Delhi High Court
Jagat Narain Subharti Charitable ... vs Union Of India And Anr on 19 July, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Letters Patent Appeal No. 340/2018
Date of decision: 19th July, 2018
JAGAT NARAIN SUBHARTI CHARITABLE TRUST AND ANR.
..... Appellants
Through:Mr. Guru Krishan Kumar, Sr. Advocate
with Mr. Vivek Singh, Advocate.
Mr. Aman Nandrajog, Mr. Sumeer Sodhi and Mr.
Siddharth Sharma, Advocates.
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Bhagvan Swarup Shukla, CGSC with
Kamaldeep, Advocate for R-1/UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Puja Sarkar and Mr. Tarun Verma,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
Present intra-Court appeal under Chapter-X of the Letters Patent Act
impugns judgment dated 28th May, 2018 dismissing Writ Petition (C) No.
5006/2018.
2. In the writ petition filed, the appellants before us, Dr. Jagat Narain
Subharti Charitable Trust and Shridev Suman Subharti Medical College,
had prayed for the following reliefs:-
LPA 340/2018 Page 1 of 17
"(i) Issue a writ, order or direction in the nature of
Certiorari for setting aside/quashing the order dated
20.04/2018 passed vide letter no.U- 12012/702/2015-
mei [fts.3073174] denying the renewal of the
permission for admission of third batch of 150 MBBS
students at petitioner no.2 for the academic year 2018-
19.
(ii) Issue of writ, order or direction in the nature of
mandamus for directing the respondent no.2-MCI to
conduct the inspection of the petitioner college to
verify the fulfilment of the eligibility criteria for the
second renewal of the permission to admit students in
the academic session 2018-19 and send its
recommendations to the respondent no.1 and direct the
respondent no.1 to take a decision on the grant of
permission within a time bound schedule.
(iii) Issue a writ, order or direction in the nature of
mandamus to the Respondent No.1 for renewal of
permission of admission of 3rd Batch of 150 MBBS
students for the academic year 2018-19 in Petitioner
Institute;
(iv) Issue a writ, order or direction in the nature of
mandamus thereby constituting another team of
independent Assessors who are not working or are
under the administrative control of the Respondents for
conducting the inspection of the Petitioner College
separately and direct both the teams to submit their
reports to this Hon'ble court for judicial scrutiny.
(v) issue any other appropriate writ, order or direction
as this Hon'ble Court may deem fit and proper in the
facts and circumstances of the case."
LPA 340/2018 Page 2 of 17
3. Union of India, Ministry of Health & Family Welfare (Central
Government, for short) and Medical Council of India are Respondent Nos. 1 and
2 in the present appeal. Respondents have been authorized and empowered to
grant permission to establish and renew permission for accreditation of medical
colleges, under and as per the Indian Medical Council Act, 1956 (Act, for short),
and Establishment of Medical College Regulations, 1999 (Regulations, for short).
4. Facts
in brief are:-
4.1. Dr. Jagat Narain Subharti Charitable Trust, has established Shridev Suman
Subharti Medical College, Dehradun, Uttarakhand.
4.2. Applications filed by the appellants for grant of permission to start medical
college from the academic sessions 2013-14, 2014-15 and 2015-16 were declined
and rejected for various reasons, which we need not elaborate for the present
decision.
4.3. Appellants' request for permission/approval for the academic session
2016-17 was initially denied by the Medical Council of India, but subsequently
granted on the directions of the Oversight Committee constituted by the Supreme
Court, vide formal letter of permission dated 26th September, 2016 for intake of
150 students.
4.4. Subsequently, Medical Council of India vide communication dated 15th
January, 2017 had written to the Central Government to revoke the permission.
Consequent thereto the Director General of Health Services had afforded personal
hearing to the appellants on 17th January, 2017.
4.5. Having failed to receive intimation from the competent authority, the
appellants had filed writ petition (C) No. 513/2017 before the Supreme Court. In
the meanwhile by communication-cum order dated 14th August, 2017 of the
Central Government, the appellants were debarred from admitting students for
the academic sessions 2017-18 and 2018-19.
4.6. Supreme Court vide judgment dated 30th August, 2017 revoked the
decision of the Central Government dated 14th August, 2017 and the appellants
were permitted to admit up to 150 students till 5th September, 2017 for the
academic session 2017-18. We shall subsequently refer to the relevant paragraphs
of the said judgment on the question of college inspection.
4.7. In view of the said judgment, Medical Council Of India wrote letter dated
5th September, 2017 to the appellants' to apply in terms of Regulation 8 (3) (1) of
the Regulations for renewal of permission for admission of 3rd batch of 150
MBBS students for the academic session 2018-19. Appellants were required to
make their application by 15th September, 2017. We shall subsequently refer to
the contents of this letter.
4.8. Thereupon on 15th September, 2017, the appellants had applied for grant
and renewal of permission for admission of 3rd batch of 150 MBBS students for
the academic session 2018-2019.
4.9. Appellants simultaneously by letter dated 15th September, 2017 had
requested the Medical Council of India to conduct their assessment after 30th
November, 2017. We shall subsequently quote a portion of the statement made by
the appellants in this letter.
4.10. On 11th October, 2017, a team appointed by Medical Council of India had
visited the appellant hospital for assessment of physical and other teaching
facilities. However, they were not permitted and allowed to conduct inspection.
Relevant portion of the inspection report is reads:-
" We, the undersigned assessors reached Shridev Suman
Subhati Medical college, Dehradun, Uttarakhand at 9.40
am on 11/10/2017, for the Assessment of the physical and
the other teaching facilities available for renewal of
permission of 3rd Batch (150 MBBS Seats) of the above
college as per the reference cited above.
The Principal Dr. Rajesh Misra was not available, we
met the officiating Principal Dr. Debarata Roy who
informed us that the Principal is on leave. We then handed
him the official communication for Assessment from MCI
which he received and signed. He then informed us that the
college does not want the assessment to be undertaking
today by us. They have given us an undertaking citing
reasons for their reluctance for today's assessment.
Please find enclosed the following:
1. Photographs of the hospital taken by our mobiles which
shows near empty OPDs giving the hospital a vacant look.
(Soft (Pen drive) and hard copies enclosed).
2. Official communications received by us from MCI and
received and signed by the Dean.
3. Letter from Principal(Officiating) denying us to carry
out the assessment today.
Leave application of Principal Dr. Rajesh Misra dated 6/10/2017"
4.11. Appellants' by letter dated 11th October, 2017 addressed to the Secretary
of the Medical Council of India had referred to their earlier letter dated 15th
September, 2017 and reiterated that they were not prepared for assessment, and
that assessment/inspection should be done after 30th November, 2017.
4.12. On 1st December, 2017 appellants' wrote another letter to the Joint
Secretary of the Medical Council of India stating that after receipt of letter dated
5th September, 2017, appellants had started process of re-enforcing the college
resources in terms of infrastructure, teaching and other facilities to achieve the
minimum standard requirement and annual target.
4.13. Executive Committee of the Council in its meeting held on 14th December,
2017 decided not to recommend grant/renewal of permission for the 3rd batch of
150 students for the academic year 2018-19. This decision was in view of denial
of assessment by college authorities and photographs taken by the inspection
team, showing nearly empty OPD's and the vacant look of the hospital.
Correspondence exchanged, letter of officiating principal and leave application of
the principal were noticed and considered. Decision of the Executive Committee
was communicated to the appellants vide letter dated 22nd December, 2017.
4.14. Decision of the Executive Committee was approved by the Oversight
Committee on 3rd January, 2018 and the Central Government was informed by
letter dated 6th January, 2018.
4.15. The appellants' were granted personal hearing in the Ministry of Health
and Family Welfare on 5th February, 2018 in terms of Section 10A(4) of the Act.
4.16. Hearing Committee after considering the submissions/compliances
furnished and other material on record observed that appellant hospital was not
ready for inspection. They agreed with the Medical Council of India's disapproval
for grant/renewal of permission.
4.17. The Central Government vide order dated 20th April, 2018 rejected the
argument of the appellants that inspection should have been deferred since the
principal was not available. It was observed that the appellant college had not
ceased to function for 15 days when the principal was travelling abroad.
Management should have made arrangements for an officiating principal. Further
the appellant college could not rely on the year wise time bound programme as to
dictate when the 2nd renewal inspection should be carried out. Central
Government, on due consideration accepted and agreed with the recommendation
of the Medical Council of India, Oversight Committee and Hearing Committee.
Prayer for renewal of permission for admission of the 3rd batch of 150 MBBS
students for the academic session 2018-2019 was rejected.
5. We may now refer to the contentions raised by the appellants' before
us. Referring to the target year-wise time bound programme it was
submitted that the appellants' had to make additions to examination hall-
cum-auditorium, lecture theatre of 180 capacity, central library of 600
square meters, purchase additional books etc. by the end of December,
2017-18. Therefore, the appellants were justified in requesting the Medical
Council of India to undertake assessment and inspection after 30th
November, 2017. The respondents' were unreasonable and irrational when
they rejected the request for inspection after 30th November, 2017. The
appellants' were compelled to file Writ Petition (C) No. 2453/2018 in the
High Court as the Central Government had failed to pass any order in spite
of their repeated requests, after the negative report of Medical Council of
India vide communication dated 6th January, 2018. Our attention was drawn
to order of the Supreme Court whereby the appellants' were granted
approval/renewal for the second batch and the finding that the appellant had
made full compliance. Reference was also made to the impugned decision
and observations of the single Judge that there was some justification in the
appellants' request to the Medical Council of India to postpone the
inspection.
6. Having considered the contentions we do not find any justification
and good cause to interfere with the final directions and findings of the
learned single Judge. The appellants' were well aware and conscious of the
fact that they had to apply for approval/renewal for admission of the 3rd
batch for the academic session 2018-19. To achieve and secure approval,
the appellants had to meet and satisfy the statutory requirements of doctors,
faculty, residents, and meet the parameters of physical infrastructure, OPD
attendance and bed occupancy etc.
7. The appellants' had not sought and applied for renewal/approval for
the 3rd batch for the academic session 2018-19. Pursuant to the judgment of
the Supreme Court dated 30th August, 2017, to give an opportunity to the
appellants, Medical Council of India by communication dated 5th
September, 2017 had required the appellants' to apply by furnishing
standard application assessment form and declaration forms of the faculty
and residents. This letter had made reference to Regulation 8, which we
shall be quoting subsequently, and stated that permission for renewal would
require examination and satisfaction in terms of infrastructure, teaching and
other facilities including requisite hostel facilities for boys and girls, staff,
provision for extra beds and corresponding infrastructure in the existing
hospital as provided in the time bound action plan. These aspects would be
assessed by the assessors. The appellants' were required to furnish
declaration from the teaching faculty and residents personally working with
the appellant college along with necessary enclosures by each teacher and
resident mentioned in the declaration form. Copy of documents required
from faculty and residents were stated and mentioned. Dean/Principal was
to sign the declaration form after he had satisfied himself about the
correctness and veracity of the contents of the declaration.
8. The appellants in their letter dated 15th September, 2017 had accepted
their difficulty in complying with the statutory conditions. They had
written:-
"A few of the faculty members and residents had
expressed their desire to resign before we got the
permission of the Central Government on 31.08.2017,
because they were worried about their future and
career. We are trying to convince them to stay back as
the Central Government has granted us the permission
to admit second batch of student in the academic
session 2017-2018. However, we are not sure whether
they will like to continue or not. In case they prefer
to/insist on resigning from their posts, new Faculty
members/Residents will be recruited immediately."
The aforesaid letter effectively accepts that the appellants did not
have necessary infrastructure in place and were not in a position to meet
essential statutory conditions for renewal. They had stated that faculty
members and residents had expressed desire to resign in the absence of
permission/renewal for they were worried about their future and career. In
case of any resignation, new faculty member/resident would be
immediately recruited. Appellants had stated that they would be speeding
up efforts to be ready for inspection for the 3rd batch after fulfilling the
criteria in terms of infrastructure, faculty and clinical material to meet the
requirements of the rules. It was likely that these would be met by 30th
November, 2017 and not earlier.
9. What is most disturbing and unacceptable is the conduct of the
appellants when the inspection team had visited the hospital/college on 11th
October, 2017. On the said date, the inspection team was not permitted and
allowed to carry out the inspection. We have already reproduced contents of
the report dated 11th October, 2017, given by the inspection team. The
report refers to the photographs taken by mobile phone, which showed
nearly empty OPD's, giving the hospital a vacant look. This, conduct and
grave lapse, and as rightly held by the single Judge was unacceptable and
would merit and justify rejection of the application for renewal of
permission to the 3rd batch for the academic session 2018-19.
10. Supreme Court in paragraphs 14 and 16 of the judgment dated 30 th
August, 2017 in the writ petition filed by the appellants, had observed:-
"14. This decision, however, will not be an impediment
for the MCI and the competent authority to inspect the
college as and when deemed fit and, if any deficiency
is found after giving opportunity to the petitioner-
college, to proceed against the college in accordance
with law. That arrangement will subserve the ends of
justice and also ensure larger public interest. For, the
compliant medical college, having capacity to admit up
to 150 students for the MBBS course in the academic
session 2017-18, will not have to face the situation of
its 150 seats remaining unutilized entailing in denial of
opportunity to 150 aspiring students who are desirous
of pursuing medical course but are unable to take
admission in other medical colleges in order of their
merit.
xxx
16. Considering the fact that the admission process for
the academic session 2017-18 is still in progress and
the last date fixed for counseling is 31st August, 2017,
we are inclined to issue directions to all concerned to
permit the petitioner-college to admit up to 150
students until 05.09.2017 to the MBBS course for the
academic session 2017-18, with liberty to MCI and the
competent authority to inspect the petitioner-college
and if any deficiency is noticed, to proceed against the
petitioner-college in accordance with law."
Thus, it was clear that Medical Council of India and the Competent
Authority could inspect the appellant college as and when they deemed fit
and on any deficiency being noticed the authority was required to proceed
against the appellants in accordance with law. This, the Supreme Court had
observed, would sub-serve the ends of justice and ensure larger public
interest. Time for counselling, etc. was extended for the academic session
2017-18 as litigation had remained pending in the Supreme Court and was
decided vide order dated 30th August, 2017. Failure and refusal to permit
inspection on 11th October, 2017 was wrong and contrary to the
observations of the Supreme Court and the law.
11. Supreme Court in Madha Medical College and Research Institution
Though its Managing Director versus Union of India and Another,
(2017) 15 SCC 791, with reference to the importance of inspection has
held:-
"17. While considering the above submissions, we must
make it clear at the outset that we are not impressed with
the argument that MCI is prohibited from conducting a
second or subsequent inspection. The purpose of
inspection by an expert team of assessors is to verify
whether a medical college has the requisite infrastructure
and facilities including faculty, residents as well as
clinical and non-clinical material. The basic purpose of
inspection is to verify whether the college possesses the
wherewithal and resources to provide quality legal
education consistent with the statutory regulations which
hold the field. The powers of MCI cannot be constricted
by prohibiting it from carrying out another inspection,
even it were to come close on the heels of an earlier
inspection. As an expert statutory body, MCI may have
legitimate reasons for seeking a reverification of the
observations contained in a prior inspection. There may be
reasons to doubt the genuineness of the picture which has
been made out by the college during the course of an
inspection. MCI may have prima facie reasons, to believe
that the actual possession of resources and infrastructure is
at variance with what was portrayed before its team of
assessors. MCI has been conferred with statutory powers
to protect the cause of medical education. MCI is a
custodian of public interest and acts in trust for the welfare
of society. Access to medical care requires the presence of
qualified health professionals. Verification of the
conditions which prevail in medical colleges is central to
the role discharged by MCI. Hence, it would be manifestly
contrary to public interest to restrict the powers of MCI to
carry out a fresh inspection even though in its considered
decision, such an inspection is necessary. This court
cannot sit in judgment over the wisdom of an expert body
and we find no basis to hold in law that there is a
prohibition in carrying out a fresh inspection. In the
absence of a statutory interdict, the court will not read
such a restriction into the powers of MCI. In these
circumstances, we find no merit in the submission."
Thus Medical Council of India as a statutory body and being a
custodian of public interest is empowered to carry out inspections even if it
comes close to the heels of an earlier inspection. Court(s) cannot sit in
judgment over the wisdom of an expert body as to when and what time they
should conduct inspection. In fact, failure to conduct inspection and
undertake assessment would be unacceptable.
12. Supreme Court in Royal Medical Trust versus Union of India,
(2015) 10 SCC 19 had referred to Regulation 8 and right, duty and
obligation of Medical Council of India to carry out inspections. Inspection,
by its very nature must have an element of surprise as this ensures that the
required facility and infrastructure are always in place and not borrowed or
put up temporarily. This judgment also highlights that time lines fixed for
compliance should be adhered to and followed.
13. Learned Senior Advocate appearing for the appellants had drawn our
attention to paragraph 33 of the aforesaid judgment and submitted that the
Central Government was statutorily empowered to modify the schedule and
hence, in the facts of the present case, the Central Government would have
directed fresh inspection. This argument for the reasons stated below must
be rejected.
14. Regulation 8(3)(1) reads as under:-
"(3) (1). The permission to establish a medical college
and admit students may be granted initially for a period of
one year and may be renewed on yearly basis subject to
verification of the achievements of annual targets. It shall
be the responsibility of the person to apply to the Medical
Council of India for purpose of renewal of six months
prior to the expiry of the initial permission. This process
of renewal of permission will continue till such time the
establishment of the medical college and expansion of the
hospital facilities are completed and a formal recognition
of the medical college is granted. Further admissions shall
not be made at any stage unless requirements of the
Council are fulfilled. The Central Government may at any
stage convey the deficiencies to the applicant and provide
him an opportunity and time to rectify the deficiencies.
Note: In above clause "six months" shall be
substituted by "as per latest time schedule"
PROVIDED that in respect of
(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. "
15. "Six months" in above clause was substituted by "as per the latest
time schedule" with effect from 14th June, 2016. The applicable schedule
effective from 14th July, 2016 reads as under:-
"*The above SCHEDULE has been substituted with the
following:
TIME SCHEDULE FOR RECEIPT OF APPLICATIONS
FOR ESTABLISHMENT OF NEW MEDICAL
COLLEGE/RENEWAL OF PERMISSION AND
PROCESSING OF THE APPLICATIONS BY THE
CENTRAL GOVERNMENT AND THE MEDICAL
COUNCIL OF INDIA.
S Stage of processing Last Date
No.
1. Receipt of applications by the Between 15th June to
Central Government 7th July (both days
inclusive) of any
year
2. Forwarding application by the By 15th July
Central Government to Medical
Council of India
3. Technical Scrutiny, assessment By 15th December
and Recommendations for Letter
of Permission by the Medical
Council of India
4. Receipt of reply/compliance from Two months from
the applicant by the central receipt of
Government and for personal recommendation
hearing thereto, if any and from MCI but not
forwarding compliance by the beyond 31st January.
Central Govt. to the Medical
Council of India.
5. Final recommendations for the By 30th April
letter of permission by the
Medical Council of India
6. Issue of Letter of Permission by By 31st May
the Central Government
Note: In case of renewal of permission, the
applicants shall submit the application to the Medical
Council of India by 15th July."
(emphasis supplied)
As per the said schedule, the last date for receipt of application by the
Central Government is 7th July of any year. Central Government is to
forward applications to the Medical Council of India by 15th July. In case
of renewal, application is to be filed by 15th July. Medical Council of India
is to thereafter carry out and undertake technical scrutiny and assessment
and submit their recommendation by 15th December, each year. We had
earlier reproduced paragraphs 14 and 16 of the order passed by the Supreme
Court for the academic year 2017-18. Medical Council of India could have
carried out inspection at any time even in respect of the academic year
2017-18. Further, notwithstanding litigation for the earlier academic year,
the appellants were aware and conscious of the norms and conditions
required to be satisfied for the approval for the new or 3rd batch of 150
students for academic session 2018-19. The appellants should have been
ready in all respects. Thus the contention, predicated on the judgment for
the academic session 2017-18 and, therefore, time for upgradation should
have been granted and inspection should have been postponed beyond 30th
November, 2017 is fallacious and should be rejected.
16. Similarly, reliance placed by the appellants on year-wise targeted
programme with reference to the additional infrastructure facilities, which
the appellants had to provide by December, 2017-18, during the period of
second renewal, according to us, is an afterthought and pretence. This plea
was not taken by the appellants' in their letter dated 15th September, 2017
quoted above. Inspection was denied and not permitted by the appellants as
necessary infrastructure was not in place. Year wise targeted programme
that had required additional and new facilities to be set up and completed
by December, 2017-18, and was not and could not have been the ground to
deny and not permit inspection. The inspection team would have examined
the existing facilities and duly take note of year-wise targeted programme.
17. In view of appellants' conduct in not permitting and allowing
inspection on 11th October, 2017 and other aspects and facts noticed above,
we hold the respondents were justified and correct in denying renewal/
permission for admission of 3rd batch of 150 MBBS students for the
academic year 2018-19.
18. Manish Verma, Trustee of Sri Sri 1008 Narayan Swami Charitable
Trust has filed application for impleadment, C.M. No. 26058/2018,
asserting that the appellants are not the owner of 20 acres of land. We need
not go into said controversy in the present case in view of our findings
recorded above. We clarify that we have not given any observations on
findings on the inter se disputes between the appellants and the applicant in
CM No. 26058/2018.
19. In view of the aforesaid discussion we do not find any merit in the
present appeal and the same is dismissed with no order as to costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
JULY 19, 2018
MR/NA
