Delhi High Court
Oxford Medical College Hospital & ... vs Union Of India & Anr on 21 September, 2015
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st September, 2015
+ W.P.(C) 6684/2015 & CM No.12189/2015 (for directions)
OXFORD MEDICAL COLLEGE HOSPITAL
& RESEARCH CENTRE ..... Petitioner
Through: Mr. Salman Khurshid, Sr. Adv. with
Mr. Naveen R. Nath, Mr. Shravan
Sahay & Ms. Mitali Chauhan, Advs.
Versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Kamal Kant Jha & Mr. Kavindra
Gill, Advs. for R-1/UOI.
Mr. Vikas Singh, Sr. Adv. with Mr. T.
Singhdev, Ms. Biakthansangi & Ms.
Puja Sarkar, Advs. for R-2/MCI.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The petition impugns the communication dated 15th June, 2015 of the
respondent No.1 Union of India (UOI) to the petitioner, of having accepted
the recommendation dated 11th May, 2015 of the respondent No.2 Medical
Council of India (MCI) not to renew the permission for admission of second
batch (150 seats) of MBBS Course / Programme at the petitioner Medical
College for the academic year 2015-16 and accordingly directing the
W.P.(C) No.6684/2015 Page 1 of 22
petitioner not to admit any students in the second batch of MBBS
Programme for the academic year 2015-16. Axiomatically, mandamus
directing UOI to decide the case of renewal of the petitioner Medical
College after giving an opportunity of personal hearing, is also sought.
2. The petition dated 13th July, 2015 was filed on the same day but with
defects and re-filed on 14th July, 2015 and came up before this Court first on
15th July, 2015 when notice thereof was issued. Counter affidavits have been
filed by UOI and MCI and to which rejoinders have been filed by the
petitioner Medical College. The senior counsel for the petitioner and the
senior counsel for the MCI were heard on 3rd August, 2015, 10th August,
2015 and 11th August, 2015 and judgment reserved.
3. I may at the outset notice the aspect of the delay on the part of the
petitioner in approaching the Court. The challenge is to the refusal dated
15th June, 2015 of the renewal permission. Though it is pleaded that the said
communication was received by the petitioner only on 29 th June, 2015 but
without any supporting document. Ordinarily, the decisions in this regard
are known to the concerned medical college instantly. However, even if it
were to be believed that the petitioner learnt of the same only on 29 th June,
W.P.(C) No.6684/2015 Page 2 of 22
2015, the delay therefrom till 15th July, 2015 in bringing the matter before
the Court is inexplicable. The last date prescribed in the time schedule for
grant of renewal permission is 15th July and the date for commencement of
academic session of the MBBS Programme is 1st August, 2015. The
petitioner, in the light thereof, ought to have made the challenge if any to the
refusal of renewal permission immediately after 29th June, 2015.
4. Though the delay from 15th June, 2015 or from 29th June, 2015 to 15th
July, 2015 may not appear to be much but has to be seen in the context of
the facts and circumstances. 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
W.P.(C) No.6684/2015 Page 3 of 22
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 petitioner itself
having approached the Court on the last 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 late. Even if this Court were
to set aside the disapproval dated 15th June, 2015 of the UOI of the renewal
permission sought 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. I am of the
view that the 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 undisputed facts are:
(i) The scheme of the petitioner for establishment of a new
Medical College with an annual intake capacity of 150 students
W.P.(C) No.6684/2015 Page 4 of 22
to the MBBS course / programme with effect from the
academic year 2014-15 was sanctioned on 18th July, 2014.
(ii) In pursuance to the application of the petitioner for renewal of
permission to admit 150 students to the MBBS programme in
the academic session 2015-16, inspection of the petitioner
Medical College and attached hospital was carried out on 12th
and 13th January, 2015 and in which the following deficiencies
were found:
"1. Birth registration submitted to Gram Panchayat is only for 115
births for the year 2014 indicating daily average of deliveries
at 0.3/day which is grossly inadequate.
2. Radiological investigation workload is grossly inadequate.
Workload of special investigations like Ba, IVP is NIL on day
of assessment. Records of many digital X-rays and reports of
X-rays of many patients are not available.
3. ICUs: There was NIL patient in PICU/NICU, only 1 patient in
MICU & only 2 patients each in ICCU & SICU on day of
Assessment copies of USG films of many patients were not
available. Records could not be retrieved from the computer as
well. Reports were not available on request.
4. ETO sterilizer is not available.
W.P.(C) No.6684/2015 Page 5 of 22
5. Audiovisual aids are inadequate in Preclinical & Paraclinical
departments.
6. Pharmacology department: Space allocated is inadequate. size
of staff rooms is inadequate. Seating in Clinical Pharmacology
laboratory is only 15 which is inadequate.
7. Area of all preclinical departments is inadequate.
8. Forensic Medicine Department. Mortuary is not air-
conditioned and is not functional. Cold storage cabinets are
not available.
9. Pathology Department: Audiovisual aids are inadequate in
library cum seminar room and in Demonstration Room.
10. Central Library: Actual number of titles of books available in
less than that mentioned in Form A as under:
Department Titles
Form A Available
1. Pathology 82 48
2. Community 89 35
1
Medicine
1
3. Orthopaedics 71 47
.
11. Nursing Hostel: Accommodation is of dormitory type and not
in rooms.
12. Tutors and Residents are paid in cash. Pay of Tutors is
Rs.15,000/- p.m. which is far less than that recommended for
teaching cadres.
13. Dr. Sathyalaxmi, Asst. Prof. in Ophthalmology produced Form
16 which did not bear PAN even through it is allotted to her.
14. The following faculty have appeared for assessment at other
colleges as mentioned hereunder:
Name Designation Department Appeared at
Assessment
College Date
1 Dr. S.S. Professor Pharmacology JJM 09/2014
Somasekhar Davangere
2 Dr. H.V. Prasad Professor Gen. Medicine MVJ 05/2014
Bangalore
3 Dr. R. Tulsi Asst. Prof. O.G. 05/2014
15. Fake patients have been detected on random check of certain
wards. Indoor case records were found to have fictitious
operative notes of the patients; however, there was no
evidence of surgery carried out on these patients. Date of
admission as recorded on case sheets did not match with actual
information provided by the patient. Professor in charge of the
Unit refused to sign the sheet on which this was recorded.
16. Number of deliveries and emergencies actually attended by
faculty & Residents did not match with actual number of
emergencies mentioned in hospital records.
17. Data of normal deliveries provided by the institute does not
match with the date of live birth registration records submitted
to Gram Panchayat Office.
18. Number of blood units issued and laboratory investigations in
records of service laboratories are not commensurate with
number of surgeries, patients attending OPD & Admitted in
the hospital.
19. Reports of many X-rays and USG are not available. Records
& reports of many digital X-rays and USG are not available
and could not be retrieved from the computer.
20. Other deficiencies are pointed out in the assessment report."
[Pages 249-252]
(iii) Some of the Doctors, Nurses and Staff of the petitioner Medical
College made complaints dated 11th and 12th January, 2015 to
the MCI, of the petitioner having presented false and fabricated
information to the MCI.
(iv) That the Executive Committee of the MCI, after considering the
report of the inspection and the complaints received, vide letter
dated 12th February, 2015 recommended to the UOI not to
renew the permission for admitting second batch of 150
students in MBBS Programme to the petitioner Medical
College.
(v) The Executive Committee of the MCI also decided to refer the
matter to Ethics Committee of MCI for consideration of the
faculty members since some of them had appeared during the
inspection of other medical colleges also.
(vi) UOI, in compliance of first proviso to Section 10A(4)of the
Indian Medical Council Act, 1956 (MCI Act), on 12th March,
2015 gave an opportunity of hearing to the petitioner Medical
College and which was availed of by the petitioner Medical
College.
(vii) In the meanwhile, the petitioner had also represented against the
inspection report and reported compliance of deficiencies to the
MCI and MCI again inspected the petitioner Medical College
and attached hospital on 8th April, 2015 and in which the
following deficiencies were found:
"1. Deficiency of faculty is 18.09% as detailed in report.
2. Shortage of Residents is 67.90% as detailed in the report.
3. A large number of patients admitted in various wards did not
merit admission. There were very few post-operative patients
in General Surgery & Orthopaedics wards. Patients were
admitted for very minor complaints.
4. Only 1-2 unit of blood are issued daily. Operations performed
in the hospital are relatively simple nature & do not require
transfusion.
5. On day of assessment, operative workload of Major operations
was 7 which is inadequate. Out of 7 operations, 4 were
Cataract operations. There was no operation in Orthopaedics.
6. Special investigations like Ba, IVP are not carried out.
7. Birth register & Parturition register show total 150 deliveries
over a period of 3 months of January - March 2015 which is
inadequate.
8. ICUs: There was no patient in ICCU on day of assessment.
There were only 2 patients each in ICU & NICU/PICU.
9. Mortuary is not air-conditioned & non-functional.
10. Central Library: No explanation has been given for the
discrepancy in number of titles between Form A & actually
available.
11. Other deficiencies as pointed out in the assessment report."
[Pages 255-256]
(viii) A representation dated 9th April, 2015 was made by the
petitioner to the MCI with respect to inspection of 8 th April,
2015.
(ix) The Executive Committee of the MCI, after considering the
report of inspection of 8th April, 2015 and the representation
dated 9th April, 2015 of the petitioner, decided to recommend to
the UOI not to renew the permission for admitting second batch
of 150 students in the MBBS Programme to the petitioner
Medical College and communicated so to UOI vide letter dated
11th May, 2015.
(x) UOI, vide impugned communication dated 15th June, 2015 to
the petitioner, communicated its decision to accept the
recommendation of MCI and refused permission for renewal to
the petitioner to admit the second batch of students in the
academic year 2015-16.
7. The senior counsel for the petitioner contended:
(a) That at the time of inspection on 8th April, 2015 a number of
Junior and Senior Residents were at rural hospitals and some
others were in Operation Theatre and yet others were not
available at 11:00 AM for the reason of having left in the
morning after doing night duty.
(b) That though most of them arrived at 11:30 AM to 12:00 noon,
but their presence was not recorded.
(c) That during the inspection on 12th and 13th January, 2015, no
shortage / deficiency in teaching faculty was found and the
deficiency found of Resident Doctors was only of 2.5%.
(d) The report of the inspection dated 8th April, 2015 finding
deficiency of faculty of 18.09% and deficiency of Residents of
67.90% is thus obviously wrong.
(e) That no new deficiencies can be found in inspection for
compliance verification.
(f) Attention was invited to the judgment dated 5 th August, 2014 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 finding prima facie substance in the contention
of the petitioners therein, that report of a surprise inspection
cannot form the basis of applying the Clause (b) to proviso to
Regulation 8(3)(1) of the Establishment of Medical College
Regulations, 1999 (EMC Regulations) having regard to the
expression "regular inspection" employed in the said Clause.
8. Per contra, the senior counsel for the MCI contended:
(I) That the challenge under Article 226 of the Constitution of
India can only be to the decision making process and not to the
decision itself. Reliance in this regard is placed on Tata
Cellular Vs. Union of India (1994) 6 SCC 651, Union of India
Vs. K.G. Soni (2006) 6 SCC 794, Heinz India Pvt. Ltd. Vs.
State of Uttar Pradesh (2012) 5 SCC 443 and Seimens
Aktiengeselischaft & Seimens Ltd. Vs. Delhi Metro Rail
Corporation Ltd. (2014) 11 SCC 288.
(II) That the plea of the petitioner in its representation, on the basis
of amendment dated 1st July, 2015 to the EMC Regulations
applicable with effect from the academic session 2016-17, in
which the requirements of Residents and faculty at the time of
admission of second batch of students has been reduced, cannot
be accepted for the academic session 2015-16; moreover
different yardstick cannot be applied for the petitioner from that
applied for all other colleges for the academic year 2015-16.
(III) That the reliance placed by the petitioner on Career Institute of
Medical Sciences and Hospitals supra is misconceived
inasmuch as the MCI / UOI has not invoked the proviso to
Regulation 8(3)(1) vis-à-vis the petitioner Medical College
inasmuch as the deficiencies found in the first inspection were
not such as to invite application of the said proviso, though the
deficiencies found in the second inspection are within the
parameters of the proviso but the question of applying the
proviso to second inspection does not arise.
(IV) That in the representation dated 9th March, 2015 of the
petitioner with respect to the first inspection of 12 th and 13th
January, 2015, the petitioner Medical College has admitted the
deficiencies mentioned at serial Nos.2,4,12 and 15 in the report
of the said inspection and the explanation furnished by the
petitioner therefor is unacceptable and clearly so.
(V) That the MCI, vide its letter dated 17th March, 2015 to the
petitioner, communicated to the petitioner that the explanation
given of Tutors / Residents being paid in cash and with respect
to fake patients was not tenable and that the deficiencies of
Radiological Investigations, ETO Sterilizer were not even
reported to have been rectified / removed.
(VI) That the compliance verification inspection cannot be confined
to only the deficiencies found in the first inspection and has to
be necessarily a complete inspection of the parameters of
infrastructure and faculty required to be made.
(VII) That as per the Assessors Guide for Undergraduate Assessment
2015-16 of the MCI, the verification of teaching faculty / others
has to be at 11:00 AM on the first day only and no verification
is to be done for the faculty Residents coming after 11:00 AM;
exemption is carved out only with respect to Junior Residents /
Senior Residents on night duty in the hospital who are
permitted to appear for assessment till 12:00 noon.
(VIII) The petitioner, even in the writ petition has given no
explanation whatsoever with respect to the finding of the
second inspection of deficiency of faculty; it is only in rejoinder
that a feeble attempt in that regard is made.
(IX) Attention was invited to the report of second inspection of 8 th
April, 2015 to demonstrate that the benefit of acceptable
explanations of the petitioner was given to the petitioner.
(X) That there are no allegations of mala fide, ulterior motive or
extraneous consideration against the members of the inspection
team.
(XI) That the inspection reports have been signed by the Principal of
the petitioner Medical College without any objection.
(XII) That it is not the plea of the petitioner Medical College that the
faculty members found absent had arrived/come by 12:00 noon.
(XIII) That no distinction between surprise and regular inspection can
be drawn; attention in this regard was drawn to, i) judgment
dated 20th December, 2013 in W.P.(C) No.6261/2013 titled
Raipur Institute of Medical Sciences Vs. Union of India, ii)
judgment dated 15th January, 2014 in LPA No.18/2014 titled
Raipur Institute of Medical Sciences Vs. Union of India, iii)
order dated 10th March, 2014 in W.P.(C) No.1562/2014 titled
U.P. Unaided Medical Colleges Vs. Union of India, iv)
abstract of MCI Executive Committee Meeting dated 23 rd
January, 2014, and v) copy of Minutes of the General Body
Meeting held on 28th March, 2014.
(XIV) Giving advance notice defeats the purpose of inspection.
9. The senior counsel for the petitioner in rejoinder contended, i) that the
petitioner had bona fide wrongly assumed that the deficiency in faculty of
18.09% was pardonable, ii) that the petitioner on affidavit has stated that the
requisite faculty was available at 12:00 AM; and, iii) that the second
inspection was only for one day and not for two days.
10. I may record that the hearing on one of the days in this petition was
along with the hearing in W.P.(C) No.6529/2015 titled Rajshree
Educational Trust Vs. Union of India and the senior counsel for the
petitioner had adopted several arguments of the counsel for the petitioner in
Rajshree Educational Trust supra. The said contentions of the counsel for
the petitioner in Rajshree Educational Trust have been rejected by me in
judgment dated 16th September, 2015 pronounced by me in that matter.
11. The Supreme Court, in Manohar Lal Sharma Vs. Medical Council of
India (2013) 10 SCC 60 and to which no reference is made in the
subsequent judgment dated 20th August, 2015 in W.P.(C) No.705/2014 of
three Judges of the Supreme Court in Royal Medical Trust (Regd.) Vs.
Union of India, inter alia held as under:
"19. 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. Rigid rules of natural justice
are, therefore, not contemplated or envisaged. Rule 8(3)(1) of the
Establishment of Medical College Regulations (Amendment) Act,
2010 (Part II), provides for only an "opportunity and time to
rectify the deficiencies". Compliance report is called for only to
ascertain whether the deficiencies pointed out were rectified or
not. 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."
12. It is clear from the above that there cannot be repeated inspections and
compliances.
13. I have also recently in judgment dated 20th August, 2015 in W.P.(C)
No.5941/2015 titled Jamia Hamdard (Deemed University) Vs. Union of
India and for the detailed reasons given therein and with which it is not
deemed necessary to burden this judgment, held that no error can be found
in MCI not giving another opportunity after the second inspection to rectify
the defects found therein. It was further held that Section 10A(4) of the MCI
Act does not provide for multiple opportunities to rectify the defects and
provides for only one opportunity/opportunity of hearing; if it were to be
held that after each inspection, to verify whether the deficiencies pointed out
in the earlier inspection had been removed or not and if fresh deficiencies
were to be found, a fresh opportunity of hearing were to be given, it would
become an endless exercise which cannot possibly be completed, at least
within the time schedule therefor laid down by the Supreme Court and
prescribed by the Regulations and which would needlessly delay the
commencement of the academic session. An exception may however be
carved out for a situation where in the light of the two inspection reports a
clarification may be deemed necessary by the UOI before it takes a decision
and in which cases it was held that UOI would be entitled to seek an
explanation or if the time permits, direct further verification.
14. I have considered the deficiencies pointed out in the two inspections
of the petitioner Medical College. Deficiencies in delivery, deficiencies in
patients in ICU, ICCU, PICU, MICU and SICU, deficiencies in library are
common to both inspections.
15. Though in the first inspection, no deficiency in faculty and Residents
is mentioned but it is recorded in the Report thereof that Doctors and
Residents were shown to have been paid in cash and that the pay of Doctors
shown was far below than that recommended for teaching cadres; similarly
with respect to faculty, it was stated that three of the faculty members had
appeared in assessment at other colleges also.
16. I am also unable to hold that merely because the shortage of Residents
reported in second inspection is as high as 67.9%, when all that was stated in
the report of the first inspection was of the Doctors and Residents being paid
in cash, is such a contrast which is unbelievable. Cases of medical colleges,
for the purposes of headcount of faculty members during the inspection,
producing persons not actually teaching in the medical college are rampant.
It is thus well nigh possible that though the petitioner, prepared for the first
inspection, was able to meet the head count, was the second time a round
caught unaware. Moreover, no conclusive finding in that regard can be
given in writ jurisdiction. It is only on examination and cross examination
of witnesses in an appropriate proceeding that conclusive finding whether
the report of deficiencies in Residents is correct or not can be given. I may
only state that the petitioner along with the petition has not produced any
material whatsoever on the basis of which this Court can say that the
petitioner indeed has the requisite number of Residents and the report of
deficiencies is incorrect.
17. Else, I agree with the contention of the senior counsel for the MCI that
the scope of writ petition is confined to the decision making process and
with which no error can be found. The decision of the UOI, based on the
recommendation of the MCI and which in turn is based on the inspection
report, is not such which can be said to be totally illogical which no
reasonable man could have reached. Thus no ground for inference
therewith, is made out.
18. There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 21, 2015
„gsr‟..
