Delhi High Court
Sindhudurg Shikshan Prasarak ... vs Board Of Governors In ... on 26 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) 6926/2019 & CM APPL.28799/2019
Judgment reserved on :20.08.2019
Date of decision : 26.08.2019
Sindhudurg Shikshan Prasarak Mandal ..... Petitioner
Through: Through: Mr. J.P. Sengh, Sr.
Advocate with Mr. Om
Prakash, Ms. Manisha Mehta,
Mr. Shashi Pratap Singh, Mr.
R.L. Sinha & Ms. Pallavi
Nagar, Advocates.
versus
BOARD OF GOVERNORS IN SUPERSESSION OF
MEDICAL COUNCIL OF INDIA AND ANR..... Respondents
Through: Mr. Vikas Singh, Sr. Advocate
with Mr. T. Singhdev, Ms. Puja
Sarkar, Ms. Biakthan Sanghi,
Mr. Tarun, Ms. Arunima Pal &
Mr. Abhijeet, Advocates for
MCI.
Mr. Vivek Gotal, CGSC for
UOI.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner seeks the quashing of order contained in letter
no.MCI-34(41)(F-30)/2019-Med/20090 dated 30.05.2019 by which
the respondent disapproved the scheme of the petitioner for
establishment of a new college of 150 MBBS students for the
academic session 2019-20 and seeks the directions to the respondent
to issue a letter of permission for the petitioner's college with 150
MBBS students annual intake for academic session 2019-20.
2. The petitioner Sindhudurg Shikshan Prasarak Mandal, District
Sindhudurg, Maharashtra is a registered charitable institute vide
registration no.Maharashtra/800/Sindhudurg dated 05.11.1993 and is
stated to have started the 300 bedded hospital and medical college
claimed to have infrastructure to teach and train 150 MBBS students
annually and submits that it is continuously providing health care
facilities to the needy and to those who cannot afford the same and an
Essentiality Certificate for establishing the medical college with the
annual capacity of 150 MBBS seats is indicated to have been issued
by the Government of Maharashtra on 23.05.2018.
3. The Consent of Affiliation was issued to the petitioner by the
Maharashtra University of Health Science at Nashik on 30.06.2018 for
the proposed college with the intake capacity of 150 seats to be
established for Post Harkul Budruk, Tal. Kankavli, District
Sindhudurg, Maharashtra subject to grant of permission by the
Government of India, Ministry of Health and Family Welfare, New
Delhi under Section 10A by the Indian Medical Council Act, 1956
(IMC Act, 1956). The note on the said Consent of Affiliation
categorically reads to the effect:
"No students shall be admitted by the college, unless final
permission is obtained from the Government of India,
G.R. from State Govt. and First Time Affiliation from
MUHS u/s 65 (6) of MUHS Act 1998."
4. The petitioner on 04.07.2019 submitted its application with all
requisite enclosures to the Ministry of Health and Family Welfare with
the requisite costs of assessment to the Secretary, Ministry of Health
and Family Welfare, Government of India for the grant of the letter of
permission under Section 10Aof the IMC Act, 1956 for establishment
of the medical college for the academic year 2019-20.
5. The assessment report of the assessment conducted by the
Council Assessor on 04-05.12.2018 along with summary/observations
of the member of the Undergraduate Expert Group was considered by
the Board of Governors noting to the effect:
"No gross deficiency noted in the report.
However, there was mismatch of statement provided in
Form A1 of assessment report and the findings reported
in the Assessment Form II on the day of Assessment for
the following:-
1. DailyOFD-709
2. OT- 4+2 cases [Form A shows 6 +12 surgeries on
average.)
3. No deliveries (Form A shows1-3 deliveries on average)
4. No Histopath - (FormAshows5 Histopath on average)
5. Only 03 Cytopath samples.
6. In Ophthalmology OFD, Refraction room has been
shown but no apparatus available, No apparatus in dark
room.
7. In Pediatric, Child Welfare Clinic, Immunization
Clinic, Child Rehabilitation Clinic have been shown but
are reported to be non-functional."
6. As a consequence thereof, the Medical Council of India vide its
letter dated 18.01.2019 sought an explanation/ pointwise compliance
with documentary evidence in support of the claim of rectification of
the deficiencies noted by the Board of Governors from the college
authorities within 30 days and on receipt of compliance from the
college authority, the compliance verification assessment of the
petitioner was carried out by the Council Assessor on 16.04.2019.
7. As per the impugned order, the college authorities did not allow
the assessor to verify the teaching facilities and residents stating that
there was no gross deficiency of faculty and residents doctors in the
last inspection held on 04-05.12.2018. The competent authority
considered it appropriate to carry out another Compliance Verification
Assessment of the petitioner, which was thus carried out on
03.05.2019, in which, the Board of Governors considered the
Compliance Verification Assessment Report dated 03.05.2019 with
the summary/observations of the member of the Undergraduate Expert
Group appointed by the BoG and noted the following deficiencies:
"1. Deficiency of Faculty 36.9%
2. Deficiency of Residents 45.6%"
8. The petitioner's institute was thus granted a hearing on
17.05.2019 in terms of Section 10A (4) of the IMC Act, 1056 in the
Council Office to present the case of the institute in view of the
deficiencies and the Hearing Committee after considering the
submission/compliance furnished by the college observed to the
effect:
"The Hearing Committee expressed its displeasure to the
college authorities for not allowing the MCI assessors to
verify teaching faculty and residents on 16th April, 2019
and noted that the college merely given undertaking
stating that the Faculty and Residents who were present
in the first assessment are still continuing.
The explanation offered by the college authorities stating
that the assessment that was carried out on 3rd May,
2019 was in violation of the MCI regulations as it
followed within two days of a holiday (1st of May2019 -
Maharashtra Day / Labour Day). The Hearing Committee
however, was not satisfied with this explanation, since as
per Regulations in Clause 8(3)(l)(d) the assessment was
not carried out at least 2 days before and 2 days after an
important religious festival / holiday declared by the
Central/State Govt. 1st of May 2019 - Maharashtra Day /
Labour Day is not an important religious festival.
The explanation offered by the college authorities
regarding the Faculty deficiency of 36.9% and Resident
deficiency of 45.6% noted by the Assessors on verification
of compliance on 3rd May, 2019 was found
unsatisfactory.
Hence, the Hearing Committee recommended not to grant
Letter of Permission for establishment of new medical
college at Sindhudurg, Maharashtra u/s l0A of the IMC
Act, 1956, for 150 MBBS seats for the academic session
2019-20."
and thus accepting the recommendation of Hearing Committee, the
Board of Governors in supersession of the Medical Council of India
disapproved the scheme for establishment of a new medical college by
Sindhudurg Shikshan Prasarak Mandal, Sindhudurg, Maharashtra
under Section 10A of the IMC Act, 1956 for the academic year 2019-
20 stating however to the effect that the petitioner was free to apply
afresh for the next academic session strictly as per provision of IMC
Act, 1956 and Regulations framed thereunder.
9. The petitioner is aggrieved by the factum that the respondent
chose to conduct an inspection on 03.05.2019 in violation of the
Regulation 8 (3)(1)(d) of the Medical Council of India Establishment
of Medical College Regulations, 1999 in as much as the assessment
was carried out on 03.05.2019 and was within two days after the
holiday i.e. 01.05.2019- Maharashtra Day/ Labour Day.
10. Regulation 8 (3)(1(d) of the Medical Council of India
Establishment of Medical College Regulations, 1999 reads to the
effect:
"(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.
However, the office of the Council shall ensure
that such inspections are not carried out at least 3 days
before upto 3 days after important religious and festival
holidays declared by the Central/ State Govt.
(2) The recognition so granted to an Undergraduate
Course for award of MBBS degree shall be for a
maximum period of 5 years, upon which it shall have to
be renewed.
(3) The procedure for 'Renewal' of recognition shall
be same as applicable for the award of recognition.
(4) Failure to seek timely renewal of recognition as
required in sub-clause (a) supra shall invariable result in
stoppage of admissions to the concerned Undergraduate
Course of MBBS at the said institute."
11. During the course of submissions that were made on behalf of
either side, it was submitted on behalf of the MCI that in as much as
after the inspection which the petitioner did not permit to be
conducted on 16.04.2019, the assessment was carried out on
03.05.2019, thus it is the verification which is conducted on
03.05.2019, which is to be considered, it brought forth deficiencies of
faculty of 36.9% and deficiency of residents of 45.6%. The petitioner
submits that the same was only due to the factum that the inspection
was conducted on 03.05.2019 i.e. two days after the important
religious festival of May Day observed in the State of Maharashtra.
12. The petitioner submits that it had communicated its list of
holidays for the month of April, 2019 to the Secretary General of the
Board of Governors vide its letter dated 12.04.2019 to the effect:
"To
The Secretory General,
Board of Governors,
In Supersession of Medical Council of India
New Delhi-110077
India.
Subject: Requesting you to consider list of holidays for
the month April 2019 at SSPM Medical College &
Lifetime Hospital, Padve, Sindhudurg, Maharashtra.
Respected Sir,
On the account of national holidays on 13th April 2019
(Shree Ramnavami), 17th APRIL 2019 (Mahaveer
Jayanthi) and 19th APRIL 20l9(Good Friday), our
college will remain closed. Further on the 23rd APRIL
2019, in Sindhudurg constituency Lok Sabha election
voting will be held. So in the view of election college will
remain closed on 23rd APRIL 2019.
S. Date of holiday Holiday declared in
No. SSPM
th
1. 13 APRIL 2019, SHREE RAMNAWMI
(SATURDAY)
2. 17th APRIL 2019 MAHAVEER
(WEDNESDAY) JAYANTHI
3. 19th APRIL 2019, GOOD FRIDAY
(FRIDAY)
th
4. 23 APRIL 2019, ACTUAL VOTING DAY
(TUESDAY) IN SINDHUDURG
DISTRICT
(LOK SABHA)
As the teaching & non-teaching stall members have to
travel along distance in this hilly area district for casting
their valuable vote on 23rd April 2019. We are likely to
sanction leave for them on 22nd April 2019 for the same.
In the view of above said holidays in SSPM Medical
College and lifetime Hospital, Padve, Sindhudurg,
Maharashtra, kindly consider our holidays up to 23rd
April 2019 & Please do the needful."
13. Public holidays notified by the General Administration
Department of the Government of Maharashtra shows the Maharashtra
Day i.e. 1st May, 2019 to be a public holiday and was notified as a
public holiday under section 25 of the Negotiable Instruments Act,
1881.
14. The petitioner submits that vide the letter dated 08.05.2019 in
relation to the compliance MCI inspection held on 03.05.2019, the
petitioner wrote to the Board of Governors in super session of the MCI
to the effect:
"With reference to above subject compliance MCI
inspection was held on 3rd May 2019, which falls on 2nd
day of state government declared holiday on 1st MAY 2019
in the view of Maharashtra day (gazette enclosed). Further
which inspection was carried out in contradiction to the
Clause 8(3)(1)(d) (MCI Regulations 1999, page No, 20,
Copy enclosed).
However, the inspection was held during summer
vacation period declared by the Maharashtra University of
Health Sciences, Nasik between 17th April 2019 and 23rd
MAY 2019 (Vide order Letter No.MUHS/R/XA/6157/2018,
Circular No-47 dated 05/07/2018- Copy enclosed)
In the view of above points we were unable to fulfil 100%
faculty and residents on the day of inspection i.e. 3 rd MAY
2019. We therefore requesting you to consider our points
sympathetically and issue the Letter of Permission for the
academic year 2019-20 in the good faith of Society."
and thus the petitioner submits that apart from the factum that the
inspection was conducted two days after 01.05.2019, a public holiday
declared by the State Government of Maharashtra, apart from the
same, the inspection had been held during the summer vacation
declared by the Maharashtra University of Health Science from
07.04.2019 to 23.05.2019, as a consequence of which, the petitioner
had not been able to fulfil the 100% faculty and residents on the date
of the inspection i.e. 03.05.2019.
15. As per the Notification No.PHD.1118/C.R.191/Dest-29 issued
by the Government of Maharashtra, the public holidays for the year
2019 are as under:-
Sr.No. Holiday Date Saka Date Day
Republic Day 26th 6 Magh, Saturday
1. January 1940
Chhatrapati 19th 30 Magh, Tuesday
2. Shivaji February 1940
Maharaj 2019
Jayanti
Mahashivratri 4th March 13 Monday
3. 2019 Phalguna,
Holi (Second 21st March 30 Thursday
4. Day) 2019 Phalguna,
Gudhi Padwa 6th April 16 Chaitra, Saturday
5. 2019 1941
Ram Navmi 13th April 23 Chaitra, Saturday
6. 2019 1941
Mahavir 17th April 27 Chaitra, Wednesday
7. Jayanti 2019 2019
Good Friday 19th April 29 Chaitra, Friday
8. 2019 1941
Maharashtra 1st May 11 Wednesday
9. Din 2019 Vaishakha,
Buddha 18th May 28 Saturday
10. Pournima 2019 Vaishakha,
Ramzan0Id 5th June 15 Jeshtha, Wednesday
11. (Id-Ul-Fitr) 2019 1941
(Shawal-1)
Bakri ID (Id-12th August 21 Monday
12. Uz-Zuha) 2019 Shravana,
th
Independence 15 August 24 Thursday
13. Day 2019 Shravana,
Parsi New 17th August 26 Saturday
14. Year 2019 Shravana,
(Shahenshahi) 1941
nd
Ganesh 2 11 Bhadra, Monday
15. Chaturthi September 1941
Moharum 10th 19 Bhadra, Tuesday
16. September 1941
Mahatma 2nd October 10 Ashvina Wednesday
17. Gandhi 2019 1941
Jayanti
Dasara 8th October 16 Ashvina, Tuesday
18. 2019 1941
Diwali (Bali 28th 6 Kartika, Monday
19. Pratipada) October 1941
Guru Nanak 12th 21 Kartika, Tuesday
20 Jayanti November 1941
Christmas 25th 4 Pausha, Wednesday
21 December 1941
16. The petitioner has further submitted that the as per the letter
dated 15.04.2019 issued by the Government of Maharashtra it was to
celebrate the 1st of May, 2019, i.e. the Maharashtra Day in the
following manner:-
"The Maharashtra State is completing 59 years to its
formation as state on 1 May 2019 on this occasion the
state has decided to conduct various program throughout
the state as described in column 'A' all the concerned are
required to implement it accordingly.
(A) The flag hosting program shall be held at 8 am
exactly in Mumbai Divisional offices, District HQ, Sub
Divisional HQ, Tahasil Offices etc. No any Govt./ Semi
Govt. program shall be arrange during 7.15 am to 9 am
so that maximum number of people can attend this
major function. If any institution or offices are
interested to conduct flag hosting program they can do
so on or after 9 am or before 7.15 am.
(B) The Police Parade, Home Guard, Fire Brigade
Parade shall be conducted during flag hosting program at
Mumbai Divisional offices, District HQ.
(C) The arrangement of lighting shall also be
decorated on all Divisional & District HQ and also on
Govt. Offices.
(D) The cultural program should be held usually at
Mumbai Divisional offices, District HQ. However the
object of the program is to remember the martyr or
patriotism. Entertainment should not be there in such a
program. The necessary measurement shall be taken up
by cultural department in this regard.
(E) The morning procession shall also be conducted
at all Divisional offices, District HQ, Sub Divisional
Office.
(2) The IG shall arrange common parade program by
consulting with District Collector, Divisional
Commissioner and the officer of the squad which often
take part in parade.
(3) All the Divisional Commissioner and the Collector
shall manage the program at their respective HQ place
with consideration of concerned people. The concerned
guardian minister shall complete the flag hosting at
District and Divisional Level. However the minister and
minister for state shall perform flag hosting at below
mentioned District and Divisional HQ and Collector shall
perform flag hosting at Buldhana District HQ.
Sr. No. District/ Divisional H.Q. Ministers who
perform flag hosting
Sr. District/ Ministers who perform flag
No. Divisional H.Q. hosting
1. Vardha Prakash Mehata, Minister
2. Aurangabad Divakar Ravate, Minister
3. Bandara Mahadev Jankar, Minister
4. Konkan Division Vidya Thakur, Minister
HQ Navi Mumbai
5. Kolhapur Sadashiv Khot, Minister
(4) The MLA will perform flag hosting program at
Tahasil Offices as per Govt. of Maharashtra GR. No.
CER.1015/901/30 dt. 22/04/2015.
(5) If by any unavoidable circumstances the Minister and
people representative fails to reach the program then
Divisional Commissioner and Collector and District HQ
and Tahasildar at Tahasil will perform the flag hosting
program with utmost caution.
(6) All the concerned are thereby informed due to the
implementation of code of conduct.
A) The regular place of flag hosting cannot be change.
B) The stage prepare for Maharashtra Day program
cannot be use as political stage.
C) The speech of the Guardian Minister shall only related
to historical background, work of historical person etc.
and they shall not use any political agenda in speech. The
speech shall only describe the sacrifice of martyr and
national interest.
7) On 1 may 2019 in all public and Govt. buildings/place
(Rural area also) important historical fort (e.f. Raigad,
Shivnery, Purandar, Pratapgad, Chandrapur etc.) the
Indian Tri colour must be hosted.
8) The rules regarding flag hosting given in Govt. GR.
FLG- 1019/30 dated 20/03/1991, KR.FLG-1091/(2)/ 30
dt. 05/12/1991, Circular no. FLG 1098/343/30 dt.
11/03/1998 shall be strictly followed. The precaution
should be taken that flag is in good condition and shall be
down by sunset. The preparation of the program shall
also be conducted.
9) The national anthem of Jan Gan Man shall be sing
while saluting the flag. Everyone should not communicate
during that time. The band prepared for salute program
shall be operated before and after the salute parade.
10) On 1 May 2019 in the evening the program shall be
arranged at Brhinmumbai Choupati, Nare Park, Bandra
(E), Govt. Employees."
17. The contention raised on behalf of the respondent is however to
the effect that the 1st of May, 2019 does not fall within the ambit of a
religious holiday nor within the ambit of the festival holiday and thus
does not fall within the ambit of an important religious nor an
important festival holiday.
18. However, the factum that the State Government has
declared the 1st of May, 2019 a public holiday cannot be ignored
and thus cannot be termed to be a non-important holiday.
19. The petitioner places reliance on the meaning of the word
'festival' as depicted in the Oxford English Reference Dictionary to
the effect:
"Festival /'festiv(a)l/n. & adj. ● 1. a day or period of
celebration, religious or secular. 2. a concentrated series
of concerts, plays, etc., held regularly in a town etc. (Bath
Festival). ● attrib. adj. of or concerning a festival. [earlier
as adj.: ME f. OF f. med. L festivalis (as FESTIVE]."
to submit that the 1st of May i.e. Maharashtra Day would fall within
the ambit of a festival.
20. Undoubtedly, as observed hereinabove, the Maharashtra Day
being a public holiday declared by the State Government with
celebrations provided therefor would essentially have to fall within the
ambit of an important festival holiday, within the ambit of Section
8(3)(1)(d) of the Medical Council of India Establishment of Medical
College Regulations, 1999.
21. However, the contentions that have been raised on behalf of the
respondent cannot be overlooked despite the factum that it is held
herein that the 1st of May for the State of Maharashtra being a State
public holiday with festivity organized on the said day by the State of
Maharashtra itself as per the letter referred to on behalf of the
petitioner indicating that the festivities had been so organized so that
maximum number of people participate in the same, nevertheless, the
factum that the report of the inspection brought forth a deficiency of
faculty of 36.9% and a deficiency of residents of 45.6%, cannot be
overlooked and the same have essentially to be read and considered in
the light of the contentions raised on behalf of the respondent that the
assessment being conducted on 16.04.2019 and 03.05.2019, on which
there was no important religious festival held as declared either by
the Central Government or State Government and on account of
the same, the patients admitted in the various Wards, ICUs, Labour
Rooms, admitted for various minor/ major operations could not have
been simply discharged and sent back home irrespective of their
medical condition and ailment and that thus, the contentions of the
petitioner to state that due to the festival of Mahavir Jayanti on
17.04.2019 and Maharashtra Day on 01.05.2019, the faculty members
and residents who work as doctors in the attached hospitals could be
permitted to either neglect the patients admitted in the hospital or
report late to the medical college, make it apparent that the
deficiencies observed on 03.05.2019 in the petitioner's institute cannot
be overlooked.
22. The contentions raised on behalf of the respondent to the effect
that the residents and faculty who discharge important functions in the
treatment of patients in the hospital attached to the petitioner medical
college cannot be on leave have essentially to be accepted.
23. In the circumstances, though undoubtedly, the inspections were
conducted on 16.04.2019 i.e. one day before the Mahavir Jayanti, a
public holiday declared by the State of Maharashtra and on 03.05.2019
i.e. two days after the 1st of May, 2019, which would both fall within
the ambit of an important religious and festival holidays respectively
in terms of Section 8(3)(1)(d) of the Medical Council of India
Establishment of Medical College Regulations, 1999, nevertheless, the
factum that the petitioner's college is yet to be established and was at
the stage of establishment for the academic session 2019-20 and did
not have a batch of students studying, the contention as raised on
behalf of the respondent to the effect that there was thus no question
of summer vacations being granted when there was no teaching or
training commenced has essentially to be accepted and that summer
vacations have to be for the students and that the faculty and residents
who work as doctors in the hospital cannot claim to be a summer
vacation to the detriment of the patients in the hospital has essentially
to be accepted taking into account the welfare and well being of
patients and taking the same into account, the deficiencies of 36.9% of
the faculty and deficiency of residents to the tune of 45.6% on the
basis of Compliance Verification Report made on 03.05.2019 i.e. two
days after 01.05.2019, on which date itself there was no important
festival or holiday, cannot be ignored and in the circumstances, the
impugned order passed by the respondent disapproving the scheme for
establishment of a new medical college as sought by the petitioner for
the academic session 2019-20 under Section 10A of the IMC Act,
1956 cannot be faulted with.
24. The petition and the accompanying application are thus
declined.
ANU MALHOTRA, J.
th
AUGUST 26 , 2019/vm
