Rkdf Medical College Hospital And ... vs Union Of India & Ors.
2015 Latest Caselaw 9619 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Judgment reserved on: 21.12.2015
%                                        Judgment delivered on: 29.12.2015

+                   WP(C) 9663/2015

RKDF MEDICAL COLLEGE HOSPITAL AND
RESEARCH CENTRE & ANR.                                         ..... Petitioners

                    Versus

UNION OF INDIA & ORS.                                         ..... Respondents

Advocates who appeared in this case:

For the Petitioners : Mr. Nidhesh Gupta, Sr. Advocate with Mr Amalpushp Shroti and Mr Somesh Chandra Jha, Advocates For the Respondents: Mr. Dev P. Bhardwaj and Mr Vidhur Mohan, Advocates for R-1.

Mr T. Singhdev, Ms Puja Sarkar, Ms Biakthansanghi & Mr Sanjay Kumar, Advocates for R-2.

Mr Arjun Garg and Mr Manish Yadav, Advocates for R-4.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J WP(C) 9663/2015 & CM No. 23066/2015 (Stay) PREFATORY FACTS

1. This is a writ petition whereby, the petitioners, seek a direction qua the respondents to renew permission for admission to the second batch for MBBS Course (comprising of 150 students), for the academic year 2015-2016. 1.1 In respect of the above, the impediment in the way of the petitioners, is the final order of the first respondent i.e. Union of India (hereafter referred to as the Central Government), dated 28.09.2015. The Central Government, in reaching its conclusion (which is, that it would not renew permission for admission to second batch for MBBS course, with respect to the academic year

2015-2016), has taken into account the recommendation of respondent no.2 i.e. the Medical Council of India (in short the MCI), as also, the recommendations of its own "Hearing Committee" (in short the Committee). It is, therefore, pertinent to note that the MCI's recommendations to the Central Government are contained in its communication dated 24.09.2015.

1.2 It is in on account of the above, that the petitioners, in addition to the prayer to which I have made a reference above, seek a direction from this court to quash the order of the Central Government dated 28.09.2015, and the recommendation of the MCI dated 24.09.2015.

2. Before I proceed further, I may record certain facts which transpired during the pendency of the writ petition. The petitioners had approached this court for the first time, on 09.10.2015, seeking urgent relief, as the last date for completing the admission process, at that point in time, according to them, was expiring on 10.10.2015. Due to the urgency expressed, the matter was taken up for hearing and a detailed interim order was passed by me on that very date i.e. 09.10.2015. The reasons, as to why I had passed the interim order are set out in the order itself, to which, I would make a brief reference in the latter part of my discussion as arguments had been advanced by both sides even at that point in time with regard to whether or not this writ petition survives in respect of the academic year 2015-2016.

3. Therefore, before I proceed further, let me cull out the events which preceded 09.10.2015, and those, which have followed the passing of the order on the said date.

3.1 Evidently, the petitioners moved for setting up a medical college; and accordingly, the Central Government, after compliance with the prescribed process, exercised its powers under Section 10A of the Indian Medical Council Act, 1956 (hereafter referred to as the IMC Act, 1956), and granted permission

qua the said purpose, on 09.07.2014.

3.2 Consequent thereto, on 19.09.2014, the petitioners, as required, applied for 1st renewal permission, qua 2nd batch, for academic year 2015-2016. 3.3 Resultantly, on 23-24.02.2015, the team of assessors deputed by MCI carried out an inspection vis-a-vis petitioner (i.e. the medical college) to ascertain as to whether or not it met the stipulated minimum standards for running a medical college. Consequently, an assessment report of even date i.e. 23-24.02.2015, was generated. The assessment report was considered by the Executive Committee of the MCI at its meeting held on 02.03.2015. 3.4 Based on the aforementioned assessment report, the Executive Committee of MCI, recommended to the Central Government, vide its communication dated 05.03.2015, that, renewal permission sought by the petitioners, ought to be declined. While doing so, MCI, also, decided to apply Regulation 8(3)(1)(a)1 and (d)2 of the Establishment of Medical College Regulations, 1999, as amended on 16.04.2010 (in short the 1999 Regulations), in petitioner no.1's case. As a result, MCI's Executive Committee recommended to the Central Government to decline petitioner no.1's request for renewal permission, not only, for the academic year 2015-2016, but also, for the academic year 2016-2017.

3.5 Parallelly, it appears the Ethics Committee of the MCI, on 25.03.2015, issued a notice to petitioner no.1, whereby, explanation was sought with regard to the experience certificates submitted by it, in respect of five faculty

(a) Colleges in the stage upto II renewal (i.e. Admission of third batch): If it is observed during any regular inspection of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 60%, such an institute will not be considered for renewal of permission in that Academic Year.

(d) Colleges which are found to have employed teachers with faked / forged documents: If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. degree / processing the applications for postgraduate courses for two Academic Years - i.e. that Academic Year and the next Academic Year also.

members. The allegation was, that the experience certificates submitted were fake.

3.6 In so far as the negative recommendation made by MCI qua renewal permission was concerned, the Central Government, issued a formal communication granting personal hearing to the petitioner no.1 in consonance with the provisions of Section 10(A)(4) of the IMC Act. Petitioner no.1 was given information in this behalf vide communication dated 31.03.2015. 3.7 As regards the issue concerning allegation of fake experience certificates of faculty members, the Ethics Committee, granted a hearing to the petitioners on 06.04.2015. I am told by counsels, that no precipitative action has been taken by the Ethics Committee.

3.8 However, in response to communication dated 31.03.2015, petitioner no.1 submitted a detailed reply, on 09.04.2015. This reply was in the nature of a compliance report seeking to meet the deficiencies pointed out in MCI's communication dated 05.03.2015 to the Central Government. 3.9 As a result of the aforesaid, the Central Government vide communication dated 17.04.2015, directed the MCI to review the case of petitioner no.1 under Regulation 7 of the 1999 Regulations. Pertinently, review was ordered by the Central Government not only in petitioner no.1's case, but also, qua other, similarly, circumstanced institutes, which numbered, 35 in all.

4. The MCI on its part took the stand, on 29.04.2015, that it would not review petitioner no.1's case without conducting an inspection. This stand was, apparently, taken by the MCI, as according to it, petitioner no.1's case fell within the ambit of Regulation 8(3)(1)(a) and (d) of the 1999 Regulations. 4.1 However, in petitioner no.1's case (as is evident from the record), MCI refused to comply with the directive of the Central Government dated 17.04.2015, calling for a review. The position taken, in this behalf, by the MCI,

was communicated to the Central Government vide its letter dated 11.05.2015. This position, the MCI took, based on a legal opinion rendered to it by a law officer.

4.2 The stand of the MCI, in sum, was that, because recourse had been taken, inter alia, to Regulation 8(3)(1)(d) of the 1999 Regulations, it was not obliged to process further, petitioner no.1's application for renewal. Consequently, the MCI reiterated its earlier recommendation, communicated to the Central Government, on 05.03.2015.

5. This approach of the MCI, propelled the petitioners to move the Madhya Pradesh High Court, by way of a writ petition under Article 226 of the Constitution. This writ petition was numbered as: WP No.7521/2015. A Division Bench of the Madhya Pradesh High Court, by way of an interim order dated 21.05.2015, directed the MCI to comply with the directive of the Central Government dated 17.04.2015. While issuing the order, the court, noticed the stand taken by MCI that the last date for making the recommendation, had already expired on 15.05.2015. The Bench, in this context, observed that according to it, prima facie, the last date for making the recommendation was 31.05.2015. The Bench, however, entered a caveat, while issuing the aforesaid direction, which was, that the exercise undertaken by the MCI, as ordered, would not create any equity in favour of petitioner no.1 and, shall be, subject to the final result in the writ petition.

6. The MCI, however, decided to challenge the interim order passed by the Division Bench of the Madhya Pradesh High Court, by way of a Special Leave Petition. The Special Leave Petition filed in this behalf was registered as: SLP No. 16454/2015; which was disposed of vide order dated 04.06.2015. The Supreme Court was of the view that the Division Bench of the Madhya Pradesh High Court, while issuing the impugned interim direction, had granted, in

substance, the final relief sought for in the writ petition and, therefore, such a direction, issued at an interim stage, was not in order.

6.1 Accordingly, while disposing of the SLP, it permitted the MCI to raise the pleas articulated therein, before the concerned High Court by moving an appropriate application, within a period of three (3) days. This direction appears to have been passed in view of the pleas raised by the MCI, before the Supreme Court, that there were various flaws noticed in the inspection carried out, and that, a recommendation could not be made in violation of Regulation 8(3)(1)(a) of the 1999 Regulation. Pertinently, reference to Regulation 8(3)(1)(d), which alludes to fake/ forged documents, was given up. 6.2 The Supreme Court thus, directed the High Court to decide the same as expeditiously as possible, though preferably, within a period of ten (10) days of its order.

6.3 For the purposes of completion of the narrative, it may be relevant to note that in the interregnum, on 28.05.2015, the Division Bench of the Madhya Pradesh High Court had directed the MCI to submit a compliance report in respect of the directions issued vide its earlier order dated 21.05.2015. This direction was, however, rendered inefficacious due to the order dated 04.06.2015, passed by the Supreme Court.

6.4 The Division Bench of the High Court, accordingly, took up the writ petition, for hearing and, disposed of the same vide order dated 01.07.2015. After a detailed discussion qua various submissions made before it, the Division Bench, issued the following operative directions in paragraph 40 and 41 of its judgement dated 01.07.2015:

".... 40. In view of the above, we set aside the impugned decision of MCI dated 29.04.2015 (Annexure P-12) as well as subsequent communication dated 11.05.2015 (Annexure P-14); and instead direct MCI to review/ assess the scheme for yearly

renewal of permission submitted by the petitioner college, in the light of the directions given by the Central Government vide communication dated 17.4.2015 (Annexure P-11). The respondent no. 2 shall expeditiously forward its recommendation report to the Central Government and preferably within one week from today to enable the Central Government to process the same further and take a final decision before the process of admission to medical course for academic year 2015-2016 commences after declaration of examination results of the entrance examination scheduled on 15.07.2015.

41. We also direct the MCI as well as the Central Government to consider the subject scheme submitted by the petitioner without being influenced by the communication dated 15.06.2015 issued under the signature of Under Secretary, Government of India, Ministry of Health and Family Welfare, which is produced alongwith the written submission of Respondent No.1, as we have construed that communication to be only a direction given that the petitioner college cannot enroll new students for the academic year 2015-2016 without formal permission issued by the Central Government in that behalf..."

7. Being aggrieved, the MCI, once again, approached the Supreme Court by way of a SLP; bearing No. 19513/2015. The Supreme Court, however, this time around vide order dated 08.09.2015, directed the MCI to comply with the directions issued by the Division Bench vide its judgement dated 01.07.2015. In sum, the MCI was directed to carry out an inspection vis-a-vis petitioner no.1 and submit its report to it, on or before 21.09.2015. The SLP was, accordingly, listed on 22.09.2015. Furthermore, the MCI was also directed to communicate, the order passed on that date, to the standing counsel of the Central Government. The Central Government was, consequently, directed to file its affidavit with the court on or before 22.09.2015.

7.1 Evidently, on 22.09.2015, when, the Supreme Court, took up the SLP for hearing it found that its direction to carry out an inspection and file a report with it on or before 21.09.2015, had not been complied with by MCI. The

MCI, recognizing the fact that it had been remiss in complying with the direction of the Supreme Court, conveyed, via its counsel that inspection would be carried out by 23.09.2015, and that, the report so generated, would reach the Central Government by 24.09.2015.

7.2 Accordingly, the Supreme Court, vide the very same order, directed the Central Government to give a hearing to the petitioners, on 26.09.2015, and thereafter, take a final decision in the matter by 28.09.2015. The Supreme Court though, having regard to the peculiar facts and circumstances of the case, extended the cut off date, which is ordinarily fixed as 30.09.2015, by a period of ten (10) days.

7.3 As indicated above, since a substantial part of the argument before me, has veered around inviolability of the cut-off date (i.e. 30.09.2015), it would be apposite to set out in verbatim the observations made by the Supreme Court in that behalf :

"..... From the aforesaid order it is made clear that the petitioner- MCI was directed by this court also to make inspection of the respondent-College and submit report in a sealed cover on 21.9.2015. This order has also not been complied with.

Mr Vikas Singh, learned senior counsel appearing for the MCI, however, assured this court that by tomorrow, the 23rd September, 2015, the inspection shall be completed and the report shall be sent to the Government by special messenger, which must reach by 24th September, 2015. The Government shall give hearing to the respondents on 26th September, 2015 and take a final decision by 28th September, 2015.

In the peculiar facts of the case and sequence of development and delay caused because of many reasons, the cut- off date fixed by 30th September 2015 may be extended for ten (10) days.

For all these reasons, this special leave petition is dismissed. The question of law is kept open with liberty to the respondents to approach the Court if the decision goes against

them...."

7.4 It is in this background that the MCI vide its report dated 24.09.2015, communicated its recommendations to the Central Government. The said communication recorded that petitioner no.1's inspection was carried out on 22.09.2015, and that, their compliance verification showed various deficiencies. A series of deficiencies were articulated by MCI in its report dated 24.09.2015. I would be referring to these documents hereafter, since, arguments have been advanced by the counsels with regard to the contents of the said report, at some length. What is relevant is that the MCI closed the report with a recommendation to the Central Government, not to grant renewal permission to petitioner no.1 for the academic year 2015-2016.

7.5 As would be evident from the narration of facts as set out above, this time around MCI's recommendation was confined to academic year 2015-2016. 7.6 As a result of the directions contained in the Supreme Court's order dated 22.09.2015, a hearing was convened by the Central Government, on 26.09.2015.

7.7 The petitioners, on their part, filed their written response of even date (i.e. 26.09.2015) to the deficiencies pointed out by the MCI in its report dated 24.09.2015.

7.8 The Central Government, as noticed right at the outset, constituted a Committee. Upon hearing, petitioner no.1's representatives, the Central Government, however, came to the conclusion that renewal permission for academic year 2015-2016 could not be granted. The conclusion reached by the Central Government was based on the recommendation of the MCI contained in its report dated 24.09.2015 and those, apparently, given to it by its own Committee.

7.9 This time around, the petitioners were aggrieved. Consequently, the

petitioners moved the Supreme Court by way of an interlocutory application, in the disposed of SLP (i.e. SLP No. 19513/2015). The said interlocutory application was filed on 29.09.2015, which came up before the court for hearing on 01.10.2015. On that date, the court directed that the application be listed on 06.10.2015. On 06.10.2015, since, the counsel for the petitioners was not prepared, the application was directed to be taken up for hearing on 08.10.2015.

8. On 08.10.2015, the Supreme Court dismissed the application as withdrawn with the following observations:

"..... Mr. A. Sharan, learned senior counsel appearing for the applicant seeks permission to withdraw this application to enable him to move the High Court. Without expressing any opinion, we allow the applicant to withdraw this application. The application is, accordingly, dismissed as withdrawn....."

9. It is in this background that the petitioners approached this court by way of the captioned writ petition. As noticed right at the outset, the writ petition was listed in court on 09.10.2015, when, an interim order was passed in favour of the petitioners given the submissions made before me that the cut-off date in their case had been extended till 10.10.2015 by the Supreme Court vide its order dated 22.09.2015. At this point in time, the petitioners had averred that given the paucity of time, they had decided to move this court, as in any event the court had the jurisdiction to deal with the issues at hand. 9.1 As noticed above, on 09.10.2015, an interim direction was issued by me, with conditions stipulated therein to grant provisional admission to the students. 9.2 The Supreme Court, however, in an SLP filed by the MCI (which was converted into Civil Appeal No. 8681/2015, after leave was granted), quashed the aforesaid interim order vide its order dated 15.10.2015, with the observation that interim relief ought not to have been granted, and that, petitioner no.1 ought not to have been permitted to grant admission to students. The Supreme Court thus, directed, that the admissions will stand cancelled. Furthermore, in

paragraph 5 of its order dated 15.10.2015, the Supreme Court made the following observations:

".... We hope the High Court will conclude the final hearing of the pending writ petition at an early date and the learned counsel appearing for the parties shall extend their cooperation to the Court so that the petition pending before the High Court can be decided at an early date. It is clarified that we are not expressing any opinion on the merits of the case..."

9.3 I may also record that in the interregnum, the petitioners, had filed two applications before me, being: CM Nos. 23341/2015 and 23342/2015. The first application was filed to implead the Government of Madhya Pradesh, via Directorate of Medical Education, while the second application was filed for issuance of directions that the interim order dated 09.10.2015 should bind the Government of Madhya Pradesh as well as, since 63 seats, out of the 150 seats, which are the subject matter of the writ petition, fell within the domain of the State Government. Though this fact was not brought to my notice, on 09.10.2015, having regard to the overall circumstances, both applications were allowed, by me, on 12.10.2015.

9.4 Since, vide order dated 09.10.2015, the writ petition was listed for hearing on 18.11.2015, the petitioners moved an early hearing application, on 30.10.2015, being: CM No. 15183/2015. On that date, the early hearing application, was disposed of, with a direction to the respondents to complete pleadings in the first instance by filing their respective counter affidavits in the meanwhile before the matter could be taken up for hearing. A period of one week was given for this purpose. This direction came to be passed, as despite opportunity given, in that behalf, to the respondents vide order dated 09.10.2015, they had failed to file their counter affidavits. 9.5 It was on account of directions issued on 30.10.2015, that MCI filed its

counter affidavit on 16.11.2015.

9.6 On 18.11.2015, when the matter was taken up, MCI took the stand before me that even if this court was persuaded to grant final relief to the petitioners, such an endeavour would be an exercise in futility, in so far as academic year 2015-2016 was concerned, as the cut-off date (i.e. 30.09.2015) had already been crossed. Learned counsel for the petitioners, however, took a contrary stance based on the directions issued by the Division Bench of the Madhya Pradesh High Court, albeit, in a public interest litigation.

9.7 Therefore, having regard to the stand taken before me, by the MCI, the sense which got conveyed, was that, there was no urgency in the matter. Accordingly, I fixed the matter for hearing on 14.01.2016, so that time could be allocated to those matters which required urgent hearing before the end of the term i.e. December, 2015.

9.8 The petitioners, however, wanting an advancement of the date of hearing (as according to them the writ petition was still alive for the relief sought for by them vis-a-vis academic year 2015-2016), moved the Supreme Court by way of an application being IA No. 2/2015. The said application was disposed of by the Supreme Court on 08.12.2015, with following observations:

"...1. Against an interim order dated 9th October, 2015 passed by the High Court of Delhi, New Delhi, in W.P.(C) No. 9663/2015, Special Leave Petition No. 29443/2015 (now converted into Civil Appeal No. 8681/2015) was filed in this court. The said appeal has been disposed of by this Court on 15th October, 2015, quashing the impugned order passed by the High Court.

2. This application has been filed by respondent no.1 in the afore-stated appeal, which has already been disposed of and therefore, this application is not maintainable.

3. I.A. No.2 is dismissed.

4. The learned senior counsel appearing for the applicant has submitted that still WP(C) No. 9663/2015 is pending before the

High Court.

5. It would be open to the applicant to approach the High Court with a request to hear the pending petition on its merits at an early date....."

9.9 Based on the order of the Supreme Court dated 08.12.2015, the petitioners, once again, moved, an early hearing application being: CM No. 30531/2015 before me. In this application, notice was issued on 14.12.2015. The application was listed on 17.12.2015.

10. Given the aforesaid circumstances, on that date, the early hearing application was allowed and the matter was taken up for hearing. 10.1 Accordingly, arguments, in the matter, were heard over three dates i.e. on 17.12.2015, 18.12.2015 and 21.12.2015. Consequently, judgement in the matter, was reserved on 21.12.2015.

SUBMISSIONS BY COUNSELS

11. It is in this background, that arguments on behalf of the petitioners were advanced by Mr Gupta, learned senior counsel, while those on behalf of the MCI were advanced by Mr Singhdev. Mr Bhardwaj represented the Central Government, while Arjun Garg represented the State of Madhya Pradesh.

12. Mr Gupta, on behalf of the petitioners, broadly, made the following submissions:

12.1 That after the petitioners had made a representation to the Central Government on 26.09.2015, that is, post the order of the Supreme Court dated 22.09.2015, it had passed its final order on 28.09.2015. It was submitted that while the MCI had, in its report dated 24.09.2015, set down nearly 17 deficiencies, the Central Government in its final order had, after considering representation of the petitioners dated 26.09.2015, scaled down the deficiencies to three aspects; which are adverted to in paragraph 8 of its order. 12.2 The Central Government's order dated 28.09.2015, was passed without

due application of mind, in as much as, while it indicated in no uncertain terms that it agreed with the contentions and the documents shown by petitioner no.1, it continued to reflect the deficiencies pointed out in the MCI's report dated 24.09.2015 with regard to the following three aspects.

(a) Deficiency in faculty, which according to the Central Government, was in the range of 7.44%.

(b) Deficiency qua availability of resident doctors; a deficiency, which according to the Central Government, was "non-condonable".

(c) And the alleged submission of incorrect data vis-a-vis patients, as also with respect to admission, supposedly, given to non-deserving cases only to make up numbers; an aspect which was also referred to in the MCI's report dated 23-24.02.2015.

12.3 In respect of the deficiency qua faculty, Mr Gupta took me through the representation dated 26.09.2015, filed with the Central Government and cross- referenced the same with the observations with regard to the deficiency made in the MCI's report dated 24.09.2015. It was contended by the learned senior counsel that even according to MCI deficiency had been brought down via-a-vis faculty members from 15.95% to 7.44%, after adjustments had been made, apparently, with regard to aspects adverted to in petitioner no.2's (i.e. the Dean of petitioner no.1) letter dated 22.09.2015. Learned counsel submitted that the assertions backed by material referred to in the representation dated 26.09.2015, were not considered, and that, had they been considered, no deficiency could have been recorded qua the faculty.

12.4 In any event, Mr Gupta submitted that the deficiency in respect of faculty, in the worst-case scenario, would have been less than 5%, and if, it was so, then, renewal permission could not have been denied on this ground. 12.5 As regards the Residency, Mr Gupta submitted that even according to

MCI's own assessment report of 23.09.2015, petitioner no.1 was deficient qua, only one, Senior Resident in the Department of Surgery. In this context, Mr Gupta submitted that Dr Gaurav Jatav, who is a Senior Resident in the General Surgery Department, on the date of inspection i.e. 22.09.2015, was on sanctioned leave, as he had to sit for the MCH exam. It was stated that the leave application, the original admit card and original certificate concerning Dr. Gaurav Jatav, Sr. Resident (Surgery), were shown to the assessors, which, apparently, were not accepted by them.

12.6 In so far as general assertions with regard to deficiency of Senior and Junior Resident doctors were concerned, Mr Gupta contended that the Central Government had relied upon the observations made in this behalf, as it appears, in the MCI's assessment report dated 23.09.2015. In this behalf, Mr Gupta advanced several submissions.

(a) His foremost submission in this regard was that the deficiency of 83% as reported by MCI, was an interpolation. The mode and manner in which compliance verification was carried out, would show that even though there were no deficiencies, the coordinator i.e respondent no.3, in collusion with vested interest, carried out interpolations in the assessment report, and returned observations beyond the assessors' mandate rendering the findings returned in the report totally perverse. In this context, it was submitted by the learned counsel that since specific allegation had been made against respondent no.3, he was required to file a counter affidavit to rebut the allegation. In support of this submission, the counsel relied upon the following judgements: S. Pratap Singh vs State of Punjab (1964) 4 SCR 733 and Asha vs Pt. B.D. Sharma University of Health Sciences and Others (2012) 7 SCC 389 (Para 17 at page 398).

(b) That the Senior and Junior Resident doctors were, in fact, staying in the hostel; and that, their ration cards, showing their addresses, were made

available. It was emphasized that ration cards were authentic documents as they were issued only after due verification by the concerned officer of the municipal corporation; who is an officer of the rank of a Sub-Divisional Magistrate. Learned counsel stated that ration cards were produced for perusal before the committee constituted by the Central Government as well.

(c) Furthermore, it was contended that original bank account passbooks, with their addresses were also produced before the assessors. It was stated that accounts with banks cannot be opened under the current dispensation unless the concerned bank complies with Know Your Customer (KYC) norms, which, inter alia, requires verification of the prospective account holder's address. The KYC norms, it was contended, are put in place in line with the Reserve Bank India's (RBI) directives issued in that behalf.

(d) Furthermore, it was also pointed out, that the details of phone numbers allotted to the doctors, were also submitted to the Central Government. 12.7 Mr Gupta stated that the aforesaid documents ought to have sufficed as proof of identity and residence since they were in accordance with requirement of clause 7(h) of the assessor's guide issued by the MCI.

12.8 Learned counsel submitted that the broad observations made by the assessors that belongings of the doctors were not found, strewn around, in their respective rooms, is neither here nor there as the residents had, perhaps, placed their belongings and amenities in the cupboards located in the rooms. The fact that the rooms were found to be well-kept, was perhaps on account of the house keeping staff having put the rooms in order.

12.9 As regards the observations made in MCI's report in so far as admission of patients with perceptibly no ailment was concerned, Mr Gupta, once again, referred me to the representation dated 26.09.2015 submitted to the Central Government. It was submitted that nine patients, who were admitted in the

orthopaedics ward, were there, after surgery had been performed on them and, therefore, thereafter appropriate treatment was given to them by having their limbs put in a cast/ plaster. It was stated by the learned counsel that the assessor's observation was not valid as he failed to note that surgeries were conducted routinely even on the date of assessment within the precincts of petitioner no.1. The necessary proof with regard to this aspect, was appended, according to Mr Gupta, as anneuxure-III to the representation dated 26.09.2015.

13. The observations made qua patients found in the paediatric ward, that they, comprised of those persons who only complained of bodyache - it was stated by the learned counsel that paediatric bodyache, headache, fever are common symptoms accompanying viral infection, which could take a serious turn, in patients, belonging to such an age group. Learned counsel emphasized that the viral infection as also swine flu, was prevalent and, thus, the patients falling in paediatric age group, were admitted, as per advice rendered in this regard. Learned counsel submitted that since, investigation concerning such patients was on, for confirmatory diagnosis, no fault could have been found vis- a-vis their admissions. According to the counsel, the patients were genuine and not propped up as portrayed by the assessors.

13.1 As regards the observation in the assessment report, that in the gynaecology ward, patients with chest pain and cough, were found, it was pointed out that the patient had encountered an incident of prolapsed uterus with rectocele and cystocele. Counsel stressed that the patient, who belonged to the geriatric age group, found it difficult to share her medical problem with a male doctor, especially, when it came to discussing that there had occurred a prolapse of a reproductive organ. The doctor being male and unknown to her, perhaps prevented her from disclosing details concerning her ailment. The assessors had not taken assistance of a lady doctor, while taking rounds of the

gynaecology department.

13.2 Furthermore, in so far as the observation made in the assessors report of admitting a patient, on 10.09.2015, for thirteen days for renal colic was concerned, learned counsel stated that investigations were on, at the relevant point in time, and that, the admission of the patient was genuine and not to shore up numbers, as was sought to be suggested. In this behalf, the observation made by the assessors that the doctor in the unit had no explanation as to why the patient was admitted, according to Mr Gupta, the said observation was vague. The admission was made after a diagnosis by the consulting doctor. The assessors did not interact with the consultant, so that, explanation, if any, could have been sought and / or given with regard to the need to admit the patient. The assessors, merely, interacted with the nursing staff and made no attempt to interact with the consultant. It was also submitted that the assessors did not review all case files, and that, all files were complete as on 22.09.2015. 13.3 Learned counsel also stated, the observation made in the assessors report that there was deficiency in the clinical material, was not correct. 13.4 With respect to the observation that, in the casualty ward, while there were 18 beds, only two patients were available, it was pointed out that OPD operates between 9.00 a.m. and 4.00 p.m. and between this span of time, patients are shifted by the specialists to their respective wards except those who are involved in a medico-legal case. As per practice, all patients are kept in casualty wards for two hours. During day time the CMO calls the concerned consultant, who after examination takes a decision not only as regards the transfer of a patient but also qua the line of treatment that is to be adopted for the patient. On the date of inspection, Mr Gupta stated, seven patients in the casualty ward were transferred to different wards.

13.5 Similarly, I was taken through the explanations given in the petitioners'

representation dated 26.09.2015 with regard to other defects pointed out in the MCI's report of 24.09.2015.

13.6 The observation that a patient having Koch's spine was, inappropriately, admitted in the TB ward, was met, by pointing to the fact that the patient also suffered from acute pulmonary infection. Counsel stated that necessary medical documents were appended as annexure-III to the representation filed with the Central Government.

13.7 The observation made, which was suggestive of the fact that there was a failure to fully computerize the MRD Section, was refuted. It was stated that the MRD Section was fully computerized, and that, registrations are carried out on the ground floor, while the MRD record room is on 3rd floor; which is properly maintained as per norms. It was emphasised that satisfaction qua this aspect was reached by the assessors in the previous inspection. The counsel highlighted the fact that necessary agreements, executed in this behalf, were supplied alongwith the representation.

13.8 The observation that the approach to petitioner no.1 was unviable, was rejected at the very threshold. Mr. Gupta was at pains to point out that:

(i) That there were three avenues available for reaching the venue where petitioner no.1 was located.

(ii) Out of the three avenues, two avenues are 40ft wide and, are so shown, in the map approved by the Department of Town and Country Planning as well as the Municipal Corporation, Bhopal.

(iii) The third avenue is 80 ft wide which, connects to NH-12. This avenue has been marked in the approved plan concerning petitioner no.1 and, is also seen in the Google Map of the area.

(iv) All avenues are linked to petitioner no.1, and thus, provide free movement to ambulances, contrary to what is observed in the assessors report.

13.9 With regard to the aforesaid, my attention was drawn to the fact that the layout plan of the Town planning department was submitted along with the representation.

14. Similarly, observations made that OPD and IPD data were inflated, was sought to be met as follows: OPD attendance on the day of assessment i.e. 22.09.2015 was 619, while attendance in IPD, was 278. All the laboratory investigations and radiology investigations were conducted according to the advice of consultants. It was stated that assessor had also, personally, visited all departments where investigations were being carried out at the relevant point in time. Since, the entire data is computerized and reports were duly generated, there was, according to the counsel, no possibility of inflating the MRD data. The observation with regard to inflated data was not based on evidence. On the day of the assessment (i.e. 22.09.2015) patients concerning the Skin Department were available. Reference was made to the fact that proof of registration in the Skin and VD was made available.

14.1 According to the learned counsel, the concerned assessor had failed to properly review the psychiatry register, as, though, the register containing the data for 19.09.2015 was signed by him, he had incorrectly reported that the last entry in the register was made on 15.09.2015.

14.2 Observations qua insufficient surgeries was met by stating that on the day of assessment (i.e. 22.09.2015), nine (9) major and, eighteen (18) minor operations were carried out in the Operation Theater (O.T.). It was emphasised that lists of patients undergoing surgeries were clearly put up on the display board outside O.T., which were verified by the assessors at the time of inspection. Apparently, photocopies of all these lists were supplied with the representation.

14.3 The observation that there were no deliveries in the precincts of

petitioner no.1 either on the date of inspection, or on the three days preceding the date of inspection, was refuted by the learned counsel. It was stated that there was in fact one normal delivery concerning a patient by the name of Mrs Pankhudi, aged 24 years, and nil caesarean section delivery, on the day of assessment. The fact that on the given day or, on days in close proximity to the date of inspection there were no deliveries; learned counsel stated, could not be held against petitioner no.1 as, ultimately, nature has a role to play in the birth of a child.

14.4 Inadequacy, in the number of X-rays taken, was met, by pointing out that in fact between 9 am to 2 pm, on the day of inspection, the total number of X- rays taken were 68, which were adequate for a time frame spanning five hours. The assessors, the counsel stated, on the other hand, had collected the data only up to 2 p.m. 14.5 It was submitted that the tissue for histopathology was sent by the minor O.T. whereas the assessor accessed the record of the major O.T. Furthermore, it was stated that the operating surgeon and respective wards had recommend histopathology and blood bank requisitions for blood transfusion, which matched with the OT records. Learned counsel emphasized that all the wards are set up as per Minimum Standard Requirement (MSR). It was stressed that this fact was verified twice by six (6) different assessors at the time of issuance of Letter of Permission (LOP) and 1st renewal inspection, in February, 2015, itself.

14.6 Mr Gupta submitted that, all facilities like pantry, store room, doctor's room and treatment room etc. are attached to each ward, contrary to what is sought to be suggested.

14.7 In this connection it was pointed out that ENT had an emergency tray, and was well equipped. Counsel stated that visual evidence of the same was

provided.

14.8 It was emphasised that the facilities in petitioner no.1 were constructed as per MCI norms and guidelines from the very inception. In this behalf, it was stated that the layout plan and the design had been supplied for easy reference. It was pointed out that mess facilities were available in all hostels. The fact that there were separate boys and girls hostel, was highlighted. It was stressed that photographs of the mess were filed with the representation, as proof of existence of facilities.

14.9 Qua the observation that there was only one patient each in MICU and SICU and none in the ICCU, PICUI and NICU on the day of assessment; learned counsel stated that there was no such provision in the MSR guideline issued by the MCI. Having said so, learned counsel pointed out that in the week, before the inspection, one patient had been admitted to MICU, and after surgery, two patients were shifted on the day of assessment from the OT and, one patient was admitted to ICCU for MI.

15. It was also pointed out that though, two patients were admitted to NICU on the day of inspection, the reason they were not found there, was on account of the fact that both patients were in the Mother Care Room for the purposes of feeding. According to the counsel, the assessors, had failed to consider this aspect, though it was brought to their notice by the concerned staff.

16. Apart from the above, Mr. Gupta submitted that it was the requirement of Regulation 7 of the 1999 Regulations, for MCI to state, which of the deficiencies were remediable, and those, which were not remediable. It was contended that, it was for this reason MCI was mandatorily required to submit its recommendations (i.e. the report dated 24.09.2015) in form-4. For this purpose, reliance was placed, specifically, on Regulation 7(a)(8) and (d).

17. It was also Mr. Gupta's submission that renewal permission ought not to

be declined for small though curable technical defects. In this context, learned counsel submitted that if at all, there existed a deficiency qua one or two faculty members, a direction could have been issued to make up that deficiency within a given time frame rather than taking the extreme step of declining renewal permission. Reliance in this behalf was placed on the judgement dated 24.09.2015, passed by the Supreme Court, in Civil Appeal No. 7953/2015, in the case titled: Rajiv Memorial Academic Welfare Society & Anr. vs UOI & Anr. and the observations made in the case of Priyadarshini Dental College and Hospital vs UOI & Ors. (2011) 4 SCC 623; at page 632-633, in paragraph

23.

18. Learned counsel also contended that courts are empowered to grant admission even after the cut-off date, if the situation so demands. For this purpose, reliance was placed on the judgement dated 16.10.2015 of the Division Bench of the Madhya Pradesh High Court, in a batch of writ petitions, the lead petition being: W.P. No. 8810/2015 (PIL) and the judgement of the Supreme Court dated 17.01.2013, passed in Civil Appeal No(s). 488-511/2013, titled: Apollo Institute of Medical Sciences and Research vs State of Andhra Pradesh & Ors.

19. On the other hand, Mr Singhdev relied heavily upon the report dated 24.09.2015, submitted by the MCI to the Central Government. Learned counsel submitted that the deficiency in faculty, which the report of its assessors dated 23.09.2015, pegged at 15.95%, was scaled down to 7.44% after suitable adjustments had been made pursuant to the inputs received from petitioner no.2 vide his letter dated 22.09.2015. These adjustments, according to the learned counsel, were made, wherever it was found that personnel with higher qualification were more, than, the minimum number required in a given department. In other words, say in a given department there was a minimum

requirement of two professors and one associate professor, whereas, in fact, in the concerned department, there were three professors and "nil" associate professor, the third professor in the said department was adjusted for the purposes of assessment against the requirement to employ one associate professor. The adjustments made in this behalf, according to Mr Singhdev, were reflected in its report dated 24.09.2015. It was submitted that even after necessary adjustments were made, there remained an unacceptable deficiency level of 7.44% qua faculty.

19.1 Learned counsel stated that, on the day of inspection i.e. 22.09.2015, in absolute terms, petitioner no.1 was short by 14 faculty members comprising of 3 associate professors and 11 assistant professors. Since, adjustments were carried out, as indicated above, after receipt of petitioner no.2's letter dated 22.09.2015, the deficiency, in percentage terms fell from 15.95% to 7.44%.

20. As regards the deficiency in Resident Doctors, learned counsel, once again, relied upon the assessment report dated 23.09.2015, to emphasize the point that there was a deficiency of 83%. Mr Singhdev refuted the submission of Mr Gupta that there was interpolation in the assessment report, as alleged or at all. Learned counsel, in fact, referred to the annotation made in the assessment report wherein, it was stated, that the details with regard to the deficiency were "given separately".

20.1 Based on this annotation, Mr Singhdev sought to rely upon a compilation, which was placed before me during the course of the arguments, which according to him were the "working papers/ notes" that formed the basis of observations made in the assessment report.

20.2 Learned counsel, however, admitted, that none of the working papers/ notes were either appended with the counter affidavit, or even separately filed, with the court.

20.3 It is pertinent to note that, much of Mr Singhdev's arguments, as regards the deficiency in the availability of Resident Doctors and other deficiencies, with respect to lack of infrastructure, alleged provisioning of inflated data qua patients and, the factum of minuscule numbers of surgery being carried out, was based on working papers/ notes placed in the convenience file. 20.4 Mr Singhdev, while taking me through the convenience file, made every attempt to emphasise the fact that the working papers/notes contained contemporaneous observation which formed the basis of the deficiencies noted in the MCI's report dated 24.09.2015.

21. As to what would be the impact of documents which were not supplied with the counter affidavit, and what necessarily flowed from them, is a matter which I will discuss, shortly, hereafter.

22. Moving further, it was also the submission of Mr Singhdev that this court, as well as the Supreme Court, had held in various judgments that reliance ought to be placed on the observations of the assessors as they were "neutral persons" who did not bear any malice towards the institution they were assigned to inspect. This submission was made by Mr Singhdev in the context of the assertions of Mr Gupta that despite averments of malice made in the writ petition qua respondent no.3, no separate counter affidavit had been filed by the said respondent. In the context of the general submission made by Mr Singhdev, that the, integrity and reputation of MCI's assessors ought not to be questioned, reliance was specifically placed by him on the judgement of the Supreme Court in the case of Manohar Lal Sharma vs Medical Council of India & Ors. (2013) 10 SCC 60.

23. Qua the issue, as to whether the cut-off date of 30.09.2015 was inviolable in the facts of this case, Mr Singhdev reiterated, as in the first round, that no relief could be granted to the petitioners for the academic year 2015-2016.

23.1 Mr Singhdev, however, conceded that neither the MCI nor the Central Government had challenged the order dated 16.10.2015, passed by the Division Bench of the Madhya Pradesh High Court, in a batch of writ petitions, the lead petition being: W.P. No. 8810/2015 (PIL) - which directed that extra classes could be held if, students were admitted in academic year 2015-2016.

24. Apart from this, it was Mr Singhdev's contention that in so far as this case was concerned, the Supreme Court had not indicated that the petition was viable for the academic year 2015-2016.

24.1 Learned counsel thus, submitted, that reliance on interlocutory orders passed by the Supreme Court would not help the cause of the petitioners. More specifically, in context of the Supreme Court's order dated 22.09.2015, Mr Singhdev contended that the cut-off date was extended by a period of ten (10) days, beyond 30.09.2015, only to give leeway to petitioner no.1 to admit students if MCI, upon inspection, had found that there were no deficiencies. It was submitted that since defects were found on inspection, as noted in its report dated 24.09.2015, the petitioners could not take any advantage of the extension of time granted by the Supreme Court by virtue of the aforementioned order. 24.2 Learned counsel further submitted that, in any event, even that deadline had been crossed and, therefore, as on date no such relief could be granted. The subsequent orders of the Supreme Court, to which I have made a reference above, in particular, the order dated 15.10.2015 and 08.12.2015, was sought to be explained away, by Mr Singhdev, by contending that the Supreme Court had not, at any stage, indicated that the petition was viable for the academic year 2015-2016.

24.3 To buttress his submission that the cut-off date was sacrosanct and no admission could be made thereafter, Mr Singhdev, relied upon the following judgements: Mridul Dhar & Anr. vs UOI & Ors. (2005) 2 SCC 65; Priya

Gupta vs State of Chhattisgarh & Ors. (2012) 7 SCC 433; and Royal Medical Trust (Regd.) & Anr. vs Union of India & Anr. 2015 (9) Scale 68. 24.4 Learned counsel also emphasised that whenever admissions were granted by the High Courts, beyond the cut-off date, the Supreme Court had invariably either stayed or cancelled the admissions. For this purpose, reliance was placed on the following orders: Order dated 04.09.2015, passed in SLP(C) No. 24871/2015, titled: MCI vs Mahatma Gandhi Institute of Medical Sciences & Ors.; Order dated 24.09.2015, passed in SLP(C) No. 27731/2015, titled: MCI vs Dr. MGR Educational & Research Institute University & Ors.; and Order dated 29.09.2015, passed in SLP(C) No. 26006/2015, titled: MCI vs Society for Advancement of Environmental Science.

25. Mr Bhardwaj, who appeared for the Central Government, relied, only upon, the impugned order dated 28.09.2015. To a specific query put to Mr Bhardwaj, as to whether the Central Government could revert to the report of MCI dated 24.09.2015, the learned counsel fairly conceded that since, MCI's role was that of a recommender, the sustainability of the impugned action could be tested by this court by having regard only to the final order dated 28.09.2015, passed by the Central Government.

26. In so far as the State of Madhya Pradesh was concerned, while Mr Arjun Garg appeared, no submissions were advanced by him.

REASONS

27. Having heard the learned counsels for the parties, and perused the record, according to me what has emerged, is that, there are three broad issues which I need to consider. First, as to whether the petition is viable for the academic year 2015-2016. Second, in testing the validity of the impugned action, is the court required only to look at the final order passed by the Central Government i.e. order dated 28.09.2015, or as contended by the counsel for the MCI, look

even to the report submitted by it, which is dated 24.09.2015. Third, given the facts of this case, is the final order of Central Government dated 28.09.2015, tenable on facts and in law.

ISSUE NO. I

28. As indicated in the opening part of my narrative, this matter has had a tortuous history, in a rather short span of time. The petitioners, for the first time, sought renewal of permission from MCI, for the academic year 2015.2016, on 19.09.2014. An inspection was conducted by the assessors of MCI, on 23-24.02.2015. This fact is borne out from the assessment report of MCI dated 23-24.02.2015. In the said assessment report, various defects were pointed out by the assessors, based on which the Executive Committee of the MCI, vide its communication dated 05.03.2015, recommended to the Central Government to decline the renewal permission to petitioner no.1. 28.1 The Central Government, on its part, decided to grant a personal hearing to the petitioners and, accordingly, by its communication dated 31.03.2015, fixed a date of hearing on 10.04.2015. The petitioners, attempted to meet the deficiencies pointed out in the MCI's report of 05.03.2015 vide their reply dated 09.04.2015. It may be relevant to note at this stage that in so far as the deficiency qua faculty was concerned, the MCI, had pegged it at 19.81%, whereas deficiency qua Residents Doctors was put at 49%. 28.2 The petitioners, even at this stage, had stated that according to them there was no deficiency vis-a-vis the faculty, and if, worst-case scenario was accepted, even then, the deficiency vis-a-vis faculty would not be higher than 2.9%. Similarly, as regards deficiency qua Resident Doctors was concerned, the petitioners, had given clarifications and pegged the same at 4.9%. Regarding other observations made in the report of the MCI dated 05.03.2015, explanations were put forth by the petitioners.

28.3 It appears that several institutes had objections to the inspection reports generated by the MCI, The Central Government, thus, vide communication dated 17.04.2015, directed MCI to review not only the case of petitioner no.1, but also several other institutes which had perhaps raised objections qua the reports generated by MCI. I must point out here that, out of 36 institutes referred to in the letter dated 17.04.2015, a small number of cases also pertained to compliance verification. However, in respect of a large number of cases, Central Government called for review by the MCI.

28.4 Despite the direction of the Central Government, the Executive Council of the MCI, in its meeting held on 29.04.2015, took the stand that it would not review petitioner no.1's case. The MCI, formally, conveyed the stand of its Executive Council to the Central Government vide letter dated 11.05.2015. A perusal of the said letter would show that it was MCI's stance that since the petitioner no.1's case fell within the provisions of Regulations 8(3)(1)(d) of the 1999 Regulations, it was not obliged to process its application for renewal permission. Consequently, MCI reiterated its recommendation, to debar petitioner no.1 from admitting students for two academic years i.e. 2015-2016 and 2016-2017. This view of MCI, as noticed above, was principally based on an opinion which it had obtained from law officer of the Government of India.

29. The result of which, was that, petitioner no.1 approached the Madhya Pradesh High Court by way of a writ petition, being: W.P. No. 7521/2015. The Division Bench of the Madhya Pradesh High Court passed an interim order dated 21.05.2015, whereby, it directed the MCI to review the case of petitioner no.1.

29.1 Pertinently, at that juncture, MCI had taken an objection that the last date for making recommendation (which, according to it, was 15.05.2015), had been crossed. The Division Bench of the Madhya Pradesh High Court, however,

disagreed, and went on to observe that, according to it, prima facie, the recommendation, could be made by MCI till 31.05.2015.

29.2 The Supreme Court, however, vide order dated 04.06.2015, in an SLP filed by MCI, set aside the interim order of the Madhya Pradesh High Court dated 21.05.2015. The short ground on which the interim order was set aside, was that, it had, according to the Supreme Court, granted final relief at an interim stage. MCI was, however, given liberty to move an application within a period of three days to bring to fore the deficiencies found in the inspection, and raise the issue pertaining to the alleged violation of Regulation 8(3)(1)(a) of 1999 Regulations. The Madhya Pradesh High Court, was thus, requested to decide the application, if moved, as expeditiously as possible, preferably, within a period of ten days.

29.3 It appears that, on 15.06.2015, the Central Government changed its stand, and during the pendency of the writ petition aligned itself with the MCI. The Division Bench of the Madhya Pradesh High Court, however, disposed of the writ petition on 01.07.2015 and, in sum, directed, both MCI and the Central Government, to consider the petitioners' case uninfluenced by the communication dated 15.06.2015 issued by the latter i.e. the Central Government. The impugned decisions of the MCI dated 29.04.2015 and 11.05.2015 were, consequently, set aside.

30. It may be noted, at this stage, that even according to the MCI, the last date for making recommendation had already been crossed. Despite, the aforesaid situation obtaining, in SLP No. 19513/2015, which was preferred by the MCI against the Division Bench's order dated 01.07.2015, a direction was issued on 08.09.2015 to the MCI to carry out an inspection as directed by the Division Bench of the Madhya Pradesh High Court. Furthermore, MCI was called upon to submit a report in that behalf to the Supreme Court on or before

21.09.2015. The Central Government was though, directed to file its affidavit- in-reply, on or before 22.09.2015.

30.1 The Supreme Court, however, found on the date fixed i.e. 22.09.2015, that MCI had not filed its report and, consequently, vide an order of even date, based on the assurance of the counsel for the MCI that the report would be generated and sent to the Central Government, issued directions to the effect that the Central Government on receipt of the report by the MCI (which was to reach by 24.09.2015), would hear the petitioners on 26.09.2015 and, thereafter, take a final decision in the matter by 28.09.2015.

30.2 At this juncture, the Supreme Court made a categoric observation, in its order dated 22.09.2015, that in view of the "peculiar facts of the case and sequence of developments and delay caused because of many reasons, the cut-off date of 30.09.2015 may be extended by ten days". Though the SLP was dismissed, the question of law was kept open with liberty to the petitioners to approach the court if, the final decision of the Central Government went against them.

31. Pausing here for a moment, one can clearly gather from the sequence of events, which transpired up till this stage, that the argument advanced on behalf of the MCI as to why the Supreme Court had extended the cut-off date by a period of ten days was misconceived. To recapitulate, it was submitted on behalf of the MCI that the extension of time by a period of ten days was granted, to enable petitioner no.1 to admit students, only in the event MCI in its inspection found no deficiencies. This argument, according to me, does not flow either from the events which transpired up to the date when the Supreme Court passed its order dated 22.09.2015 or, upon reading of the order itself. If what was suggested by the counsel for the MCI, in this behalf, was correct then, there was no need, according to me, to grant liberty to the petitioners to

approach the Supreme Court in case the final decision of the Central Government went against them.

32. Proceeding further, the petitioners, as directed, were given a hearing on 26.09.2015 by the Central Government. At that stage, the petitioners had placed before the Central Government, their rebuttal of the deficiencies pointed out by the MCI in its report dated 24.09.2015. As would be evident from the final order dated 28.09.2015, the Central Government had, in fact, constituted its own committee to hear and assess the material placed before it by the petitioners. It is based on the assessment of its Committee, and the recommendation of MCI that the Central Government reached the impugned conclusion.

33. Since, the final conclusion reached by the Central Government aligned with that of the MCI, which was, to decline renewal permission for the academic year 2015-2016, the petitioners approached the Supreme Court in terms of the liberty granted to it. An interlocutory application was thus, preferred by the petitioners, which, ultimately, was dismissed as withdrawn, on 08.10.2015, to enable the petitioners to move the High Court.

34. It is in this context that the petitioners, for the first time, approached this court, on 09.10.2015 given the direction contained in the Supreme Court's order dated 22.09.2015, whereby, the extended period was to come to an end on 10.10.2015.

35. It was in this background, that the interim order dated 09.10.2015 was passed by me. Since, the Supreme Court set aside the said interim order, vide its order dated 15.10.2015, without expressing any view on the merits of the case, with an observation that the writ petition may be decided on an early date, the petitioners, it appears, were propelled to move an application for early hearing, on 30.10.2015.

35.1 As counter affidavit(s) were not filed by the MCI and the Central Government, despite opportunity being given vide order dated 09.10.2015, a direction was issued in that behalf granting them further one week to file their counter affidavit. The matter was thus, taken up on 18.11.2015, which was the original date fixed in the writ petition. On that date, MCI took the stand that the writ petition, in substance, has been rendered infructuous for the academic year 2015-2016, as the cut-off date (i.e. 30.09.2015), had already been crossed. Taking into account the said submission of MCI, and urgency qua other matters, I had fixed the writ petition for hearing on 14.01.2016. 35.2 The petitioners on their part, once again, approached the Supreme Court. The Supreme Court vide order dated 08.12.2015, once again, directed that the writ petition be decided at an early date. Accordingly, upon an early hearing application being moved by the petitioners, on 14.12.2015, notice was issued, which was made returnable on 17.12.2015. On that date, application was allowed and hearing in the petition was commenced, which, ultimately, got concluded, on 21.12.2015.

36. Given the aforesaid events, it is to my mind, quite clear, that it could not have been the intention of the Supreme Court to direct an early hearing in the writ petition, in the facts of the instant case, if the writ petition was no longer viable for assessment year 2015-2016. Pertinently, the prayers in the writ petition are confined only to the academic year 2015-2016.

37. This apart, I find merit in the submission of Mr Gupta that qua medical seats concerning the State of Madhya Pradesh, the Division Bench vide order dated 16.10.2015, passed in W.P. No. 8810/20105 (PIL) has issued directions to register students beyond cut-off date (i.e. 30.09.2015), based on an assurance given by APDMC that it would conduct extra classes and make up the deficit, that is, the lost working days and/or hours. Notably, the Division Bench of the

Madhya Pradesh High Court, while dealing with the stance of the MCI that it could not permit admission after 30.09.2015, made the following crucial observations:

".....7. The question that may have to be first dealt with to ensure that the admission process is completed in all respects is: whether it would be open to the Court to issue direction to all concerned to permit admission process to be completed after 30.09.2015 for academic year 2015-16.

8. We are called upon to answer this core issue as to why : the Court must intervene to mitigate the situation which, essentially, has occurred due to the insistence of the Court in this PIL to conduct free and fair Medical Entrance Examination by APDMC.

9. Indisputably, the Regulation on Graduate Medical Education 1997, as amended on 25.02.2004, postulates that no admission of student in respect of any academic session beyond 30th September under any circumstance should be permitted nor the Universities shall register any student beyond the said date. However, from the Supreme Court decisions, which have been pressed into service by the learned counsel for the parties and the Amicus Curiae, it is permissible to hold that the prohibition is against the Authorities - such as, Union of India, Medical Council of India, Dental Council of India, State Government, Universities and Medical & Dental Colleges and Management of the respective Universities or Dental and Medical Colleges. It is, however, open to the Writ Court to issue directions to the above said Authorities, which, must bind the Authorities to permit admission and registration of student even beyond 30th September. Provided, however, the Court records its satisfaction and just reasons therefor. This view can be discerned from the decisions of the Supreme Court in Romil B. Shah (Dr.) and Others vs. State of Gujarat and Others (2006) 6 SCC 268 (para 5 and 6) and in particular, Asha vs. Pt. B.D. Sharma University of Health Sciences and Others (2012) 7 SCC 389 (para 29 to 31 & 38.2 and 40.4) and Padmashree Dr. D.Y.Patil Medical College v. Medical Council of India & Anr. (2015) SCC Online SC 770 (para 15).

10. The counsel for the MCI and UOI, relied on the other decisions of the Supreme Court, in the case of Medical Council of India Vs. State of Karnataka and others (1998) 6 SCC 131 and Dr. Preeti Srivastava and another Vs. State of M.P. and others (1999) 7 SCC 120, to contend that the cut off date prescribed by the Regulation for completing admissions is inviolable. We agree with this argument, but, as aforesaid, that prohibition would operate against the stated Authorities. That does not denude the Writ Court from issuing directions to the Authorities, if the situation so warrants - for tangible and exceptional reasons to do complete justice and in larger public interest....."

(emphasis is mine)

37.1 It is in this context that I had queried both Mr. Singhdev and Mr. Bhardwaj, as to whether the aforesaid order dated 16.10.2015, passed by the Division Bench of the Madhya Pradesh High Court, was assailed either by MCI or the Central Government. Both Mr Singhdev and Mr Bhardwaj, affirmed that the said order had not been challenged.

38. Having perused the judgment of the Madhya Pradesh High Court, I must state, I am in respectful agreement with its appreciation of the law, on issue pertaining to the tricky area concerning the cut-off date. To my mind, one cannot quibble with the proposition that the prescribed cut-off date (i.e. 30.09.2015) is binding on all Medical Colleges / statutory authorities, and that, it is a limitation, which courts would, ordinarily, apply to themselves, as well. 38.1 Having said so, it is a self-imposed fetter. Courts can and have unshackled themselves of this fetter where an exceptional situation has arisen. It is not as if, in a case where equity and justice requires, the court is emasculated of its powers to direct admission beyond 30.09.2015. The observations of the Supreme Court made in the case of Asha vs Pt. B.D. Sharma University of Health Sciences and Others, being apposite in this context, are culled out

hereafter for convenience:

"....29. However, the question that immediately follows is whether any mid-term admission can be granted after 30th September of the academic year concerned, that being the last date for admissions. The respondents before us have argued with some vehemence that it will amount to a mid-term admission which is impermissible, will result in indiscipline and will cause prejudice to other candidates. Reliance has been placed upon the judgments of this Court in Medical Council of India v. Madhu Singh, Ms. Neelu Arora and Another v. Union of India, Aman Deep Jaswal v. State of Punjab, Medical Council of India v. Naina Verma and, Mridul Dhar and Another v Union of India.

30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer..... ......38.2 Question (b): 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in the case of Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction...."

(emphasis is mine)

39. The question, therefore, is: Does this case give rise to exceptional circumstance. As noted by the Division Bench of the Madhya Pradesh High Court, in its order dated 16.10.2015, the entrance examination which were to be conducted by APDMC for the academic year 2015-2016, on 12.07.2015, were delayed from time to time, and ultimately conducted on 08.10.2015. I was told when I had passed the interim order dated 09.10.2015, that the first counselling was to take place on 11.10.2015 and the admission process was required to be completed by 14.10.2015. These are facts which stand recorded in the said order. Therefore, quite clearly, in State of Madhya Pradesh, qua entrance exams for medical seats, there has been unexceptional delay for various reasons. Taking into account this position the Supreme Court had extended the date till 10.10.2015. It was thereafter, perhaps, for this very reason that the Supreme Court, even as late as on 08.12.2015, directed that the writ petition be heard at an early date. Therefore, the only inference that I can draw, given the history of this case, is that, the petition is viable in so far as the academic year 2015-2016 is concerned.

ISSUE NO. II and III

40. These issues pertain to the merits of the matter. Quite clearly, the court under the scheme, as it obtains under the IMC Act, is required to deal with the final order of the Central Government, passed under Section 10A(4) of the said Act. In this case, that order is dated 28.09.2015. Therefore, deficiencies pointed out qua the petitioners will have to be, essentially, examined in the context of the Central Government's order dated 28.09.2015. 40.1 The substratum of the Central Government's order is contained in paragraph 8 of its order dated 28.09.2015. For the sake of convenience, the same is extracted hereinbelow:

"......8. And whereas, as per the directions of Hon'ble Supreme Court, the said medical college was granted hearing on 26.9.2015 by the Committee constituted for this purpose. The hearing committee after considering the oral and written submission made by the representatives of the said college, observed the following:-

"The contention and documents shown by college are agreed with. The deficiency of faculty is only 7.44%. As indicated in MCI inspection report, the Residents do not seem to be staying in the campus. The shortage of Residents as pointed out is non-condonable. The Committee noted that the observations regarding inflated data of patients and admission of non-deserving cases just to make up members was also made during the MCI inspection on 23-24 February, 2015. The Committee is of the view that recommendation of MCI not to grant renewal permission for 2015-2016 may be considered....."

40.2 The order of the Central Government has four parts to it. First, that it agrees with the "contention and documents" placed before it by petitioner no.1.

Second, it finds that there is a deficiency qua the faculty to the extent of 7.44%. Third, that the Resident Doctors do not appear to be resident in the campus and, in this behalf, reliance is placed by the Central Government on the MCI's inspection report. Against this deficiency, it is noted that shortage of Resident Doctors is "non-condonable". Fourth, it notes, the observation made in MCI's inspection report dated 23-24.02.2015 vis-a-vis the inflated data qua patients and admission to non-deserving cases.

41. Therefore, I intend be taking up the deficiencies in the order indicated above.

FACULTY

42. It would be noticed that when inspection was carried out by the MCI on 23-24.02.2015, the deficiency qua faculty was pegged at 19.81%. As noticed

above, petitioners had contested that position. They had, in fact, said that there was zero deficiency, and in the worst-case scenario, the deficiency would veer around to 2.9%.

42.1 MCI after taking into account the response of the petitioners dated 09.04.2015, brought down the deficiency qua faculty to 15.95%. The deficiency vis-a-vis faculty was further scaled down to 7.44% in the MCI's report dated 24.09.2015. The reasons for which deficiencies in faculty was scaled down from 15.95% (as found in the assessment report dated 23.09.2015), to 7.44% in the communication dated 24.09.2015, addressed by the MCI to the Central Government, is encapsulated in paragraph 1 of the said communication itself. For the sake of brevity, the said paragraph is extracted hereafter:

"....1. Deficiency of faculty is 15.95% as detailed in the report. The Dean in his letter has stated that 5 Asst. Prof. have passed in May/ June 2015 from MCI recognized colleges who have provisional degree certificate issued by the respective Universities as their final degree certificate would be issued only after convocation. He has further stated that three faculty had gone to attend Hon'ble Courts; however, in respect of one of them - i.e. Dr. Ashok Meghwal, Asso. Prof. of Surgery, although 1 Asso. Prof. is available against requirement of 2, no deficiency has been shown in the chart implying he has been considered. The fourth person mentioned in his letter - i.e. Dr. Shailendra Pandey is actually a Senior Resident in Skin and VD and not a member of faculty. Accepting all such faculty who have not been considered by the assessors and considering them, net deficiency still remains at 7.44%....."

42.2 Mr Singhdev, learned counsel for the MCI, had explained this scaling down of deficiency qua faculty, by adverting to petitioner no.2's letter dated 22.09.2015. The learned counsel submitted that assertions made in petitioner no.2's letter dated 22.09.2015, were taken into account and, therefore, benefit of

explanations provided therein, vis-a-vis certain faculty members, was given by making suitable adjustments.

42.3 It would be important, therefore, to note what exactly the petitioner no.2 stated on this aspect in his communication dated 22.09.2015:

"......1. Dr. P.K. Jain, Professor Biochemistry, has submitted an affidavit to MCI stating that he has left Rama Medical College Kanpur post serving his notice period of three months dt. 31/07/2015. Inspite of repeated reminders to the management of aforementioned institute he has still not received his relieving letter from there. Thus he has duly informed MCI to kindly consider his name as a full time faculty in Biochemistry department of RKDF Medical College.

2. Four faculty members Community Medicine/ PSM namely - Dr. Swatid Jain, Dr. Vivek Nagar, Dr. Pavan Pandey, have passed their MD in May/June 215 and their colleges are duly recognized by MCI. Dr. Drudula Dhore also has passed her MD in Community Medicine from the reognized college. She has submitted the provisional Degree Certificate. All of them possess their provisional degree certificates issued by their respective Universities. Also, Dr. Sanjay Kumar Agarwala, Assistant Professor, Biochemistry possess MD provisional degree from Guwahati University. The final degree is provided by the respective university during the convocation or after it. Since their convocation is due to be conducted they don't have their original degrees. They have submitted provisional passing certificate. Kindly consider the same as full time faculty of RKDF Medical College.

3. Four faculty members namely Dr Ashok Meghawal, Associate Professor, Surgery, Dr. K P S Tomar, Assistant Professor Pathology, Dr Nilesh Rakate, Assistant Professor Anatomy and Dr. Shailendra Pandey, SR Skin & VD, have got their Summon from court. They had gone to attend the court on 22/09/2015. As per MCI norms, if someone is called by the Hon'ble Court of Law, their presence to be counted. However MCI assessors have not counted their presence during inspection on 22/09/2015. Kindly find court Summons attached with this representation...."

42.4 A careful comparison of what is stated in petitioner no.2's letter with the MCI's report dated 24.09.2015, would show that it had made adjustments vis-a- vis five faculty members. Evidently, these faculty members despite having passed their MD exam from Universities recognized by the MCI, had, till the stage of inspection, received only their provisional degrees. These faculty members being: Dr. Swatid Jain, Dr. Vivek Nagar, Dr. Pavan Pandey, Mr Mrudula Dhore and Dr. Sanjay Kumar Agarwala. Furthermore, the MCI's report records that no adjustment was made qua Dr. Ashok Meghawal, Associate Professor of Surgery as his case had already been taken into account against the purported deficiency in the Surgery Department. Similarly, in so far as Dr. Shailendra Pandey was concerned, he was not considered for making an adjustment qua deficiency in faculty since he was a Senior Resident in the Skin and VD Department. There is, however, no reference to two persons i.e. Dr. K P S Tomar, Assistant Professor Pathology and Dr. Nilesh Karate, Asstt. Professor Anatomy, in MCI's report dated 24.09.2015. These two persons, along with Dr. Ashok Meghawal and Dr. Shailendra Pandey, were not present as they had to attend court proceedings. Similarly, there was no comment made either way vis-a-vis Dr. P.K. Jain's case, who had contended that he should be considered as a full time faculty member of petitioner no.1 in the Department of Biochemistry since he had left his previous employment with Rama Medical College, Kanpur, and in that behalf served the stipulated three months' notice, on his previous employer. The fact that he had not received his relieving letter, was not dealt with in the MCI's report of 24.09.2015.

42.5 This apart, the petitioners' submission to consider making adjustments in respect of surplus teachers placed in higher cadre as against the requirement to employ teachers in lower cadre, in accordance with the provisions of both

clause 10 of the assessor's guide3 and note A (b) under the heading, 'staff requirement' for 150 seats (MBBS - U.G.) contained in the MCI's notification dated 01.07.20154, appears not to have been considered, while pegging the deficiency qua faculty at 7.44%. This is obviously so, as the instances given to explain the alleged faculty deficiency, were pointed out on 26.09.2015 after MCI had generated its report dated 24.09.2015. The instances pointed out in this behalf are contained in petitioners' communication dated 26.09.2015. For the sake of convenience, the assertions made in this behalf are set out hereinbelow:

".... The assessors have wrongly calculated deficiency of faculties.

(A) As the deficiency pointed out by the assessors in the department of Orthopedics is against MCI Norms. Only one Associate Professor is Required at the time of First Renewal in the department of orthopedics and Dr. DEEPAK POPHALE is working as Professor against Associate professor in the department.

(B) As the deficiency pointed out by the assessors in the department of Anesthesia is against MCI Norms. Only Two Associate Professor Required at the time of First Renewal in the department of Anesthesia and Dr. S.R. PANDE is working as Professor against Associate professor in the department.

"Assessor's Guide (for Undergraduate assessment) (2015-2016) Stage of assessment xxxxx Verification of Teaching Faculty / Others xxxxx Clause 10 - Excess of Professor / Associate Professors / Asst. Professor can be counted towards deficiency of Associate Professor / Assistant Professor / Tutor respectively in Pre and Para-clinical departments. Excess of Professors / Associate Professors can be counted towards deficiency of Assistant Professor in clinical departments. Excess of teaching faculty cannot be counted against the deficiency of Senior or Junior Resident doctors..."

"..Staff requirement for 150 seats (M.B.B.S. - U.G.) only xxxxx (A). For Teaching Faculty :

(a). For calculating the deficiency of faculty, Prof., Assoc. Prof., Asst. Prof. & Tutor in respective departments shall be counted together.

(b). Any excess teaching faculty in higher cadre can compensate the deficiency of lower cadre of the same department only..."

(C) As the deficiency pointed out by the assessors in the department of Radiology is against MCI Norms. Only one Associate Professor Required at the time of First Renewal in the department of Radiology and Dr. K. PREMRAJ is working as Professor against Associate professor in the department. Note: As per MCI norms and latest Gazette notification of July 3, 2015 any excess teaching faculty in higher cadre can compensate the deficiency of lower cadre of the same department only.

(D) As the deficiency pointed out by the assessors in the department of Forensic Medicine is against MCI norms as Dr. Praveen Kumar Singh is working as Tutor in the department of Forensic Medicine and he has already attached his genuine residence proof AADHAR CARD as well as his temporary address proof his Rent Agreement and he is residing in Bhopal. (E) Dr. Niraj Gupta Assistant Professor General Surgery was in Operation Theatre when the assessors started the round. During headcount, The Dean introduced him to the assessors with due justification that he busy in theatre but assessors have not counted him and considered as deficiency.

Note:- Staff Not Accepted by Assessors but could be accepted on the basis of clarification as they were present during physical verification (F) Dr. Savita Gadekar Assistant Professor Anatomy, and Dr. Rujuta Golwalkar Assistant Professor Psychiatry was on sanction leave due to personal and critical reasons.

Necessary Declaration from along with supporting documents are attached herewith as Annexure 1 Dr. Rujuta Golwalkar is working as assistant Professor in the department of Psychiatry and she was on sanctioned leave due to an avoidable circumstances. However only one assistant professor required as per norms and she was on leave due to illness of her newborn baby.

Sr. Resident Dr. Shilpi Sharma and Jr. Residents are working in the department and were present in the ward and the assessor has duly verified them..."

42.6 As would be evident on a bare perusal of the final order dated 28.09.2015 passed by the Central Government, there appears to be no consideration of aspects adverted to in the petitioners' communication dated 26.09.2015. Mr Singhdev attempted to argue that the provision in the assessor's guide and in the notification for making adjustment(s) vis-a-vis teaching faculty available in the higher cadre against deficiency in the lower cadre, was taken into account while firming up the report dated 24.09.2015. For this purpose, Mr. Singhdev had laboriously taken me through the calculation sheets, that too department wise, which were filed, as a part of the assessment report dated 23.09.2015. I may only note that the calculation sheet while adverting to the departments and the designations (i.e. the levels at which faculty is to be provided in each department), makes no reference to the names of faculty members. Therefore, it is not possible to co-relate the information given in the calculation sheet with the names adverted to in the petitioner's representation dated 26.09.2015. Furthermore, as correctly pointed out by Mr. Gupta, to which, Mr. Singhdev had no convincing answer that, while an adjustment apparently had been made based on the aforesaid provisions in the Orthopaedic department, there was no adjustment made in the Anaesthesiology and Radiodiagnosis departments. 42.7 This submission seems to be correct, as in the final deficiency chart, the assessors appear to record that the faculty in both Anaesthesiology and Radiodiagnosis departments was short by one Associate Professor. If the adjustment, as contended by Mr. Singhdev, had been made, the final deficiency chart, would not have shown a shortage in the aforementioned departments. As indicated above, the adjustments, in any event, cannot be co-related with the names given in the representation dated 26.09.2015.

42.8 Furthermore, a bare comparison of petitioner no.2's letter dated 22.09.2015 with representation dated 26.09.2015, would show that the

reference in the two documents is altogether qua different personnel. DEFECTS WITH REGARD TO RESIDENT DOCTORS

43. In this context, one may note that in the assessment report of 23/24.02.2015, the MCI has recorded that there was a deficiency of 49%. On 09.04.2015, the petitioners had given their response, whereby they had explained that as per their record, there would be, in the worst-case scenario, a deficiency of 4.9%, under this head. Post 22.09.2015 inspection, the MCI generated the report dated 23.09.2015. In its report of 23.09.2015, MCI has given two contradictory indications. At one place it notes that there is 83% deficiency qua the Resident Doctors; in the other place, which is the final encapsulation, deficiency, is noted only qua one Senior Resident, that too in the Department of Surgery.

43.1 Mr. Gupta, on behalf of the petitioners, contended that the endorsement in the assessment report, under this head, where deficiency to the extent of 83% is shown, is not only contrary to the other part of the assessment report, but is an act of interpolation. Mr Gupta sought to buttress this submission by adverting to the fact that a close scrutiny of the document would show that in the column where the said deficiency is noted, there was initially a line drawn, albeit a short one, which was over-written with the expression "83% Deficiency".

43.2 Mr Gupta submitted that this act of interpolation gets caught-out, as a bare perusal of the document would show that the place where the said deficiency amounting to 83% is noted, signatures have been appended only by the three assessors, while, at the foot of the very same page, there are signatures not only of the three assessors, but also that of petitioner no.2. Mr Gupta submitted that the fact that only the three assessors appended their signatures at the place where the deficiency was noted as 83%, shows that it was inserted

after, signatures had been appended by the three assessors and petitioner no.2 at the foot of the page. Learned counsel further submitted that if, it was a bonafide mistake, then, why were the signatures of petitioner no.2 not obtained at the time when the deficiency, amounting to 83%, was noted. 43.3 I must note, though, Mr Singhdev, attempted to refute the submission of Mr Gupta made in this behalf, he could not supply any cogent reason as to why petitioner no2's signature was not appended next to the insertion where deficiency to the extent of 83% stood noted.

43.4 Quite obviously, deficiency of 83% got noted after signatures had been appended by the three assessors and petitioner no.2, at the foot of the page in issue. It is not unknown that when inspections are conducted, at times, mistakes happen in the ordinary course by oversight or otherwise. These mistakes when brought to the notice of the assessors are sought to be corrected by making insertions there and then, which would require the concurrence of all those who participate in the process of assessment. Quite clearly, in this case, the impugned insertion was made after the foot of the page had been signed. If it was, as contended on behalf of the MCI, an oversight, then, quite logically, the assessors ought to have called upon petitioner no.2, to append his signatures where the insertion qua deficiency of 83% was made. Since, signatures of petitioner no.2 are not appended alongside the insertion, the logical conclusion which follows is that, it was an insertion made without the knowledge of petitioner no.2.

43.5 This submission fits in with the argument of Mr Gupta that in the deficiency chart appended at the end of the assessment report dated 23.09.2015, which in sum is the summary of the previous pages of the report, there is only one deficiency shown, that too vis-a-vis a Senior Resident. Therefore, it is not understandable as to how the assessors could have noted that there was

deficiency qua Resident Doctors, on 22.09.2015, to the extent of 83%. 43.6 Mr Singhdev, faced with this situation, tried to rely upon, what he, described as working papers/ notes, generated while the inspection was conducted. Mr Singhdev stated that while these documents were not filed with the counter affidavit, the assessment report adverted to the same, since under the insertion in the assessment report where deficiency of 83% is noted, there is a further annotation which reads as: "Given Separately". Mr Singhdev says that this annotation refers to the working papers/ notes. 43.7 A closer scrutiny of the working papers/ notes show that they advert to an inspection carried out on 23.09.2015. This is apparent on a bare perusal of the first line of a handwritten covering letter dated 23.09.2015 addressed by the assessors to the Secretary, MCI. In contrast, the assessment report of 23.09.2015 fixes the assessment date as: 22.09.2015. It is, therefore, not understood as to how working papers/ notes could have been prepared on 23.09.2015 when, physical assessment, according to the assessment report of 23.09.2015, took place on 22.09.2015. This is not the only problem with the working papers/ notes submitted by Mr Singhdev, in the form of a convenience file. It is noticed that working papers/ notes, which carry 23.09.2015 as the date of their generation, invariably did not contain the signatures of any official of petitioner no.1, that is, either petitioner no.2 or its superintendent, one, Mr H.B. Nayak.

43.8 The working papers/ notes thus, supplied, cannot be taken at face value, and, that too, without taking into account the explanations given by the petitioners in their communication dated 26.09.2015.

43.9 Therefore, in this context, what is to be noticed, is that, in so far as the working papers/ notes generated on 22.09.2015 are concerned (and I am sure MCI would not contend otherwise) that they were taken into account in

generating the deficiencies which formed part of their report dated 24.09.2015. The signatures of the superintendent Mr H.B. Nayak, found on the working papers/ notes dated 22.09.2015, therefore, by themselves, cannot take the MCI's case any further, as the deficiencies recorded in its report dated 24.09.2015, first of all, would have taken into account those inputs. Second, the viability of MCI's report alongwith all its inputs would have presumably been tested by the Committee constituted by the Central Government in the light of explanations given by the petitioners, in their communication dated 26.09.2015.

44. In sum, according to me, the huge deficiency which the MCI has reported qua Resident Doctors, does not appear to be correct. In fact, the Central Government, in its final order, laconically suggests that Residents do not seem to be staying in the campus and that shortage of Residents is non-condonable. The Committee constituted by the Central Government, obviously, has not closely examined the explanations tendered and the material supplied by the petitioners. It is, perhaps, because of this reason, that there is, qua this deficiency, no assertion made in the Central Government's order dated 28.09.2015, as to what is the percentage of the deficiency involved. 44.1 I may also point out in this context, the observations made in the main body of the assessment report dated 23.09.2015, which is a three column report, against the heading concerning Residents. In the first column of the report, there is a reference to observations made in earlier inspection carried out on 23/24.02.2015. In this column, the observation is that, no Residents were staying in the campus. The second column, which notes, the explanations offered by the petitioners, on 09.04.2015, alludes to the fact that all Residents were provided rooms and hostel accommodation. The third column, which relates to the more recent inspection, carried on 22.09.2015, contains no observation. The explanation given in respect of Resident Doctors appears to

have been accepted as there are no adverse remarks in the last column of the assessment report dated 23.09.2015.

44.2 In this behalf, I may also note that the failure of respondent no.3 to file a counter affidavit or an affidavit by a person who was part of the assessors team of the MCI did not help the cause of either the MCI or the Central Government. The circumstances in which insertions were made in the assessment report dated 23.09.2015 could have been explained by those who were part of the assessment process. On the other hand, the writ petition filed by the petitioners is supported by an affidavit of petitioner no.2 i.e. the Dean of petitioner no.1. INFLATED DATA OF PATIENTS AND ADMISSION TO NON-

DESERVING CASES TO MAKE UP NUMBERS (AS ALSO REFERRED TO IN MCI'S INSPECTION REPORT DATED 23-24.02.2015).

45. In respect of this deficiency, one may, once again, advert to the assessment report dated 23.09.2015. MCI has made two notings qua inspections made in this regard in the assessment report dated 23.09.2015. At one place, MCI's assessors note that bed occupancy is inadequate and, in absolute terms have shown that 203 beds were occupied against a total of 300 beds. In percentage terms it has pegged bed occupancy at 67.7%. In another place, against the petitioners' claim of 91% bed occupancy, on the day of the assessment, the MCI's assessors note pegs the deficiency at 69%, albeit at 10.00 a.m.

45.1 Against this noting there is an endorsement which reads as: "Inflated Data Provided".

45.2 As per the prevalent MSR, for first renewal (second batch), qua the 150 admissions in the MBBS Course, the minimum percentage of bed occupancy which is required to be maintained is, 60%. This position, according to Mr Singhdev, continues to obtain even after issuance of MCI's notification dated

01.07.2015. Quite clearly, even if one were to accept the stance of the MCI that the bed occupancy was 69% or even 67.7%, it was certainly well above the stipulated minimum requirement. As correctly submitted by Mr Gupta, that even if, one were to ignore the explanations given by the petitioners, it would still not qualify as a deficiency.

45.3 I must note here that Mr Singhdev somehow tried to distinguish the observation made in the order of the Central Government qua inflated data of patients and admission to non-deserving cases, from the notings made in the assessment report dated 23.09.2015 vis-a-vis the bed occupancy. I have been unable to appreciate the distinction that Mr Singhdev sought to make, as bed occupancy would be related to patients unless one was referring to persons who were found in OPD.

45.4 The order of the Central Government though, once again, reveals nothing in terms of facts and figures, except that which is noted in the MCI's report. It appears that the Central Government has rubber-stamped the MCI's report. This approach is reflected in the counter affidavit filed on behalf of the Central Government, wherein, the deponent after affirming the fact that its own Committee had looked into the representation dated 26.09.2015, filed by the petitioners, goes on to aver that since, these are matters of fact, the Central Government, normally, goes with the recommendation of the MCI qua approval/ disapproval of a case placed before it. In my opinion, the Central Government cannot abdicate its responsibility, which is statutorily conferred upon it under Section 10A(4) of the IMC Act. The Central Government being the final administrative authority - it is required to judge and appraise the conclusions reached by its recommender (i.e. MCI) in the light of material placed before it by the applicant-institute, before passing the final order. [See Swami Devidayal Hospital and Dental College vs UOI & Ors (2014) 13 SCC

506]. In this case, the Central Government mechanically seeks to advert to the earlier report of the MCI's assessors dated 23-24.02.2015, whereas that report was followed by a subsequent report of the MCI dated 24.09.2015, which was based on a more recent inspection carried out on 22.09.2015. CONCLUSION

46. Therefore, taking into account the aforesaid observations, I am clearly of the view that the final order passed by the Central Government is laconic, and is passed without dealing with the assertions and the extensive material supplied by the petitioners alongwith their representation dated 26.09.2015.

47. I have, therefore, no hesitation in quashing the order of the Central Government dated 28.09.2015. It is ordered accordingly.

48. Having done so, the issue which obtains for my consideration is: what is the relief to be given to the petitioners?

48.1 Mr Gupta had submitted, quite vigorously, that this court has ample powers to issue a mandamus, in a case like this, to accord permission for grant of admission to 150 students vis-a-vis the MBBS course, as prayed for by the petitioners. In support of this submission, Mr Gupta has relied upon the judgements of the Supreme Court in the following cases: Comptroller and Auditor General of India & Anr. vs K.S. Jagannathan & Anr. (1986) 2 SCC 679 and Secretary, Cannanore District Muslim Educational Association, Karimbam vs State of Kerala & Ors. (2010) 6 SCC 373.

49. While the submissions of Mr Gupta have merit, in as much as a court exercising powers under Article 226 of the Constitution is empowered to issue a writ, or a writ in the nature of mandamus, or pass any order or give directions, having a positive content, where the Government or Public Authority has failed to exercise its discretion/or acted irregularly, in a manner which is not in consonance with either the statute, or policy or, even where exercise of

discretion is malafide or, based on irrelevant consideration, or by excluding cogent material and relevant consideration5 - the use of such power may be withheld where a closer expert scrutiny of the material filed is required, which has not been considered by the authority concerned.

50. Before I conclude I must indicate that there is a requirement under the 1999 Regulations for the MCI to submit their inspection reports in form-4. The argument often advanced in these situations that form cannot come in the way of substance, may not be tenable in the context of Regulation 7(a)(8) read with 7(a)(d) as MCI is required to indicate whether or not the deficiencies found are remediable. In this particular case, despite the Division Bench of the Madhya Pradesh High Court directing submission of the inspection report in form-4, MCI failed to adhere to the said direction. Therefore, henceforth, the Central Government will insist with MCI that it submits inspection reports, in all cases, in the prescribed form.

50.1 Furthermore, in examining the deficiencies, both MCI and the Central Government should bear in mind the observations made by the Supreme Court in Priyadarshini Dental College and Hospital case and in Rajiv Memorial case. In other words, refusal of permission, inter alia, ought not to be "for insignificant or technical violations".

50.2 As a matter of fact, in Rajiv Memorial case, the Supreme Court observed that the High Court ought not to have ordered re-inspection and that direction could have been given for grant of permission once the order of the Central Government was found contrary to law.

50.3 In this case, however, I have refrained from issuing a mandamus in that behalf because the Central Government appears to have overlooked a whole-lot of material, which was placed before it, by the petitioners. The Central

See Comptroller and Auditor General of India & Anr. vs K.S. Jagannathan & Anr

Government having the necessary expertise at hand, requires to have a re-look at the material supplied by the petitioners.

51. Therefore, in the given circumstances, I am inclined to direct the Central Government to pass a fresh order on the request for renewal of admission (qua 150 students) for MBBS Course in respect of academic year 2015-2016. While, passing a fresh order, the Central Government, will bear in mind the observations and findings recorded hereinabove. The Central Government will confine its area of inquiry with regard to the three heads adverted to in its order dated 28.09.2015, that is, deficiency in faculty, deficiency in Resident Doctors, and inflated data of patients i.e. the bed occupancy. This inquiry will be made in the light of the explanations given and material supplied by the petitioners, along with their representation dated 26.09.2015. If necessary, the Central Government may call upon the representatives of the petitioners to take ahead the process of examination of the material placed before it. Since, there is, an extreme constraint of time, the Central Government will pass its renewal of permission order on or before 01.01.2016.

52. With the aforesaid observations the writ petition and the pending application are disposed of. Parties are, however, left to bear their own costs.

53. Consequently, the earlier date fixed in the matter i.e. 14.01.2016 shall stand cancelled.

54. Dasti under the Signature of the Court Master.

RAJIV SHAKDHER, J DECEMBER 29, 2015 kk