Venkateshwara University & Anr vs Medical Council Of India & Anr
2015 Latest Caselaw 7163 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of decision: 21st September, 2015

+        W.P.(C) No. 7672/2015 & CM No.14975/2015 (for directions)

       VENKATESHWARA UNIVERSITY & ANR           ..... Petitioners
                  Through: Mr. Nidhesh Gupta, Sr. Adv. with Mr.
                           J.S. Bhasin, Ms. Rashmi Priya, Mr.
                           Nishant Shokeen, Mr. Inderjeet Singh
                           and Mr. Abhijeet, Advs.

                                 Versus

       MEDICAL COUNCIL OF INDIA & ANR.           ..... Respondents
                   Through: Mr. Vikas Singh, Sr. Adv. with Mr. T.
                            Singhdev, Ms. Biakthansangi and Ms.
                            Puja Sarkar, Advs. for R-1/MCI.
                            Mr. Rajesh Gogna and Ms. Bhavna
                            Bajaj, Advs. for R-2/UOI.

CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. The petition impugns, (i) the recommendation dated 5th March, 2015

of the respondent no.1 Medical Council of India (MCI) for disapproval of

the scheme submitted by the petitioner no.1 Shri Venkateshwara University,

a Private University sponsored by the petitioner no.2 Shri Bankey Bihari

Educational and Welfare Trust, for establishment of a new medical college

with intake of 150 students annually in the MBBS course / programme, at

Gajraula, District - Amroha, Uttar Pradesh with effect from the Academic

Year 2015-2016; as well as, (ii) the communication dated 15th June, 2015 of

the respondent no.2 Union of India (UOI) disapproving the said scheme of

the petitioners. Axiomatically, a mandamus is also sought to the respondent

no.2 UOI to grant Letter of Permission to the petitioners for starting a new

medical college with effect from the Academic Year 2015-2016.

2. This writ petition dated 10th August, 2015 came up before this Court

first on 12th August, 2015 when notice thereof was issued. Counter affidavit

has been filed MCI and the counsel for the petitioners stated that no

rejoinder would be necessary. The senior counsel for the petitioners and the

senior counsel for the MCI were heard on 27th August, 2015, 31st August,

2015 and 1st September, 2015 and judgment reserved.

3. Prior to considering the respective pleadings and contentions, I may

record that considering that the challenge is to the disapproval dated 15 th

June, 2015 and further considering that the last date prescribed for grant of

approval by the respondent no.2 UOI is 15th July, 2015 and the date for

commencement of the academic session for the MBBS course / programme

was / is 1st August, 2015, the petition brought before this Court first on 12th

August, 2015 is indeed belated. The petitioners have sought to explain some

of the delay by pleading that they first approached the Supreme Court by

way of W.P.(C) No.485/2015 which was on 6th August, 2015 dismissed as

withdrawn with liberty to approach the High Court if advised. The

petitioners have not pleaded the date of approaching the Supreme Court.

However even if it were to be believed that the petitioners had approached

the Supreme Court immediately after 15th June, 2015, same would still not

be a sufficient explanation for delay in approaching this Court as it cannot be

said that the petitioners could have bona fide approached the Supreme Court

directly.

4. Though the delay from 15th June, 2015 to 12th August, 2015 i.e. of

about two months only may not appear to be much but has to be seen in the

context of the facts and the nature of the challenge. As per the prescribed

time schedule, the last date for grant of permission was 15th July, 2015 and

the date for commencement of the academic session was / is 1 st August,

2015. It has been held in Smt. Sudama Devi Vs. Commissioner (1983) 2

SCC 1 that the question whether the principles of laches, acquiescence and

waiver are attracted to particular facts is dependent upon the nature of the

relief sought and the urgency therefor. It was held that there may be cases

where even short delay may be fatal while there may be cases where even

long delay may not be evidence of laches on the part of petitioner and that in

every case it will have to be decided on facts and circumstances whether

petitioner is guilty of laches. The petitioner ought to have known that after

15th July, 2015, UOI could not have granted approval to the petitioner, even

if the earlier disapproval was wrong. The Courts, though in certain cases on

reversing the decision of the UOI of disapproving the scheme or denying

renewal permission have directed UOI, after 15th July, to grant approval /

renewal permission but only on the principle of "none can be allowed to

suffer on account of delay in adjudication" and where the petitioner had

acted with promptitude. Here, the petitioners themselves having approached

the Court long after the date prescribed for grant of approval, even if were to

succeed in the petition, cannot be granted the relief for the reason of having

approached the Court long after the last date prescribed for grant of

approval. Even if this Court were to set aside the disapproval dated 15th

June, 2015 of the UOI of the scheme submitted by the petitioner and were to

hold that the petitioner in fact ought to have been granted approval, the date

of the said approval cannot relate back to a date before the institution of the

petition and would at best relate back to 12th August, 2015 and which is

beyond the prescribed time. In my opinion, this petition is liable to be

dismissed on the ground of laches, acquiescence and waiver alone.

5. However for the sake of completeness, it is deemed appropriate to

deal with the challenge on merits as well.

6. The position as emerging from documents is as under:-

A. that the petitioner no.2 Trust claims to be running a 300 bedded

hospital known as Venkateshwara Hospital;

B. that the petitioners on 24th September, 2013 applied under

Section 10A of the Indian Medical Council Act, 1956 (MCI

Act) for establishment of a new medical college with effect

from the Academic Year 2014-2015;

C. that the MCI carried out inspection of the proposed medical

college and the attached hospital on 23rd and 24th March, 2014

and in which the following deficiencies were found:-

―1. Lecture Theaters: Facility for E class is not available.

2. Clinical material: Bed occupancy on day of assessment was 53% against requirement of 60%. The occupancy in was 49 patients in Gen. Surgery out of 90 beds (54%), 36 patients in Gen. Medicine out of 72 beds

(50%) and 10 patients in Paediatrics out of 24 beds (i.e.41%).

3. ICUs: There was no patient in MICU on day of assessment. There were only 2 patients (i.e. occupancy 40% ) on day of assessment in SICU & NICU/PICU. Admitted patients were not of critical conditions. No serious patients are admitted in hospital & they are referred to other hospitals. The data of last 6 months showed that there was not a single patient put on ventilator.

4. Deficiency of teaching faculty is 13.33% (i.e.

8 out of 60) as under:

                       a)   Professor: 2      (Biochemistry:    1,   Gen.
                            Medicine:1)

b) Asso. Prof.: 4 (Anatomy: 1, Biochemistry: 1, Pharmacology: 1, Microbiology:1)

c) Asst. Prof.: 1 (Anatomy:1)

d) Tutor: 1 (Anatomy:1)

e) Most of the senior staff are commuting from distant places like Meerut, Moradabad, Ghaziabad, etc. which are at a distance of 60-70 kms.

5. Shortage of Residents is 35.55% (i.e. 16 out of 45) as under:

a) Senior Resident: 9 (Gen. Medicine:1, Gen. Surgery: 3, ENT: 2, Anaesthesiology: 2, O.G.:1)

b) Junior Resident: 7 (Gen. Medicine: 1, Gen. Surgery: 1, ENT: 1, Orthopaedics: 1, Ophthalmology: 1, O.G.:2)

c) Most of the Senior Residents are commuting from distant places like Meerut, Moradabad,

Ghaziabad, etc. which are at a distance of 60-70 kms. which is not as per Regulations. Only 1 Senior Resident of Orthopaedics is staying in the campus.

6. Other deficiencies as pointed out in the assessment report.‖ D. MCI, vide its letter dated 10th June, 2014 recommended to the

UOI to disapprove the scheme for establishment of new

medical college submitted by the petitioners;

E. that on the basis of the compliance / rectification of the

deficiencies reported by the petitioners during the hearing given

by the UOI on 26th and 27th June, 2014 under the First Proviso

to Section 10A(4) of the MCI Act, the UOI vide its

communication dated 1st July, 2014 forwarded the compliance /

rectification reported by the petitioners to the MCI for review

and to conduct compliance verification assessment if necessary

and to make fresh recommendations for approval or

disapproval;

F. the Executive Committee of the MCI on 8th July, 2014

examined the direction dated 1st July, 2014 supra of UOI and

concluded that compliance verification could not be considered

without a physical inspection and that it was impermissible for

the MCI to conduct any inspection after 15th June, 2014;

G. MCI vide its communication dated 10th July, 2014 informed so

to the UOI;

H. UOI vide its final order dated 15th July, 2014 to the petitioners

disapproved the scheme submitted by the petitioners for

establishment of new medical college with effect from the

Academic Year 2014-2015;

I. the petitioners filed W.P.(C) No.652/2014 in the Supreme Court

impugning the said disapproval by UOI for the Academic Year

2014-2015 which was on 4th August, 2014 dismissed as

withdrawn with liberty to approach the High Court;

J. the petitioners filed Civil Misc. Writ Petition No.41746/2014

before the Allahabad High Court impugning the disapproval by

the UOI for the Academic Year 2014-2015; the said writ

petition was also on 13th August, 2014 dismissed as withdrawn

with liberty to file a fresh petition challenging the

recommendation of the MCI also;

K. the petitioners thereafter filed Civil Misc. Writ Petition

No.43057/2014 before the Allahabad High Court but in which

no order was passed despite several adjournments;

L. the petitioners again approached the Supreme Court by SLP (C)

No.25833/2014 which was disposed of vide order dated 24 th

September, 2014 observing that since the last date prescribed

for admission of the students was 30th September, 2014, it

would be impossible for the MCI or UOI to by that time decide

whether to grant approval to the proposed medical college for

the Academic year 2014-2015 and directing the MCI to carry

out inspection and submit the Report to the UOI for starting a

new medical college for the Academic Year 2015-2016;

M. that in accordance with the aforesaid direction the MCI

inspected the proposed medical college and attached hospital of

the petitioners on 13th and 14th October, 2014 for granting

permission for the Academic year 2015-2016 and in which

inspection found the following deficiencies:-

"1. (a) Deficiency of teaching faculty is 20% as detailed in the report.

(b) Dr. Sharad Gupta, presented as Professor, Paediatrics did not produce original certificates on 13/10/2014 - i.e. first day of assessment. On the next day, he produced original experience certificate which appeared fake. Dean of the institute Dr. R.K.

Gupta was present during verification. On suspicion of its genuineness, Dr. Sharad Gupta was confronted after which he had confessed that he is a M.D. Paediatrics practicing in Agra and all his teaching experience certificates are fake. He told that Mr. Vivek Tyagi - Agent in Meerut (Mobile No.8171568767) -- was involved in his appointment. The matter was reported to Chairman of the institute Shri Sudhir Giri for further action. One of the relative of Dr. Sharad Gupta along with two other persons entered the room in the evening hours on 14/10/2014 where assessors were preparing the report. They started abusing us and threatened them & their families.

(c) The following faculty are not working in the hospital but appeared only for MCI assessment as confessed by them on their D.F.:

                       (i)     Dr. A. Anuragi,Asst. Prof. of Medicine;
                       (ii)    Dr. N. Goyal, Asst. Prof. of Medicine &

(iii) Dr. P. Chaudhary, Asst. Prof. of Medicine.

2. Shortage of Residents is 11.11% as detailed in the report.

3. Clinical material is inadequate with deficiency of:

(a) Indoor bed occupancy: Most of the patients did not require admission and cases are of poor quality for teaching purpose.

(b) Radiological investigations: Records are not maintained.

(c) Residents are not involved in patient care as most of them not staying in the campus and coming from nearby town.

(d) Faculty are also not involved in IPD patient care as can be verified by case papers.

4. Data of clinical material provided by the institute is inflated. Fake OPD patients and investigations are written in the registers. In IPD most of the patients did not required admission. Case papers did not have patients' notes. Faculty and SR. & JR. were unaware of the details of the patients. They were not involved in patient care.

5. Most of the patients in ICUs did not require admission. There was no patient in PICU / NICU on day of assessment.

              6.       AERB approval       is   not   available   for   X-ray
                       equipment.

7. Other deficiencies as pointed out in the assessment report.‖ N. MCI, vide its communication dated 28th November, 2014 to the

UOI accordingly not only recommended disapproval of the

scheme for establishment of new medical college for the

Academic Year 2015-2016 but also invoked Clause (d) of the

proviso to Regulation 8(3)(1) of the Establishment of Medical

College Regulations, 1999 (EMC Regulations);

O. UOI vide its letter dated 3rd February, 2015 to the MCI asked

the MCI to examine the case of the petitioners in the light of the

order dated 24th September, 2014 supra of the Supreme Court

and also asked the MCI as to how the Clause (a) of the proviso

to Regulation 8(3)(1) of the EMC Regulations had been

invoked ( I may record that the MCI in its letter dated 28 th

November, 2014 had not invoked Clause (a) but Clause (d) of

the proviso);

P. the Executive Committee of the MCI considered the letter dated

3rd February, 2015 of the UOI in its meeting held on 2 nd March,

2015 and vide its letter dated 5th March, 2015 to UOI informed

that:-

(i) that the MCI in its letter dated 28th November,

2014 had invoked Clause (d) of the proviso to

Regulation 8(3)(1) and not Clause (a) as

mentioned by the UOI in its letter dated 3rd

February, 2015;

(ii) that Clause (d) of the proviso to Regulation 8(3)(1)

had been invoked as the petitioners had indulged in

hiring / showing fake faculty and had submitted

false declaration forms of the faculty; and,

(iii) that Clause (d) of the proviso to Regulation 8(3)(1)

is applicable in case of scheme for establishment

of new medical college also and thus the MCI was

reiterating its recommendation of disapproval of

the scheme submitted by the petitioners for the

Academic Session 2015-2016 also.

Q. UOI on 10th April, 2015 granted an opportunity of hearing to

the petitioners and in which the petitioners represented that

there was no deficiency and they had not employed any faculty

member with a fake / forged document and had not submitted

any wrong declaration; and,

R. UOI vide its impugned communication dated 15th June, 2015

disapproved the scheme for the year 2015-2016 also.

7. The senior counsel for the petitioners contended:-

(i) that three Judge Bench of the Supreme Court in judgment dated

20th August, 2015 in W.P.(C) No.705/2014 titled Royal

Medical Trust (Regd.) Vs. Union of India has held that Court

can in individual cases extend the schedule prescribed and thus

the dates prescribed in the schedule for grant of permission

would not be a deterrent to granting permission to the

petitioners as sought if the petitioners are found entitled thereto;

(ii) that the Supreme Court in Royal Medical Trust (Regd.), on an

interpretation of Section 10A(3) of the MCI Act, has held

compliance verification to be necessary and which has not been

done in the present case. It was however clarified that the

amended Regulation 8(3) was not considered in the said

judgment;

(iii) a draft declaration form, of mis-declaration wherein MCI has

accused the petitioners of, was handed over and with respect to

the charge of the MCI, of the petitioners having employed fake

doctors it was contended that the Ethics Committee is seized of

the issue and till a final decision thereon Clause (d) of the

proviso to Regulation 8(3)(1) cannot be applied to the

petitioners;

(iv) that the inspection carried out by the MCI on 13th and 14th

October, 2014 was for the Academic Year 2014-2015 and no

inspection has been carried out for grant of permission for the

Academic Year 2015-2016;

(v) that even if it is to be held that the inspection carried out on 13th

and 14th October, 2014 was for the Academic year 2015-2016,

that being the only inspection and no compliance verification

inspection having been carried out, the petitioners have not

been granted opportunity of hearing as laid down by the

Supreme Court in Royal Medical Trust (Regd.) supra to be

given;

(vi) Clause (d) of the proviso to Regulation 8(3)(1) of the EMC

Regulations uses the word „found‟ and which is indicative of,

that the charge of having employed teachers with fake / forged

documents has to be established before the said Clause can be

invoked and as long as the Ethics Committee of the MCI is

seized of the question, it cannot be said that the petitioners have

been "found" to have employed teachers with fake / forged

documents;

(vii) a download from the website of the MCI was handed over to

contend that the MCI itself is declaring that Clause (d) of the

proviso to Regulation 8(3)(1) of the EMC Regulations is not

applicable to establishment of new medical college;

(viii) attention was invited to the judgment dated 5th August, 2015 of

the Division Bench of this Court in W.P.(C) No.6699/2015

titled Career Institute of Medical Sciences and Hospitals Vs.

Union of India expressing doubts about the interpretation of

the proviso to Regulation 8(3)(1) in judgment dated 28th May,

2015 in W.P.(C) No.5041/2015 titled Shree Chhatrapati

Shivaji Education Society Vs. Union of India and accordingly

ordering fresh inspection of the medical college;

(ix) that SLP (C) No.23278-23279/2015 preferred by the MCI

against the judgment aforesaid was dismissed though "keeping

in view the peculiar facts and circumstances of the case"; and,

(x) attention was invited to the order dated 11th August, 2015 of the

Division Bench of this Court in W.P.(C) No.7106/2015 titled

Malla Reddy Institute of Medical Sciences Vs. Union of India,

also directing the MCI to carry out fresh inspection.

8. Per contra, the senior counsel for the MCI contended:-

I. that the inspection of the proposed medical college and attached

hospital of the petitioners on 13th and 14th October, 2014 had

revealed:-

              (a)      deficiency of teaching faculty of 20%;

              (b)      Dr. Sharad Gupta presented as Professor (Paediatrics)

being not able to produce his original certificate on the

first day of the inspection and on the next day producing

original Experience Certificate which appeared to be

fake;

(c) Dr. Sharad Gupta upon being confronted, having

confessed that he is a M.D. Paediatrics practicing in Agra

and all his teaching experience certificates are fake and

that Mr. Vivek Tyagi, Agent in Meerut was involved in

his appointment in the petitioners‟ proposed medical

college;

(d) the team of the inspecting doctors having been meted out

threat by persons claiming to be relatives of the

Chairman of the petitioner no.2 Trust;

(e) that three of the faculty members having confessed to be

not working in the hospital and having appeared only for

inspection; and,

(f) shortage of Residents was also 11.11%.

II. that the inspection on 13th and 14th October, 2014 was for the

Academic Year 2015-2016 and as directed by the Supreme

Court vide order dated 24th September, 2014 supra;

III. that the need for the UOI to vide its letter dated 1st July, 2014 to

seek fresh recommendation from the MCI arose in as much as

the MCI after the inspection dated 13th and 14th October, 2014

had merely sent its Report as was directed by the Supreme

Court in order dated 24th September, 2014 supra;

IV. however upon the UOI vide its aforesaid letter dated 1 st July,

2014 requiring the MCI to also send its recommendation, the

recommendation dated 28th October, 2014 was sent;

V. that the pendency of the matter before the Ethics Committee is /

irrelevant as the Ethics Committee is concerned only with the

action to be taken against the concerned doctors and not

concerned with the approval or disapproval of the scheme

submitted by the petitioner for establishment of new medical

college;

VI. a compilation of documents with respect to the proceedings

before the Ethics Committee was handed over during the

hearing and it was informed that the said proceedings are under

different Regulations i.e. the Indian Medical Council

(Professional Conduct, Etiquette and Ethics) Regulations, 2002;

VII. attention was invited to Rohilkhand Medical College and

Hospital Bareilly Vs. Medical Council of India (2013) 15 SCC

516 to contend that it has been laid down that in case false /

wrong declaration or fabricated documents have been used for

procuring permission, the Institution / College would not be

considered for renewal of permission for the next academic

year and that the MCI need not wait till culmination of the trial

initiated on the basis of charge sheet filed by the Central Bureau

of Investigation (CBI);

VIII. attention was invited to Hind Charitable Trust Shekhar

Hospital Private Limited Vs. Union of India (2015) 2 SCC 336

and it was contended that the Supreme Court even while

granting general permission for the year 2014-2015 had

clarified that the same shall not apply to colleges or institutions

which had been disqualified by the MCI and / or the UOI and

had been prohibited from making admissions for the reason of

having employed teachers with fake degrees / certificates;

IX. that the Head of the Department as well as the Director / Dean /

Principal of the proposed medical college on the Declaration

Form are required to certify having verified the certificates /

documents submitted by the teachers employed, with the

original certificates / documents and with the concerned

institute and having found them to be correct and authentic; it

was argued that the said endorsement of the petitioners has

obviously been found to be false and wrong;

X. a compilation of the declaration forms of teachers employed

submitted by the petitioners along with their scheme, was

handed over to show that each one of those has been verified

and endorsed by the Head of the Department and the Dean /

Director / Principal of the petitioners with respect to the

correctness thereof; and,

XI. that though the petitioners on the said account are liable to be

prohibited from applying for establishment permission for a

period of two years but the UOI has prohibited them for one

year only and qua which, also representation of the petitioners

is pending.

9. The senior counsel for the petitioners in rejoinder:-

(a) drew attention to the format of the scheme for obtaining

permission for establishment of a new medical college

prescribed in the EMC Regulations and contended that the

Supreme Court in Royal Medical Trust (Regd.) in para 27A has

dealt therewith and in accordance wherewith the view taken by

the Division Bench of this Court in Shree Chhatrapati Shivaji

Education Society is not correct;

(b) that Clause (d) of the proviso to Regulation 8(3)(1) cannot be

applied without giving a hearing and the same would be against

the principles of natural justice;

(c) that Ethics Committee is concerned not only with the conduct

of the doctor concerned but also of the medical college /

proposed medical college and for which reason only the

petitioners are also being called for hearing before the Ethics

Committee;

(d) that in Rohilkhand Medical College and Hospital Bareilly

supra CBI was conducting the investigation and had filed a

charge sheet; in the present case nothing of this sort has been

done; decision in Rohilkhand Medical College and Hospital

Bareilly was owing to the investigation of the CBI and the

charge sheet filed by the CBI;

(e) that the petitioners had not even been furnished the Report of

the inspection of 13th and 14th October, 2014 on the premise

that they were not entitled to an opportunity of hearing;

(f) that the petitioners cannot be condemned without any hearing;

(g) Clause (d) of the proviso to Regulation 8(3)(1) is not concerned

with the grant of permission for establishment of a new medical

college and is concerned only with the renewal permissions for

subsequent years; and,

(h) the very fact that the three Judge Bench of the Supreme Court

in Royal Medical Trust (Regd.) supra did not incorporate the

observations relied upon by the counsel for the MCI in Hind

Charitable Trust Shekhar Hospital Private Limited supra

[which was the interim order in Royal Medical Trust (Regd.)]

is indicative of the MCI during the final hearing having not

pressed the said point.

10. The counsel for the MCI on the close of the hearing handed over a

copy of the Report of the inspection dated 13th and 14th October, 2014.

11. The counsel for the petitioners after the judgment had been reserved

has filed copy of the judgment dated 1 st July, 2015 of the Division Bench of

the High Court of Madhya Pradesh in W.P.(C) No.7521/2015 titled RKDF

Medical College Hospital and Research Centre Vs. Union of India and the

copy of the order dated 8th September, 2015 of the Supreme Court in SLP

(C) No.19513/2015 preferred thereagainst. The counsel for the petitioners on

16th September, 2015 also handed over a copy of the letter dated 14th August,

2015 of the UOI to one Dr. Puran Chand Dharmarth Trust and on 17th

September, 2015 copy of the letter dated 14th August, 2015 of UOI to the

petitioners on the representation aforesaid of the petitioners to UOI against

the application of Clause (d) of the proviso to Regulation 8(3)(1) to the

petitioners and informing the petitioners that UOI has decided that the said

Clause is applicable only in respect of proposal for renewal of permission

subsequent to the establishment of the new medical college and does not

apply to the proposals for establishment of new medical colleges and that

since the proposal of the petitioners was for establishment of new medical

college, the said Clause would not be applicable to the petitioners.

12. I have considered the rival contentions.

13. In the light of the UOI having now taken a stand that Clause (d) of the

proviso to Regulation 8(3)(1) of the EMC Regulations is not applicable qua

the petitioners, the need for adjudication on that aspect does not survive.

What remains to be considered is, whether disapproval by the UOI of the

scheme for establishment of new medical college with effect from the

Academic Year 2015-2016 submitted by the petitioners is contrary to the

procedure prescribed therefor and if so to what effect.

14. However notwithstanding the fact that UOI has decided not to apply

Clause (d) of the proviso to Regulation 8(3)(1) to the petitioners for the

reason of having decided that the same is not applicable to cases of

establishment of new medical college but only to cases of renewal of

permission, I remain quite disturbed by such a Report of the inspection of

the petitioners‟ medical college. I have perused the said Inspection Report of

the three Professors of Government Medical Colleges in Bombay and

Gujarat and against whom there are no allegations of mala fides or having

reported so for extraneous considerations and find them to have inter alia

reported:-

A. that the data provided by the petitioners of the attendance in

OPD, bed occupancy, surgical procedure, deliveries,

radiological examinations, laboratory investigations was

inflated;

B. fake OPD patients and investigations had been entered in the

registers;

C. most of the patients reported as having been admitted did not

require admission;

D. the case papers did not have the patients‟ notes;

E. the faculty, senior residents and junior residents were unaware

of the details of the patients and were not involved in the

patient care;

F. the patients admitted in the ICCU, MICU and SICU were not

required to be admitted therein;

G. three of the teaching staff, though presented during the

inspection, having not been found to be working in the hospital

and having appeared only for inspection / assessment and

having confessed so on their Declaration Form; and,

H. one of the teaching staff presented during inspection having

produced fake experience certificate and the college having

registered First Information Report (FIR) in local Police Station

and the declaration and fake experience certificate are attached

to the Report.

15. I have wondered whether in the face of the aforesaid findings against

the petitioners, can the petitioners be said to be entitled to invoke the

equitable jurisdiction under Article 226 of the Constitution of India and to

relief thereunder.

16. The answer obviously has to be in the negative.

17. It is not as if the petitioners were not given any opportunity of hearing

by the UOI under Section 10A(4). Such opportunity was admittedly granted

on 10th April, 2015 and the petitioners admit to have therein represented

against the findings of the MCI. Though admittedly the copy of the

Inspection Report had not been supplied to the petitioners but it cannot be

said that the petitioners were prejudiced in any manner therefrom. The

officials of the petitioners are signatory to the Inspection Report and were

privy to the inspection and were fully aware of the findings in the inspection.

It is for this reason only that they made detailed representation thereagainst.

However the said representation was not accepted by the UOI which has

vide communication dated 15th June, 2015 rejected the same.

18. It thus cannot be said that there is any infraction of the procedure

prescribed in Section 10A of the MCI Act.

19. What remains to be considered is the challenge on merits to the

decision of the respondent no.2 UOI.

20. However before considering the said challenge, reference may be

made to Manohar Lal Sharma Vs. M.C.I. (2013) 10 SCC 60 laying down

that MCI, while deciding to grant permission or not to grant permission, is

not functioning as a quasi judicial authority but only as an administrative

authority and rigid compliance of rules of natural justice is therefore not

contemplated or envisaged. It was further held that Compliance Report is

called for only to ascertain whether the deficiencies pointed out were

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

compliance, it can conduct a surprise inspection, after that, no further time or

opportunity to rectify the deficiencies is contemplated, nor further

opportunity of being heard is provided. The said judgment has not been

overruled in Royal Medical Trust (Regd.) supra.

21. I have wondered that when the Report of the MCI is, as is in the

present case;

(i) that the clinical data maintained by the petitioners is inflated

and that fake entries had been made therein;

(ii) that the patients found to have been admitted to the hospital in

fact did not require admission;

(iii) that the doctors in the hospital were unaware of the details of

the patients and were not involved in the patient care;

(iv) that the patients admitted in the ICCU, MICU and SICU in fact

were not required to be admitted thereto and were admitted only

to meet the parameters regarding the same;

(v) that three of the faculty members produced for headcount

during the inspection were in fact found to be not teaching in

the hospital and confessed thereto; and,

(vi) one of the faculty members produced for headcount was found

to be with fake experience certificate and admitted to having

been shown as faculty only for headcount during the inspection,

What possible compliance verification could have been done.

22. Compliance is of rectifiable defects / deficiencies. There can be no

compliance of, to say the least, malpractices, if not fraud, deceit and

misrepresentation, in seeking approval. In my opinion, the opportunity of

hearing contemplated in the proviso to Section 10A(4) and the opportunity

and time to rectify the deficiencies contemplated in Regulation 8(3)(1)

would not take within its ambit and inquiry such Report of the inspection.

23. MCI is a Statutory Body vested with expert function of making

recommendations for approval or disapproval of establishment of medical

college by verifying whether the colleges meet the parameters prescribed

therefor. Of course the final decision on the matter has been left to the UOI.

UOI during the hearing under the proviso to Section 10A(4) cannot be

expected to decide on the challenge to such findings in the Report of

inspection forming the basis for the recommendation of the MCI except may

be in a case where the applicant is able to with documents demonstrate that

the Report of inspection is obviously incorrect.

24. In the present case, the copies of the declaration forms handed over by

the counsel for the MCI during the hearing show that the members / faculty

members with respect to whom it is reported that they were produced only

for headcount and / or were with fake certificates have under their signatures

on the declaration forms earlier signed by them and submitted by the

petitioners along with their scheme, admitted so. The petitioners also admit

that proceedings before the Ethics Committee are going on.

25. In the face thereof, I am unable to hold the petitioners to be entitled to

invoke the writ remedy or to be entitled to any relief. There are findings of

gross misrepresentation on the part of the petitioners in seeking

establishment permission and such petitioners cannot be said to be entitled to

approach the equitable jurisdiction of the Courts, that too after delay.

26. The explanation of the petitioners with respect to the faculty member

whose experience certificate was reported to be false is that his appointment

was very recent and his qualification and experience were verified from the

MCIs website and upon his experience certificate having been found to be

false, appropriate action against him has already been taken. With respect to

the three faculty members with respect to whom it was reported that they

were produced only for head count during inspection without being

employed with the petitioners, it is explained that they had been considered

during the previous MCI assessments as can be verified from the teachers

profile as updated by the MCI. I am afraid, I am unable to understand the

purport of the said explanation. The same does not match with the Report of

the inspection.

27. With respect to the Report of inflated clinical material etc. as

aforesaid and making admissions to the hospital without there being any

need therefore, the petitioners have simply controverted the same. It cannot

be decided in this jurisdiction whether what has been reported is correct or

the denial thereof by the petitioners is correct. In the absence of any plea of

the Inspection Report being guided by extraneous considerations and

considering the fact that the inspection is in the exercise of administrative

power, I have no hesitation in, at this stage, giving credence to the

Inspection Report rather than the denial thereof by the petitioners.

28. As far as other questions arising in this petition, need is not felt to deal

therewith having already dealt with the same in, (i) judgment dated 20th

August, 2015 in W.P.(C) No.5941/2015 titled Jamia Hamdard (Deemed

University) Vs. Union of India; (ii) judgment dated 1st September, 2015 in

W.P.(C) No. 7128/2015 titled Kanachur Islamic Education Trust (R) Vs.

The Ministry of Health and Family Welfare; (iii) judgment dated 16th

September, 2015 in W.P.(C) No.6529/2015 titled Rajshree Educational

Trust Vs. Union of India; (iv) judgment dated 16th September, 2015 in

W.P.(C) No.7671/2015 titled TRR Institute of Medical Sciences Vs. Union

of India; and, (v) judgment dated 18th September, 2015 in W.P.(C)

No.7414/2015 titled Advanced Medical Science and Education Society Vs.

Medical Council of India in the recent past and in most of which the senior

counsel for the petitioners was same as in the present case.

29. The counsel for the petitioners on 18th September, 2015 also handed

over copy of judgment dated 17th September, 2015 of another Single Judge

of this Court in W.P.(C) No.7855/2015 titled Dr. MGR Educational &

Research Institute University Vs. Union of India. That is found to be

turning on its own facts and has no relevance to the issue at hand.

30. The petitioners are thus not found entitled to any relief.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J

SEPTEMBER 21, 2015 „pp‟..