None of the reasons mentioned in the Assessment Form, form
part of the deficiencies mentioned in the letter dated 25.6.2012. Since in
the hearing held on 21.6.2012 petitioner had clarified/explained a number
of aspects, which do not find mention in the verification report by the
assessors dated 25.6.2012. This is for the reason that the alleged
deficiencies did not remain in existence after the grant of hearing on
21.6.2012. It is further contended that the deficiencies mentioned in the
assessment report also do not form part of the impugned order dated
30.6.2012. Thus the reliance upon the assessment report is completely
misplaced. It is also contended that it is not in dispute that the petitioners
had paid salary to its staff for the month of May, 2012, and thus the
petitioners have fulfilled the criteria laid down.
11. Learned senior counsel for the petitioner submits that there is no
requirement by the respondent requiring a college to employ teachers,
residents and other staff needed for the purpose of teaching any time
before it has granted permission and, thus, the respondent cannot ask for
the details for the last four months. Senior counsel further submits that the
appointment of teaching staff, residents, etc., employed even a day prior
to inspection for the purpose of grant of letter of permission for admission
to the first batch of MBBS students would suffice under the Regulations.
Senior counsel has strongly argued before this Court that the so called
deficiencies, which have been pointed out by respondent, do not exist. It
is also submitted that in any case the deficiencies, which have been
pointed out, are vague and without any application of mind.
12. It is also submitted by learned senior counsel for the petitioners that the
assessors in col. No.7 of the letter dated 25.5.2012 have stated that "the
quality of patients admitted were controversial", however in Clause 2 it is
stated that "there is also mismatch between the investigations done and
OPD attendance as well as IPD shown in the hospital". Senior counsel
further submits that no details were provided by the respondent with
regard to patients who were controversial. Further there are not particulars
of any alleged mismatch in the OPD attendance or attendance in the IPD.
Thus, these objections cannot be the basis of rejecting the petitioners‟
affiliation.
13. Senior counsel for the petitioner has placed reliance on B.D. Gupta v.
State of Karnataka, reported at 1973 (3) SCC 149 in support of his
submission that in case the show cause notice merely states in vague
general terms that the applicant‟s reply to the charges and allegations was
unsatisfactory, it is to be rejected. Para 9 of the judgment reads as under:
"The only ground on which the Government proposed to censure
the appellant is the fact that the appellant's explanation dated 18
December 1956 in reply to the statement of charges and allegations
had been found unsatisfactory by Government. By the expression
"Charges, and allegations" in this "Show Cause ,notice", reference
obviously is to the letter of 22 October 1956. That, letter, it will be
remembered, contains two charges, namely, Charge 1 (a) and
Charge 1(b). The appellant's explanation of 18 December 1956
which is said to have been found unsatisfactory by Government
was a reply not only to Charge 1 (a) but also to Charge 1(b) of these
two charges, so far as Charge 1 (a) is ,concerned the appellant had
been completely exonerated in October, 1958. There is nothing,
however, in the "Show Cause notice" of 26 October 1966 to
indicate clearly that the dissatisfaction of Government with the
appellant's reply of 18 December 1956 had nothing to do with
Charge 1 (a). The "Show Cause notice" merely states in vague
general terms that the appellant's 'reply to the charges and
allegations was unsatisfactory. Even if 'we were to assume, though
there is no reasonable ground for this assumption, that Government
did not have in mind the contents of Charge 1 (a) while serving this
"Show Cause notice", there is nothing in the "Show Cause notice"
to give any indication that the particular allegations regarding
which the appellant had failed to furnish a satisfactory explanation
were referable only to ,Charge 1(b). The notice is vague on other
grounds as well. As one reads the first paragraph of the notice, the
questions that at once assail ones mind are many: In what way was
the explanation of the appellant unsatisfactory ? Which part of the
appellant's explanation was so unsatisfactory ? On what materials
did the Government think that the appellant's explanation was
unsatisfactory. It is to our mind essential for a "Show Cause notice"
to- indicate the precise scope of the notice and also to indicate the
points on which the officer concerned is expected to give a reply.
We have no manner of doubt that the "Show Cause notice" in the
instant case did not give the appellant any real ,opportunity to
defend himself against the complaint that his previous explanation
of 18 December 1956 had been unsatisfactory. 'The appellant did
not, therefore, get any chance at all to show ,that he did not deserve
a censure upon his conduct."
14. Reliance is also placed by senior counsel for the petitioner on a decision
rendered by a Division Bench of Karnataka High Court titled as M.V.J.
Medical College and Research Hospital v. Union of India, W.P.(C)
27771/2011, in support of his plea that while scrutinizing the inspection
report prepared by the respondent the deficiencies did not come in the
way of first year MBBS course and the same were curable and the
permission should not be withheld.
15. Strong reliance is also placed by senior counsel for the petitioners in the
case of Al-karim Educational Trust & Another v. State of Bihar and
Others, reported at (1996) 8 SCC 330, more particularly paras 11 and 12,
which read as under:
11. In the matter of grant of affiliation, it is ordinarily for the State
Government after consulting the Medical council of India to arrive
at a decision. However, if it is found that the affiliation is being
withheld unreasonably or the decision is being prolonged for one
reason or the other, this Court would, though reluctantly, be
constrained to exercise jurisdiction. We must make it clear that we
are not diluting the importance of fulfilling the essential pre-
requisite set by the Medical Council before granting recognition.
The facts of this case are very special and exceptional. In the
present case, we take note of the following aspects:
(a) The appellant institution was granted temporary
affiliation nearly 6 years ago (29.12.1989).
(b) More than three years ago, (on 16.7.1992) this Court
directed that students may be admitted and permitted to take
examination, subject to certain conditions and this has been
so done.
(c) In view of the earlier orders of this that affiliation should
be granted to the appellants.
(d) On more than three occasions, this Court, after perusal of
the affidavits of the parties and report of the concerned
authorities about the deficiencies pointed out, directed time-
bound inspections, by Medical Council of India, along with
other authorities bearing in mind that we are concerned with
the post establishment stage.
(e) At one stage, it came to light that the original deficiencies
having been removed, new or further deficiencies were
pointed out by the Medical Council of India, which were
ordered by this Court to be removed.
(f)Finally, the appellants filed a tabular statement along with
an affidavit dated 4.9.1995, stating that even the new
deficiencies pointed out have been removed and the
averments in that behalf stand uncontradicted.
(g) The appellants, claim to be a minority institution and the
difficulties/ or even the imponderables to start a new
institution, cannot be gainsaid. To insist on fulfilling all
requirements, at a stretch in modern conditions, is not a
practical proposition and ordinarily, only those aspects or
requirements, which in the minimal will give a good start for
effectively imparting education, with ancilliary requisites
may be considered sufficient, in the extra-ordinary
circumstances of this case.
(h) It is impractical to insist, for a fool proof or absolute
adherence to all requirements without regard to their
importance or relevance, for the purpose of imparting
education, in a practical way, especially because the
institution has begun to function, students admitted to
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.
(k) Lapse of time and the turn of events call for urgent action
and any delay on that score will entail untold hardship to the
students and the institution.
12. In the totality of the circumstances disclosed in the case and
having regard to the fact that at each stage new deficiencies are
being pointed out, the latest being the report dated 28.6.95
(explained by the subsequent affidavit of the appellants dated
4.9.95), we are satisfied beyond any manner of doubt, that the
deficiencies have been substantially complied with and minor
deficiencies pointed out in the last mentioned report of 28.6.95 are
not such as to permit withholding of the affiliation to which the
appellants' institution is entitled, From the manner in which the
deficiencies have been pointed out from time to time ,each time the
old deficiencies are shown to have been removed, new deficiencies
are shown, gives the impression that the affiliation is unnecessarily
delayed. For the removal, of the minor deficiencies pointed out in
the report of 28.6.95, a compliance affidavit dated 4.9.1995 is filed.
Once the institution feels secure on the question of affiliation, we
have no doubt that these minor deficiencies, if they exist, shall be
taken care of by those in charge of the institution. For taking such
further steps, the grant of affiliation need not wait. We make this
position clear. The steps for the grant of affiliation to the appellants'
institution may now be expedited and we direct the respondents to
issue the necessary orders without loss of time. The appeal is
disposed of accordingly. In the facts and circumstances of the case,
we make no order as to costs."
16. Per contra, Mr.Amit Kumar, learned counsel for respondent, submits that
under the provisions of the Indian Medical Council Act, 1956, great
responsibility has been bestowed on the Medical Council of India in
discharging its duty for the maintenance of high standards of medical
education in the country. In support of this plea, learned counsel for the
respondent has drawn the attention of the Court to the observations made
by the Supreme Court of India in the case of State of Kerala v. T.P.
Roshna, reported at (1979) SCC 580. Para 16 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 invigilation by
the Medical Council to prevent sub-standard entrance qualifications
for medical courses...."
17. Mr.Kumar further while relying upon the case of Medical Council of
India v. State of Karnataka, reported at (1998) 6 SCC 131, more
particularly para 29, has submitted that the Apex Court has emphasized
the need to have properly trained students and also students should be
admitted as per the Regulations of MCI. Para 29 reads as under:
"A medical student requires gruelling study and that can be done
only if proper facilities are available in a medical college and
hospital attached to it has to be well equipped and 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
being and is not found wanting in any way. 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. The Medical Council, in all fairness, does not wish to
invalidate the admissions made in excess of that fixed by it and
does not wish to take any action of withdrawing recognition of the
medical colleges violating the regulation. Henceforth, however,
these medical colleges must restrict the number of admissions fixed
by the Medical Council. After the insertion of Sections 10A, 10B
and 10C in the Medical Council Act, the Medical Council has
framed regulations with the previous approval of the Central
Government which were published in the Gazette of India dated
September 29, 1993 (though the notification is dated September 20,
1993). Any medical college or institution which wishes to increase
the admission capacity in MBBS/higher courses (including
diploma/degree/higher specialities) has to apply to the Central
Government for the permission along with the permission of the
State Government and that of the university with which it is
affiliated and in conformity with the regulations framed by the
Medical Council. Only the medical college or institution which is
recognised by the Medical Council can so apply."
18. Reliance is also placed by learned counsel for the respondent on Section
10A of Indian Medical Council Act, 1956, more particularly 10A (7) (a)
to(c):
"10A Permission for establishment of new medical college, new
course of study:
(7) The council, while making its recommendations under clause
(b) of sub-section (3) and the Central Government, while passing an
order, either approving or disapproving the scheme under sub-
section (4), shall have due regard to the following factors, namely:
(a) Whether the proposed medical college or the existing
medical college seeking to open a new or higher course of
study or training would be in a position to offer the
minimum standards of medical education as prescribed by
the Council under Section 19A or, as the case may be,
under Section 20 in the case of post-graduate medical
education;
(b) Whether the person seeking to establish a medical college
or the existing medical college seeking to open a new or
higher course of study or training or to increase its
admission capacity has adequate financial resources;
(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 of study or training or
accommodating the increased admission capacity have
been provided or would be provided within the time-limit
specified in the scheme."
19. Mr.Kumar submits that as per Section 10A (7) of the Indian Medical
Council Act a duty is cast on the authority to form an opinion with regard
to capacity of a college to provide necessary faculties in respect of staff,
equipment, accommodation, training and other facilities to ensure proper
functioning of the medical college or increase of admission capacity.
Based on Section 19(a) (viii) learned counsel for the respondent contends
that there is a subjective satisfaction of the expert body regarding the
capability of the medical college seeking renewal of permission.
20. Learned counsel for the respondent submits that the Apex Court has held
in a number of judgments that the scope of judicial review is very limited
in the matters relating to academic nature. In support of this submission,
counsel has relied upon Chairman J&K State Board of Education v.
Feyaz Ahmed Malik, reported at (2003) 3 SCC 59. Relevant portion of
which reads as under:
" ... The Hon‟ble Supreme Court while stressing on the
importance of the functions of the expert body observed that the
expert body consisted of persons coming from different walks of
life who were engaged in or interested in the field of education and
had wide experience and were entrusted with the duty of
maintaining higher standards of education. The decision of such an
expert body should be given due weightage by Courts.
21. Learned counsel for the respondent submits that the Supreme Court of
India in a number of judgments has held that the scope of judicial review
is very limited in matters relating to academic nature. In support of this
submission, counsel for the respondent has relied upon the following
decisions:
(i) In the case of Medical Council of India v. Sarang, reported
at (2001) 8 SCC 427, the Apex Court has reiterated the legal
principle that the court should not normally interfere or
interpret the rules and should instead leave the matter to the
experts in the field.
(ii) In the case of B.C. Mylarappa alias Dr. Chikkamylarappa v.
Dr. R. Venkatasubbaiah, reported at (2008) 14 SCC 306,
wherein the Apex Court has again reiterated the legal
principles and observed regarding importance of the
recommendations made by the expert committees.
(iii) In the case of Rajbir Singh Dalal (Dr.) v. Chaudhari Devi
Lal University, Sirsa, reported at (2008) 9 SCC 284, wherein
the Court has held that it is not appropriate for the Supreme
Court to sit in appeal over the opinion of the experts.
(iv) In the case of All India Council for Technical Education v.
Surinder Kumar Dhawan, reported at (2009) 11 SCC 726,
wherein it is held that it is a rule of prudence that courts
should hesitate to dislodge decisions of academic bodies.
22. Learned counsel for the respondent submits that the above position of law
has been time and again reiterated by the Supreme Court in various
judgments including the judgment rendered on 11.1.2012 in Medical
Council of India v. JSS Medical College, AIR 2012 SC 726. Counsel
further submits that in the case of Medical Council of India v. Rama
Medical College Hospital & Research Centre, reported at 2012 (6)
SCALE 219, it has been held in para 11 of the judgment that „further
admissions shall not be made at any stage unless the requirements of the
Council are fulfilled.". Counsel has next relied upon in the case of Union
of India v. Era Educational Trust, reported at (2000) 5 SCC 57 wherein
the Apex Court has categorically held that in case the expert body has
rejected a case on the basis of deficiencies pointed out in the educational
institution the Courts should refrain from entering in the shoes of experts
and grant permission on their own. Relevant portion reads as under:
"In similar set of circumstances, in Civil Appeal Nos.5045 and
5046 of 1998 in Medical Council of India, New Delhi v. State of
H.P. and Another, this Court on 16.2.2000 observed that since the
refusal was based on deficiencies for running a Medical College, it
would have been appropriate for the High Court to have remitted
the matter to the Medical Council of India or the Union of India for
reconsideration, even if it was of the opinion that the order of the
Medical Council of India deserved to be set aside and the Court
ought not to have issued a writ of Mandamus directing grant of
permission."
23. Counsel for the respondent further submits that even in cases where
students had continued their studies for more than one year the Apex
Court did not recognize such admissions. (See Andhra Pradesh Christian
Medical Educational Scoiety vs. Government of Andhra Pradesh 1986 (2)
SCC 667) . Counsel also contends that the Apex Court had cautioned
grant of admissions by way of interim orders. It has been observed in the
case of Krishna Priya Ganguly & Ors. v. University of Lucknow 1984 (1)
SCC 307 that provisional admissions should not be granted as a matter of
course and on the mere asking unless the Court is fully satisfied that the
petitioner has a cast iron case which is bound to succeed or the error is so
gross or apparent that no other conclusion is possible.
24. Relying on the aforesaid judgments learned counsel for the respondent
thus prays that a writ of mandamus cannot be issued directing grant of
permission to the petitioners and at best the matter can be remanded back.
(See Dental Council of India v. State of Himachal Pradesh 2000 (5) SCC
63).
25. On the merits of the matter Mr.Gupta, learned senior counsel for the
respondent submits that the petitioners were denied renewal of permission
at the stage of renewal of permission for admission of the second batch on
the ground of various deficiencies. Counsel contends that the assessment
of the petitioner Medical College was carried out by experts in the field
on two occasions i.e. on 4th and 5th June 2012 and thereafter a surprise
inspection was also carried out on 25th June 2012 to verify the compliance
which the petitioners submitted on 23rd June 2012 in respect of
deficiencies pointed out in the earlier inspections of 4 th and 5t June 2012.
Mr.Gupta next contends that on both the occasions it was found that there
are gross deficiencies in the availability of clinical material i.e. patients
and the data provided by the petitioners was inflated. Deficiencies were
also found in infrastructure and having regard to the same permission
could not have been granted especially a medical college to teach and
train MBBS students. Reliance is placed on the report of the assessors as
per which the attendance of patients in the OPD was scanty with only 30
to 40 patients. The plaster room was not utilized and the resident
available in the plaster room was from the Medicine department. There
was no separate space for casualty for obstetrics and gynaecology patients
besides the emergency OT was hardly used. With regard to the indoor
wards there was no files maintained for the patients admitted and in
surgery wards all female patients were 20 to 25 years of age who
complained of headache, abdominal pain with OPD slips and no indoor
files were available and moreover on the next day of the inspection the
wards were found to be empty.
26. Reliance is also placed by the learned senior counsel on the assessment
report wherein it has been observed that the wards were having less than
50% of the bed occupancy in most of the wards and it was further
observed "it seems that most of the patients were hired for the inspection
purpose." It was also recorded that most of those patients admitted on 3 rd
June 2012 i.e. a date prior to the date of the inspection i.e. 4 th June 2012
and thus the data of patients provided by the petitioners appeared inflated
and records of those patients were not available in the wards. Mr.Gupta
also contends that as per the data provided by the petitioners 7 to 8 major
surgical operations and 8 to 11 minor surgical operations were carried out
daily at an average. Counsel submits that this data provided by the
petitioners was not reliable as when the blood bank of the hospital was
inspected on 4th/5th June 2012 it was found that letter of permission for
storage of blood was received by the petitioners only on 16th May 2012
and not a single bag of blood had been issued from the blood bank since
then. It is thus contended that having regard to the number of surgical
procedures carried out daily as per the petitioners it seemed highly
unlikely that with the number of surgeries not a single bag of blood was
used. Deficiencies were found in the infrastructure available as well. It
was observed that the training rooms for medical students were
insufficient in number and space. In the OPD section there were only 4
demonstration rooms with insufficient area and furniture. There was no
indoor casualty for patients of obstetrics and gynaecology and the
emergency operation theatre seemed hardly used. The Department of ENT
and its indoor ward was situated in the corridor of the hospital, besides the
residential quarters for the staff of college and the hospital were also
found to be very old and in an unlivable condition, besides most doctors
were living approximately 30 km away from the hospital. There was also
shortage of manpower i.e. nursing staff in the hospital. No female staff
nurses were available and the male nurses available were very few and
deficient in the terms of the norms of the Medical Council of India (MCI).
Moreover, the credentials of the available male nurses were also not
verified. It has also been strongly urged before this Court that as proof of
salary paid to the faculty members the Dean of the petitioners produced
salary certificates for the month of May 2012. However, no TDS
certificates/Form 16A were produced in respect of 90% of the faculty
members. The assessment team had also received complaints of non-
payment of salary/stipend from the resident doctors recorded by the
petitioners about two months back. Mr.Gupta also submits that the
petitioners had submitted its compliance report on 23 rd June 2012 and had
also appeared before the Board of Governors for a personal hearing when
the deficiencies were denied and it was further claimed that deficiencies,
if any, stood rectified. Counsel submits that to verify the claims of the
petitioners a surprise inspection was carried out by the assessors
appointed by the MCI on 25th June 2012 and it was found that the
deficiencies pointed out earlier were still in existence and not rectified by
the petitioners and in view thereof the Board of Governors decided not to
approve the scheme for establishing of medical college for the academic
year 2012-2013. Counsel for the respondent further contends that the
Board of Governors while passing the impugned order of 30th June 2012
considered all the relevant information, documents submitted by the
petitioners, oral submissions at the time of hearing to reports of the
assessors and came to the conclusion that the deficiencies in the clinical
material i.e. OPD, IPD and the surgeries still persisted and had not been
rectified. The Board of Governors also reached a conclusion that the
details provided in respect of Nursing Staff and Faculty members
indicated that the employment and the presence of the staff was not
continuous and was merely shown as employed for the purpose of
inspection. It is also contended that it was observed in the impugned
order that the bank statements submitted from State Bank of India by the
petitioners dated 22nd June 2012 certified that the petitioner had paid
salary to their employees for the months of January to May 2012 and
further an amount of Rs.38,77,200/- was paid in the month of May 2012.
Whereas according to the affidavit submitted by the college authorities it
had been shown that 116 teachers have been paid salary by different
cheque numbers. In view thereof, the Board of Governors concluded that
the salary to teachers did not match with the information furnished by the
bank although the amount shown as total amount paid to 116 teachers
matched with the bank statement.
27. I have heard learned counsel for the parties and considered their rival
submissions. By the present writ petition, the petitioners have sought
quashing of email dated 30.6.2012 whereby the petitioners‟ application
for establishment of a college from the academic year 2012-2013 has been
rejected. A writ of mandamus is also sought requiring the respondent to
forthwith grant letter of permission to the petitioner no.1 college to admit
students in the first year MBBS Course from the academic year 2012-
2013 as per the criteria laid down by the Medical Council of India for
admission of first batch of MBBS Course.
28. The submission of learned senior counsel for the petitioners is that the
action of the respondent is contrary to the law laid down by the Medical
Council of India and in case it is allowed to stand it would lead to a
serious miscarriage of justice. It is the case of the petitioners that all the
deficiencies pointed out by the respondent, pursuant to the inspection
carried out on 4.6.2012 and 5.6.2012, stand removed and, thus, there was
no reason for the respondent to have rejected the application of the
petitioners for establishment of a college for the academic session 2012-
2013. It is further the case of the petitioner that the opportunity of hearing
granted to the petitioners was neither genuine nor meaningful and the
decision taken by the respondent was in a pre-decided manner. In support
of his plea that where the deficiencies would not come in the way of the
first year MBBS course and the same are curable the permission should
not be declined to the institute, reliance has been placed by learned senior
counsel for the petitioners in the case of M.V.J. Medical College and
Research Hospital (supra). Strong reliance has also been placed by senior
counsel for the petitioner in the case of Al-karim Educational Trust &
Another (supra) in support of his argument that the Supreme Court of
India has recognized the fact that it is impractical to insist for a fool proof
or absolute adherence to all requirements without regard to their
importance or relevance, for the purpose of imparting education in a
practical way.
29. It is also the case of the petitioners that the petitioners have a established
and fully functional 300 bedded hospital with necessary infrastructure
facilities and also there is no regulation of the respondent requiring a
college to employ teachers, residents and other staff needed for the
purposes of teaching any time before it is granted letter of permission to
enable it to make admission of students in the MBBS course and even
after appointment of teaching staff, residents, etc., even a day prior to the
date of inspection would be suffice under the Regulations.
30. It has been strongly urged before this Court by learned senior counsel
appearing on behalf of the petitioners that according to the MCI itself, the
MCI Regulations require the existences of a hospital where the teaching
staff, residents, etc., are required for that purpose, which should be
available only after letter of permission is granted and on that stage the
college becomes entitled to make admission of students in MBBS
teaching and not for a period prior thereto.
31. Present petition has been vehemently opposed by counsel for the
respondent. It is the stand of the respondent that the Indian Medical
Council Act, 1956, has cast a great responsibility on the Medical Council
of India in discharging its duty for maintenance of high standards of
Medical Education in the country.
32. Mr.Gupta, learned counsel for the respondent, has placed reliance on
various judgments to show that the Apex Court has emphasized the need
to have properly trained students and students should be admitted only as
per the Regulations of the MCI. It is further submitted by Mr.Gupta that
the MCI has been bestowed with the role to prescribe a minimum standard
of medical education and also the power to supervise the qualifications or
eligibility standards for admissions into medical institutions. Mr.Gupta
has strongly urged before this Court that the scope of judicial review is
very limited in matters relating to academic nature. Reliance has been
placed by Mr.Gupta on Chairman J&K State Board of Education
(supra); Medical Council of India v. Sarang, (supra); B.C. Mylarappa
alias Dr. Chikkamylarappa (supra); Rajbir Singh Dalal (Dr.) (supra);
and All India Council for Technical Education (supra).
33. It is also contended by Mr.Gupta umar, learned counsel for the
respondent, that having regard to the fact that the inspections are carried
out by the experts in their field, the Court should not sit in appeal over the
opinion of the experts.
34. On the merits of the matter, Mr.Gupta submits that the inspection of the
college was carried out on 4.6.2012 and 5.6.2012 and upon inspection and
on the basis of the assessment report submitted by the experts the Medical
Council of India informed the petitioner that in view of the deficiencies it
was decided not to approve the scheme of establishment of petitioner no.1
college. Counsel further contends that the petitioners were granted a
personal hearing and thereafter a surprise inspection was carried out and
on the basis of the surprise inspection the final order of rejection was
issued to the petitioners. Mr.Gupta also submits that upon physical
verification the Medical Council of India was not satisfied with the
genuineness of the faculty members produced by the petitioners before the
assessment team. The respondent was also not satisfied as the petitioners
did not furnish the bank account number from which the amount of salary
was disbursed and the bank statement provided by the college only
showed withdrawal of a lump sum amount by the college. It is further
submitted that the petitioners have admitted that they have employed
teachers soon before the inspection. It is also submitted by Mr.Gupta that
learned senior counsel for the petitioners has only magnified the minor
deficiencies such as presence of wooden stools, which have now been
replaced with plastic chairs, renovation of dilapidated quarters and
shifting of ENT wards from a corridor, however, the major deficiencies of
clinical material i.e. patients, staff strength, etc. did not repose any
confidence and the assessment team was of the opinion that admission of
fake patients was made to show inflated bed occupancy, there was non-
maintenance of records of IPD patients, non production of proof of
employment, genuineness of the faculty members produced by the
petitioners and shortage of nursing staff having been rectified. It is next
submitted that reliance placed by learned senior counsel for the petitioner
in the case of Mohinder Singh Gill v. Chief Election Commissioner,
reported as (1978) 1 SCC 405 is misplaced as the Supreme Court of India
in the case of Chairman, All India Railway Recruitment Board &
Another v. K. Shyam Kumar, reported at (2010) 6 SCC 614 has clarified
the scope of the judgment rendered by the Supreme Court in the case of
Mohinder Singh Gill (supra) in the following words:
"38. We are also of the view that the High Court has committed a
grave error in taking the view that the order of the Board could be
judged only on the basis of the reasons stated in the impugned order
based on the report of vigilance and not on the subsequent materials
furnished by the CBI. Possibly, the High Court had in mind the
constitution bench judgment of this Court in Mohinder Singh Gill
and Anr. Vs. The Chief Election Commissioner, New Delhi and
Anr. (1978) 1 SCC 405.
39. We are of the view that the decision maker can always rely
upon subsequent materials to support the decision already taken
when larger public interest is involved. This Court in Madhyamic
Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti and
Others, (1998) 9 SCC 236 found no irregularity in placing reliance
on a subsequent report to sustain the cancellation of the
examination conducted where there were serious allegations of
mass copying. The principle laid down in Mohinder Singh Gill‟s
case is not applicable where larger public interest is involved and in
such situations, additional grounds can be looked into to examine
the validity of an order."
35. Mr.Gupta, learned counsel for the respondent, submits that the regulations
require existence of a running hospital with at least 300 beds and it is
impossible to run such a hospital without Doctors, staff and Residents.
Further as per the criteria laid down it is for the MCI to be satisfied with
regard to the quality of infrastructure, facilities, faculties, clinical
material, etc. The MCI is also duty bound to determine that the quantity
projected by the medical college is also qualitatively justified and
genuine.
36. Along with the writ petition, the petitioners have annexed photographs of
faculty members, hospital with persons waiting, to show that it is a fully
functional hospital.
37. There is no quarrel to the proposition that the minor deficiencies should
not come in the way for establishing a medical college. In the case of Al-
karim Educational Trust & Another (supra) the Court had observed as
under:
"(h) It is impractical to insist, for a fool proof or absolute adherence
to all requirements without regard to their importance or relevance,
for the purpose of imparting education, in a practical way,
especially because the institution has begun to function, students
admitted to 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."
38. The observations of the Apex Court cannot be read in isolation. The aim
and object of the Apex Court is that minor deficiencies may be
overlooked and time may be granted to rectify the same. It has also been
observed by the Apex Court that the MCI should not insist for a fool
proof or absolute adherence to all the requirements without regard to their
importance or relevance for the purpose of imparting education in a
practical way as in the present case wooden stools and dilapidated
quarters (the deficiencies as pointed out by the MCI) would certainly not
come in the way of imparting education to the students but in case there is
a shortage of Doctors, patients, faculty, nursing staff or in case the experts
are of the view that it is not a fully functional hospital or the infrastructure
in terms of the manpower and patients available at the time of inspection
do not repose confidence then the respondent would be well within its
right not to grant permission to establish a medical college.
39. While rejecting the request of the petitioners the following factors, as
mentioned in the order dated 30.6.2012 passed by the respondent, have
been pointed out for rejecting the permission:
"Based upon the foregoing, the Board of Governors in their
meeting dt 27.6.12 concluded that:
a) The deficiencies in terms of Clinical material persist.
b) The continuous presence of Nursing staff in the teaching
hospital is doubtful.
c) There is discrepancy between the information furnished by
the college regarding the teaching and other staff and the
faculty staff actually present, as the college authorities have
failed to provide the data to support their claim.
d) The foregoing does not support the evidence of continuous
presence of medical teachers/staff in this college."
40. While the minor deficiencies can surely be overlooked and time can be
granted to rectify and cure such deficiencies the Court is extremely
reluctant to differ or sit in appeal over the decision taken by the experts as
has been laid down by the Apex Court in a large number of decisions. The
assessment report, which has been placed on record, has observed that the
attendance of the patients was scanty i.e. only 30 to 40 patients were
present. Surely a 300 bedded hospital would have more than 30 to 40
patients at the OPD.
41. The Court cannot lose track of another observation, which goes to the
very route of the matter, that the indoor patients, which were females
between 20-25 years of age, having minor complaint of headache and
abdominal pain. For the beds occupied by them they had only OPD slips
and the male nurses present there had not made any admission entry in the
Admission Register. On the following day of the inspection the wards
were almost empty. It seems that most of the patients were hired only for
the purposes of showing headcounts to the inspection team and they were
admitted on 3.6.2012 a day prior to the date of inspection. There is no
explanation as to how only female patients between the age of 20-25 years
were admitted without their names in the admission register and with
OPD slips complaining either headache or abdominal paid, which seems
to be the simplest answer, a hired patient could have given i.e. the
headache or stomach ache. The data provided by the petitioners reveals
that 7-8 major surgical operations and 8-11 minor surgical operations
were being carried out. During the inspection it was found that permission
for storage of blood was received by the petitioners only on 16.5.2012 and
not a single blood bag had been issued by the petitioner from the blood
bank till the date of inspection. Another aspect, which remains
unexplained as it is highly improbable that during such a large number of
surgeries not even a single blood bag was used. It was also observed that
the emergency operation theatre of the hospital seems hardly to have been
used and in the absence of livable quarters for the staff most of the
Doctors were staying 30 kms away from the hospital. There is also no
explanation as to why not a single female nurse was available at the time
of inspection nor could the credentials of the male staff verified. The
experts were also not satisfied with the salary certificates and the
assessment team had also received complaints of the non-payment of
salary/stipend from the Residents Doctors, who were recruited by the
petitioners about two months back. There is also no clarity with regard to
the amount of salary paid. According to the petitioners the salary had been
paid to 116 teachers from different cheques, however, the bank statement
of the petitioners shows that the amount of Rs.3,77,200/- was paid.
42. The Court cannot lose track of the fact that the experts, who have
inspected the college, must be satisfied with the criteria as laid down by
the MCI for granting permission to run a medical college, and the
facilities, staff, infrastructure, patients are available and they shall not be
available only on the date of inspection.
43. I find no infirmity in the order dated 30.6.2012 passed by the respondent.
Accordingly, no grounds are made out. Writ petition and application are
dismissed. No costs.
G.S.SISTANI, J
MAY 03, 2012
msr
