Delhi High Court
Mulayam Singh Yadav Medical ... vs Union Of India & Ors on 29 August, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on :26.07.2019
Date of decision:29.08.2019
W.P.(C) 7159/2019 & & CM APPL. 29827/2019
MULAYAM SINGH YADAV MEDICAL COLLEGE & HOSPITAL
& ANR. ..... Petitioners
Through: Mr. Gaurav Bhatia, Sr. Adv.
with Mr. Utkarsh Jaiswal & Mr.
Himanshu Shekhar Tripathi,
Advocates.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Jasmeet Singh, CGSC for
R-1.
Mr. Vikas Singh, Sr.Adv. with
Mr. T. Singhdev, Ms. Puja
Sarkar, Mr. Tarun Verma, Ms.
Michelle, Mr. Abhijit Ms.
Arunima & Ms. Sumangla,
Advocates for MCI.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner no.1- Institute seeks the quashing of the
impugned order dated 18.05.2019 of the respondent no.2 i.e. the Board
of Governors in supersession of the Medical Council of India,
whereby the request of the petitioner College for grant of first renewal
of permission to admit the second batch of fresh 150 students in the
MBBS course for the academic year 2019-20, was disapproved and
the petitioner further seeks that the respondents be directed to grant 1 st
renewal of permission to the petitioner College to admit the second
batch of fresh 150 students in the MBBS course for the academic year
2019-20.
2. Vide the impugned order bearing No. MCI-34(41)(R-16)/2019-
Med./115172 dated 18.05.2019, it is indicated that with regard to
renewal of permission for the MBBS course for the 2nd batch (150
seats) to the Mulayam Singh Yadav Medical College & Hospital at
Meerut, U.P. under the Chaudhary Charan Singh University, Meerut
u/s l0A of the IMC Act, 1956 for the academic year 2019-20, an
assessment was carried out by the Council Assessors on 11th & 12th
December, 2018 and the Board of Governors in supersession of the
Medical Council of India noted the following deficiencies:-
"1. No faculty/residents have undergone basic course workshop in
Medical Education Technology.
2. No CME conducted.
3. No LT in hospital,
4. UG capacity in hostel 148 as against180.
5. Bed occupancy - 50.33% on day of assessment
6. No major and minor surgery done on the day of assessment.
7. No delivery on the day of assessment.
8. No CMO available in casualty
9. No static X-ray unit available in casualty.
10. OT shared by ophthalmology- ENT
-No septic OT
-One defibrillator available for all OTs.
11. No patient in clean, septic, eclampsia, labour room.
12. 800/1000 Static X-machine - short.
13. Cell separation facility not available In Blood Bank.
14. Research facility not available in Central Research Lab.
15. No projection screen in Demo Room of Pathology,
Pharmacology, Microbiology, Forensic Medicine and Community
Medicine.
16. In RHTC, no cold chain equipment available.
17. Deficiency of Faculty - 17.02%
18. Deficiency of Residents 25.53%.
19. Other deficiencies as pointed out in the assessment report"
and that the MCI vide its letter dated 31.01.2019 sought an
explanation/ point-wise compliance, with documentary evidence in
support of the claim of rectification of the deficiency noted by the
Board of Governors from the college authorities within 30 days,
thereupon on receipt of the compliance from the College Authorities,
the compliance verification assessment of the petitioner College was
carried out by the Council Assessors on 06.04.2019 and the Board of
Governors considered the compliance verification report dated
06.04.2019 along with the summary/ observations of the member of
the undergraduate expert group appointed by the BOG and noted some
deficiencies, which read to the effect:-
"1. Faculty deficiency 7.4% (>5%)
2. Resident Deficiency 8.5%. (> 5%)
3. No major or minor OT procedure on day of assessment, (same as
main assessment)
4. 64 X-rays on day of assessment."
3. The petitioner's Institute was thus granted a hearing on
07.05.2019 in terms of Section 10A(4) of the IMC Act, 1956 in the
Council Office to present its case in view of the said deficiencies and
thereafter, the Hearing Committee, after considering the
submissions/compliance furnished by the college observed as under:-
"The Hearing Committee noted that the clinical
material was consistently inadequate over the last two
assessments. The Hearing Committee also found the
explanation offered by the college authorities
unsatisfactory.
In view of the deficiencies of Faculty and Residents and
in view of inadequate clinical material, the Hearing
Committee recommended not to grant renewal of
permission for admission of 2nd batch of 150 MBBS
seats for the academic year 2019-20 at Mulayam Singh
Yadav Medical College & Hospital, Meerut, U.P.",
which recommendation of the Hearing Committee was accepted by
the Board of Governors in supersession of the Medical Council of
India, which thus decided not to renew the permission for admission
of the 2nd batch of the petitioner College for the academic year 2019-
20 and the petitioner was thus directed not to admit any students in the
MBBS Course for the academic year 2019-20, though the college was
held to be free to apply afresh for the next academic year strictly as
per the provisions of the IMC Act, 1956 and Regulations framed
thereunder.
4. The petitioner submits that the impugned order dated
18.05.2019 of the respondent no.2 is perverse and contrary to the IMC
Act, 1956 and is not a reasoned order and is in contravention of the
verdict of the Hon'ble Supreme Court in "Mohinder Singh Gill v.
Chief Election Commr.", (1978) 1 SCC 405, with specific reliance
having been placed on observations in paragraph 8 thereof, which read
to the effect:-
"8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its
validity must be judged by the reasons so mentioned and
cannot be supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court on account of a
challenge, get validated by additional grounds later brought
out. We may here draw attention to the observations of Bose,
J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the actings and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself."
.........."
5. The petitioner submits that it is a running medical college and is
a fully compliant institution and that certain non-existing deficiencies
have been artificially generated/created by the assessment team of the
respondent Nos. 2 & 3 with an ulterior motive and sole purpose of
denying the grant of 1st Renewal of Permission to the petitioner
College.
6. Section 10A of the of the Indian Medical Council Act, 1956
adverted to on behalf of the petitioner, reads to the effect:-
"l0A. Permission for establishment of new medical
college, new course of study. --
(l) Notwithstanding anything contained in this Act or any
other Law for the time being in force, --
(a) no person shall establish a medical college; or
(b) no medical college shall--
{i} open a new or higher course of study or training
(including a post-graduate course of study or training)
which would enable a student of such course or training to
qualify himself for the award of
any recognised medical qualification; or
(ii} increase its admission capacity in any course of study
or training (including a post-graduate course of study or
training), except with the previous permission of the
Central Government obtained in accordance with the
provisions of this section.
Explanation 1.--For the purposes of this section, "person"
includes any University or a trust but does not include the
Central Government.
Explanation 2.--For the purposes of this section,
"admission capacity", in relation to any course of study or
training (including post-graduate course of study or
training) in a medical college, means the maximum
number of students that may be fixed by the Council from
time to time for being admitted to such course or training.
(2) (a) Every person or medical college shall, for the
purpose of obtaining permission under sub-section (1),
submit to the Central Government a scheme in accordance
with the provisions of clause (b) and the Central
Government shall refer the scheme to the Council for its
recommendations.
(b) The scheme referred to in clause (a) shall be in such
form and contain such particulars and be preferred in such
manner and be accompanied with such fee as may be
prescribed.
(4) The Central Government may, after considering the
scheme and the recommendations of the Council under
sub-section (3) and after obtaining, where necessary, such
other particulars as may be considered necessary by it
from the person or college concerned, and having regard
to the factors referred to in sub section (7), either approve
(with such conditions, if any, as it may consider necessary)
or disapprove the scheme and any such approval shall be
a permission under sub-section (1): Provided that no
scheme shall be disapproved by the Central Government
except after giving the person or college concerned a
reasonable opportunity of being heard: Provided further
that nothing in this sub-section shall prevent any person or
medical college whose scheme has not been approved by
the Central Government to submit a fresh scheme and the
provisions of this section shall apply to such scheme, as if
such scheme has been submitted for the first time under
sub-section (2)."
7. The petitioner also places reliance on the provisions of the
Indian Medical Council (Amendment) Ordinance 2018, which read to
the effect:-
"2. In section 3A of the Indian Medical Council Act, 1956
(102 a 1956),-
(a) in sub-section (l), for the words, brackets and figures
"Indian Medical Council (Amendment) Act, 2010", the
words, brackets and figures "Indian Medical Council
(Amendment) Ordinance, 2018" shall be substituted;
(b) in sub-section (2), for the words "three years", the
words "one year" shall he substituted;
(c) in sub-section (4), for the words "and medical
education", the words "and medical education or proven
administrative capacity and experience" shall be
substituted;
(d) after sub-section (7), the following sub-section shall be
inserted, name
"(7A) The Board of Governors shall be assisted by a
Secretary General who shall be appointed by the Central
Government on deputation or contract basis and he shall
be the head of the secretariat in the Council."
8. The petitioner also relied upon the Gazette Notification dated
26.09.2018 passed by the respondent no.1, which reads to the effect:-
"S.O. 4986(E).--Whereas the President promulgated
the Indian Medical Council (Amendment) Ordinance,
2018 (Ordinance 8 of 2018) on 26th September, 2018,
which came into force on the said date;
And whereas, on and from the date of commencement
of Indian Medical Council (Amendment) Ordinance,
2018 (Ordinance 8 of 2018), the Medical Council of
India shall stand superseded and the President, Vice
President and other Members of the Council shall
vacate their offices and shall have no claim for any
compensation, whatsoever;
And whereas upon the supersession of the Council and
until a new Council is reconstituted, a Board of
Governors is required to be constituted by the Central
Government to exercise the powers and perform the
functions of the Council under the said Act; Now,
therefore, in exercise of the powers conferred by sub-
section (4) of section 3A of the Indian Medical Council
(Amendment) Ordinance, 2018, the Central
Government hereby constitutes the Board of Governors
consisting of the following persons as its Chairperson
and Members..."
9. The petitioner submits that the K.S.D Charitable Trust at
Meerut, Uttar Pradesh was registered under the Indian Trust Act, 1882
in the year 1882 and that the petitioner Trust is a reputed charitable
trust, running various educational institutions for philanthropic
purposes and it has established the Petitioner No. 1 i.e. a medical
college by the name of Mulayam Singh Yadav Medical College and
Hospital and that on 31.05.2018, the respondent no.1 on being
satisfied with the inspection report of the petitioner College conducted
by the respondent No. 3, and finding the petitioner eligible in terms of
the Indian Medical Council Act, 1956, had granted the Letter of
Permission to the petitioner No. 1, to establish a new Medical College
in the name and style of "Mulayam Singh Yadav Medical College &
Hospital" with an annual intake of 150 fresh students in the MBBS
Course for the academic year 2018-19 under Section l0A of the IMC
Act, 1956.
10. The petitioner submits that on 12.07.2018, on receipt of
communication vide an email dated 14.06.2018 from the respondent
no.3 i.e. the MCI, that the petitioner College must submit the standard
inspection forms A & B along with other documents in the prescribed
format to the respondent No. 3 on or before 15.07.2018 for grant of
the 1st Renewal of Permission for admitting the second batch of 150
students in MBBS course for the academic year 2019-20 at the
petitioner College, the petitioner on 12.07.2018 applied to the
respondent no.3 for the grant of such 1st renewal along with the
Standard Inspection Form A & B and other required documents to the
respondent no.3 and on 13.07.2018, the Chaudhary Charan Singh
University, Meerut on being satisfied with the local enquiry issued the
Consent of Affiliation to the petitioner Medical College from the
academic session 2019-20. The petitioner further submits that in view
of the promulgation of the Indian Medical Council (Amendment)
Ordinance, 2018 on 26.09.2018, the Board of Governors constituted
by the Respondent No. 1, in exercise of powers conferred by Section
3A (4) of the Indian Medical Council Act, 1956, started functioning in
place of the Medical Council of India i.e. the respondent no.3 which
had been superceded by the Board of Governors i.e. the respondent
no.2.
11. The respondent no.2 is thus, stated to have conducted the
assessment of the petitioner College on 11.12.2018 & 12.12.2018 for
the grant of 1st Renewal of Permission for admitting the second batch
of 150 students in the MBBS course for the academic year 2019-20
and that the assessment team pointed out some deficiencies, which
read to the effect:-
• "Deficiency of Teaching Faculty: 17.02% (16 out of 94)" and
• "Deficiency of Resident Doctor: 25.53% (12 out of 47)".",
which the petitioner submits, were non-existent with it having been
submitted by the petitioner that these deficiencies were found by the
respondent no.2 because it did not take into account 6 Junior
Residents/ Senior Residents, who were present in the Petitioner
College on the day of assessment i.e. on 11.12.2018 & 12.12.2018, the
term of one year of the Board of Governors was increased to three
years vide the Indian Medical Council (Amendment) Ordinance, 2019
promulgated on 12.01.2019 and on 31.01.2019, the respondent no.2
informed the petitioner College of the deficiencies pointed out by the
assessment team of the respondent no.2 which had conducted the
inspection of the petitioner College on 11.12.2018 & 12.12.2018,
which deficiencies have already been adverted to elsewhere
hereinabove.
12. The petitioner submits that it replied to all the deficiencies
pointed out by the assessment team of the respondent no.2 in the
report dated 11.12.2018 & 12.12.2018 and submitted a demand draft
of Rs.3,54,000/- in favour of the Secretary, Medical Council of India.
The petitioner submits that on 16.04.2019 i.e. a Saturday, the
assessment team of the respondent no.2 conducted a compliance
verification of the petitioner College during Navratri Pooja, which is
widely celebrated in the northern part of the country and that this
inspection was so done during the Navratri Pooja days with an ulterior
motive of disapproving the grant of letter of permission/ renewal of
permission to the petitioner College. The petitioner submits that the
minimum deficiency, which was found in the petitioner College at the
time of the compliance inspection was solely because of the reason
that the compliance inspection of the petitioner College was
conducted by the assessment team of the respondent no.2 on the first
day of Navratri Festival during the Navratri Pooja, which is widely
celebrated in the Northern part of the country and that it fell on a
Saturday.
13. The petitioner has submitted that on the first day of the Navratri
festival large number of people observe fasting and that the petitioner
College showed all compliances to the satisfaction of the assessment
team of the respondent no.2. The petitioner submits that the entire
exercise of the assessment team has been videographed by the
petitioner and can be produced. The petitioner submits that vide letter
dated 01.05.2019 on the basis of the assessment report dated
11.12.2018 & 12.12.2018 and the compliance assessment report dated
06.04.2019, the respondent No. 2 recommended disapproval of the
application of the Petitioner College for grant of 1st Renewal of
Permission for admitting the second batch of 150 students in MBBS
course for the academic year 2019-20.
14. The respondent no.2 i.e. the Board of Governors in supersession
of the Medical Council of India is indicated to have further informed
the petitioner on the basis of the compliance report of the deficiencies
as detailed hereinbelow:-
"1. Faculty Deficiency 7.4% (>5%)
2. Resident Deficiency 8.5% (>5%)
3. No major or minor OT procedure on day of assessment (same as
main assessment)
4. 64 X-rays on day of assessment."
15. The said letter indicated that a hearing opportunity was granted
to the petitioner on 07.05.2019 at 9.30 AM, wherein the petitioner was
called upon to furnish an explanation in regard to the deficiencies
observed by the assessment team of the respondent No. 2 in the
compliance assessment report dated 06.04.2019 and as mentioned in
the letter dated 01.05.2019 are non-existent in nature and had been
purposely pointed out by the respondent no.2 to disapprove the
application of the petitioner for grant of the 1st Renewal of Permission
for admitting the second batch of 150 students in the MBBS course for
the academic year 2019-20.
16. The petitioner has submitted a point wise clarification in
relation to each deficiency existent in the petitioner college on
01.05.2019, to the effect :-
S. Deficiency pointed out by the Submission by the Petitioner College
No. Respondent No. 2 in the letter
Dated 01.05.2019
1. Faculty Deficiency ●The Petitioner College has submitted documentary
7.4% (>5%) evidence including declaration form, Form 16, Salary
Statement with bank statements and University Letter
for UG Teacher approval to the Respondent No. 2 in
regard to 4 faculty members which were not counted
by the assessment team of the Respondent No. 2. If the
aforesaid 4 faculty members are taken into
consideration by the Respondent No. 2 than the
deficiency in regard to the faculty comes down to
3.4%.
● This year the Respondent No. 2 has granted Renewal
of Permission to N.C. Medical College & Hospital,
Panipat, for the academic year 2019-20, where
deficiency in regard to faculty was observed at 5.1%,
which is similar to the Petitioner.
●The compliance assessment of the Petitioner College
was done 06.04.2019, during Navratri Holidays.
●Hon'ble Supreme Court has granted Renewal of
Permission to other Colleges for the academic year
2017-18, which had much higher deficiency in Faculty
than the Petitioner College which is reproduced in a
tabular chart below: -
Name of College Deficiency in faculty
Apollo Institute of 12.03%
Medical Sciences
& research
Shridev Suman Subharti 20%
Medical College,
Dehradun
Shankracharya Institute 10.6%
of Medical College,
Bhillai.
● As per the erstwhile Oversight Committee which
was mandated by Hon'ble Supreme Court, deficiency
of 20% in faculty is permissible and worthy to be
ignored.
2. Resident Deficiency 8.5% ● The Petitioner College has submitted documentary
(>5%) evidence including declaration form. Form 16, Salary
Statement with bank statements and University Letter
for UG Teacher approval to the Respondent No. 2 in
regard to 3 Residents which were not counted by the
assessment team of the Respondent No. 2. If the
aforesaid 3 Residents are taken into consideration by
the Respondent No. 2 than the deficiency in regard to
the faculty comes down to 2.5%
●This year the Respondent No. 2 has granted Renewal
of Permission to N.C. Medical College & Hospital,
Panipat, for the academic year 2019-20, where
deficiency in regard to resident was observed at
7.58%, which is similar to the Petitioner.
●The compliance assessment of the Petitioner College
was done 06.04.2019, during Navratri Holidays.
● Hon'ble Supreme Court has granted Renewal of
Permission to other Colleges for the academic year
2017-18, which had much higher deficiency in
Resident than the Petitioner College which is
reproduced in a tabular chart below: -
Name of College Deficiency in faculty
Apollo Institute of 8.69%
Medical Sciences
& research
Shridev Suman Subharti 21.70%
Medical College,
Dehradun
● As per the erstwhile Oversight Committee which
was mandated by Hon'ble Supreme Court, deficiency
of 20% in Residents is permissible and worthy to be
ignored.
3. No major or minor OT ● 4 major OT and 19 minor OT were done in the
procedure on day of petitioner college on the day of assessment as per the
assessment (same as main OT Register and patients file.
assessment)
● There is severe contradiction between the
compliance assessment report dated 06.04.2019 of the
Petitioner College and the letter dated 01.05.2019, as
at Page 3 of the compliance assessment report the
assessment team of the Respondent No. 2 has observed
that "Hysterectomy- 1 major surgery done on the day
of assessment on 06.04.2019", at Page 6 of the
compliance assessment report the assessment team of
the Respondent No. 2 has observed that 1 major
surgery has been done on the day of assessment. But in
the letter dated 01.05.2019 of the Respondent No. 2
where the compliance assessment report of the
Petitioner College has been concluded, observation has
been made that "No major or minor OT procedure on
day of assessment
● At Page 6 of the compliance assessment report of the
Petitioner College, the assessment team of the
Respondent No. 2 has observed that No. of admissions
in the Petitioner College on the day of assessment is 49
and the No. of discharges in the petitioner college on
the day of assessment is 25. It is submitted that
dressing forms part of minor operations and it is not
tenable that none of the 25 discharged patient received
dressing before being charged from the Petitioner
College.
4. 64 X-rays on day of ● The deficiency in regard to "X-rays on the day of
assessment." assessment" is not part of the MSR (Minimum
Standard Regulations).
● During the day of compliance assessment i.e. on
06.04.2019, total 69 X-rays were done on the day of
assessment as per the X-ray register of the Petitioner
College. 5 X-rays were taken into consideration by the
assessment team of the Respondent No. 2 in the
compliance assessment report dated 06.04.2019, to the
reasons best known to the Respondent No. 2.
● As per page 14 of the assessment report dated
11.12.2018 &12.12.2018 of the Petitioner College, 60
X-rays were done in the Petitioner College on the day
of assessment. The Respondent No. 2 did not
considered 60 X-rays in the assessment report dated
11.12.2018 & 12.12.2018 as a deficiency, but consider
64 X-rays in the compliance assessment report dated
06.04.2019 as a deficiency, to the reasons best known
to the Respondent No. 2.
17. The petitioner submits that it also submitted a point wise
detailed clarification and reply on all the deficiencies pointed out by
the assessment team of the Respondent No. 2 in the assessment report
dated 11.12.2018 & 12.12.2018 and compliance assessment report
dated 06.04.2019 to the respondent No. 2 vide letter dated 06.05.2019.
The petitioner further submits that the respondent no.2 has arbitrarily
and mechanically rejected the application of the petitioner for the 1st
Renewal of admitting the second batch of 150 students in the MBBS
Course for the academic session 2019-20 and upheld the rejection of
the petitioner's Institute vide order dated 18.05.2019 issued by the
respondent no.2.
18. The petitioner submits that it wrote two separate letters dated
24.05.2019 to the Secretary General of the Respondent No. 3,
whereby the petitioner informed the Secretary General of the
respondent No. 3 that the compliance inspection of the petitioner
College was conducted on 06.04.2019 i.e. on the first day of the
Navratri Pooja Festival, due to which 4-5 faculty/residents were late in
reporting to the Petitioner College on 06.04.2019, whose presence was
not counted by the assessment team of the respondent No. 2. The
petitioners submit that vide letter dated 24.05.2019, the petitioner
College also informed the Secretary General of the respondent No. 3
that it is a fully compliant institution with all the required
faculty/residents and infrastructure in terms of the MSR (Minimum
Standard Regulations) prescribed by the respondent Nos. 2 & 3, and
requested the Secretary General of the respondent No. 3 to conduct the
second compliance inspection of the Petitioner College to ensure that
all the deficiencies which were found by the assessment team of the
Respondent No. 2 in the compliance assessment report dated
06.04.2019 had already been rectified by the Petitioner College.
19. Inter alia the petitioners submit that the respondent no.2 has
granted Letter of Permission/Renewal of Permission for the academic
year 2019-20 to other colleges where similar deficiencies as the
petitioner college were found in the assessment and compliance
assessment report e.g. N.C. Medical College & Hospital, Panipat, in
which there were deficiencies similar to the petitioner college that had
been found i.e. 5.1% deficiency in faculty and 7.58% deficiency in
resident. The petitioner submits that whilst not admitting the existence
of deficiencies as pointed out by the assessment team of the
respondent no.2 in the Compliance Assessment Report dated
06.04.2019, even if those medical colleges having deficiencies similar
to the petitioner college had been granted renewal of permission by
the respondent no.2, the Court may grant renewal of permission to the
petitioner college where the deficiencies are miniscule. The petitioner
has placed reliance on the verdict of this Court in Saraswati
Education Charitable Trust Vs. Union of India in WP (C)
6842/2018, a judgment dated 29.08.2018 to contend that there had
been no application of mind by the respondent no.2 and that there was
a non-consideration of the relevant material by the respondent which
was available on the record.
20. The petitioner has placed reliance on the verdict of the Hon'ble
Supreme Court in Saraswati Education Charitable Trust Vs. Union
of India (2017) 16 SCC 637 whereby the Hon'ble Supreme Court
granted renewal of permission to a similarly situated medical college
and held to the effect:-
"16. We have no hesitation in taking the view that the
Hearing Committee as well as the Central Government
have failed to consider all the relevant aspects of the
matter and the conclusion reached by the said authorities
is, on the face of it, without application of mind, if not
perverse."
21. The petitioner submits that the petitioner college fulfils all the
eligibility and qualifying criteria prescribed under the Establishment
of Medical College Regulations, 1999 and Indian Medical Act, 1956
and that the deficiencies pointed out by the respondent no.2 in its letter
dated 01.05.2019 pertaining to number of X-rays was not a part of the
MSR prescribed under the Indian Medical Council Act, 1956. The
petitioner has further submitted that the respondent no.2 had
disapproved the application of the petitioner for grant of 1 st renewal
of permission on the basis of illegal compliance assessment dated
06.04.2019, which was done on the first day of the Navratri Pooja
festival, which is widely celebrated in the northern part of the country
and that too being a Saturday.
22. The petitioner has placed reliance on the verdict of the Hon'ble
Supreme Court in Jagat Narain Subharti Charitable Trust v. Union
of India, (2017) 16 SCC 666 to contend that deficiency in regard to
the faculty and residents cannot be held against the college if the
assessment or compliance assessment of the college was done close to
festive vacation. Para 12 of the said judgment was relied upon on
behalf of the petitioner, which reads to the effect:-
"12.....Notably, in Para 17 of the impugned
communication, the competent authority of the Central
Government has recorded the observation of the Hearing
Committee that inspection carried out on 26-10-2016/27-
10-2016 was just prior to Diwali and was bound to reflect
on the attendance of the faculty, residents and OPD as
well as bed occupancy. The competent authority has
stopped at that It has not rejected the said explanation as
incorrect or bogus. On the other hand, the impression
gathered from the contents of Para 17 of the impugned
communication is that the Hearing Committee as well as
the competent authority of the Central Government has not
rejected the explanation offered by the petitioners' College.
If that is so, deficiency in respect of faculty, residents,
OPD and bed occupancy cannot he held against the
petitioners more so when the OC, on the basis of the same
material, had opined that the deficiency regarding faculty
at the relevant time was only 6.15%, which was within the
norms. Even the deficiency of residents was answered in
favour of the petitioners by observing that there was no
deficiency."
23. Reliance was placed on behalf of the petitioner on the verdict of
the Hon'ble Supreme Court in Shri Gangajali Education Society Vs.
Union of India (2017) 16 SCC 656 with specific reference to
observations in para 13, which reads to the effect:-
"13. Be that as it may, reverting to the factors which have
been highlighted in the impugned decision, particularly in
Para 17 which is the edifice of the impugned order, the
first is about the deficiency of seven faculty and seven
residents pointed out by MCL With reference to the said
deficiency, OC has noted that the deficiency up to 20% is
permissible. The competent authority has not chosen to
dislodge that observation of OC. Further, OC has noticed
that the explanation offered by the petitioner College with
regard to deficiency of 7 faculty and 7 residents was
acceptable and plausible. However, the competent
authority has not analysed the said explanation in the
impugned decision or recorded a clear finding that it was
disagreeing with the view of OC in that behalf for reasons
which can be perceived as tangible and just. The
competent authority has then adverted to another facet of
the deficiency concerning Form 16 and salary details, but
has not chosen to advert to the explanation given by the
petitioner College in that behalf which had found favour
with the OC."
24. Inter alia the petitioner has submitted that in terms of Section
10A (7) of the Indian Medical Council Act, 1956 whilst passing an
order under section 10A (4) of the Act, the respondent no.2, Board of
Governors in supersession of the MCI is under a statutory obligation
of Section 10A (7) of the IMC Act, 1956 to give reasons for passing
orders under Section 10A(4) of the IMC Act, 1956. The petitioner
submits that it had complied with all the statutory requirements and
was entitled for grant of renewal of permission for admitting the
second batch of 150 students in the MBBS course for the academic
year 2019-20 and that the actions of the respondent no.2 are arbitrary
and violative of the fundamental rights of the petitioners guaranteed
under Articles 14, 19(1)(g) and 21 of the Constitution of India.
25. The respondent no.2, the Board of Governors in supersession of
the MCI vide its reply affidavit dated 20.07.2019 has submitted that at
the threshold itself, it is clear that the petitioner medical college had
failed to fulfil the minimum infrastructure, teaching faculty, resident,
clinical material and other physical facilities. The respondent no.2 has
submitted that the deficiencies pointed out in the inspection reports
dated 11/12.12.2018 and 06.04.2019 were so grave in nature that the
same could not be brushed aside in the larger public interest and also
in the interest of resident community and students community and that
the respondent could not compelled for the grant of renewal of
permission for admission of the second batch of 150 MBBS students
for the academic year 2019-20. The respondent no.2 thus submits that
the requisite requirements of Section 3B(b)(ii) r/w Section 3B(b)(iii)
of the IMC Act, 1956 had rightly been complied with by it by grant of
hearing on 07.05.2019 and that the petitioner medical college had
submitted the response dated 06.05.2019, which was duly considered
by the Hearing Committee constituted by the respondent no.2 whilst
granting the hearing on 07.05.2019 but that the Hearing Committee
had thereafter concluded that the explanation offered by the petitioner
medical college regarding shortage of faculty, residents & clinical
material were not satisfactory and that the clinical material was
inadequate and thus it had recommended not to grant renewal of
permission for the admission of the second batch of 150 MBBS
students for the academic year 2019-20.
26. The respondent no.2 has submitted that the inspection report
dated 11/12.12.2018 revealed that there were gross deficiencies of
infrastructure, teaching faculty, residents clinical material and other
physical facilities in the petitioner medical college and that both the
inspections dated 11/12.12.2018 and 06.04.2019 had been carried out
by independent assessors who were Professors in Govt. Medical
Colleges and from outside the State in which the petitioner medical
college is situated. The respondent no.2 further submits that the
inspection of the petitioner medical college had taken place in the
presence of its management including the Dean/Principal who had
counter signed on each page of the inspection reports dated
11/12.12.2018 and 06.04.2019 and thus, all the deficiencies of
minimum infrastructure, teaching faculty, residents, bed occupancy,
clinical material and other physical facilities pointed out by the MCI
Assessors during their inspections as recorded in the inspection reports
dated 11/12.12.2018 and 06.04.2019 had been duly accepted by the
petitioner medical college and thus, the deficiencies pointed out
including that of infrastructure, faculty/residents, clinical material, bed
occupancy and other physical facilities, cannot be disputed by the
petitioner medical college at this stage.
27. The respondent no.2 further submits that the deficiencies of
minimum infrastructure, teaching faculty, residents, bed occupancy
and other physical facilities as pointed out in the inspection reports
dated 11th & 12th December, 2018 and 06.04.2019 were gross in
nature which also had been duly admitted by the petitioner medical
college and the same cannot be rectified or removed within a short
span of one or two months. The respondent no.2 further submits that
the petitioner medical college was obliged to be ready with the
complete infrastructure, teaching faculty, residents, clinical material
and other physical facilities in their medical college at the time of
submitting their Standard Assessment Form and Declaration Forms
for the grant of letter of permission for the academic year 2019-20 and
that the above facts clearly establish that the petitioner medical college
was not ready for the grant of renewal of permission for admitting 2nd
batch of 150 MBBS students for the academic year 2019-20.
28. The respondent no.2 has submitted that the petitioner medical
college even after being afforded numerous opportunities to rectify the
deficiencies, the same have been continuously persisting and the
petitioner had failed to rectify the deficiencies pertaining to
infrastructure, clinical material, teaching faculty, residents, bed
occupancy and other physical facilities. The respondent no.2 further
submits that in terms of the verdict of the Hon'ble Supreme Court in
Ashish Ranjan & Ors. Vs. Union of India & Ors. (2016) 11 SCC
225, the last date i.e. 31.05.2019 for issuing grant of letter of
permission by the Medical Council of India for the academic year
2019-20 has already passed by and that it is impermissible for the
respondent no.2 to consider the case of the petitioner medical college
for the academic year of 2019-20 and that the respondent no.2 can
neither now reconsider nor carry out any fresh inspection of the
petitioner medical college and the petition ought to be rejected. The
respondent no.2 has submitted that in terms of the verdict of the
Hon'ble Supreme Court in Ashish Ranjan (supra) a period of 3 to 4
months has been provided to the answering respondent to conduct
initial as well as the compliance assessments so as to maintain the
surprise element to assess whether the medical colleges have requisite
infrastructure, teaching faculty, residents, clinical material and other
physical facilities available and have not been borrowed or put in
place temporarily as held by the Hon'ble Supreme Court in Royal
Medical Trust Vs. UOI & Anr. (2015) 10 SCC 19.
29. The respondent no.2 has submitted that the Hon'ble Supreme
Court in its various pronouncements has upheld the strict adherence of
the time schedule for processing the application, grant of permission
and for admissions and has held that any defaulting party will be
proceeded under the Contempt of Courts Act, 1971. The respondent
no.2 has submitted that it is constituted under the provisions of the
Indian Medical Council Act, 1956 and has been given the
responsibility of discharging the duty of maintenance of the highest
standards of medical education throughout the country and reliance
was placed on behalf of the respondent no.2 on the verdict of the
Hon'ble Supreme Court in "State of Kerala Vs. T.P. Roshna" (1979)
SCC 580 wherein it was observed to the effect:-
"......The Indian Medical Council Act, 1956 has
constituted the Medical Council of India as an expert body
to control the minimum standards of medical education
and to regulate their observance. Obviously, this high-
powered Council has power to prescribe the minimum
standards of medical education. It has implicit power to
supervise the qualifications or eligibility standards for
admission into medical institutions. Thus, there is an
overall invigilation by the Medical Council to prevent sub-
standard entrance qualifications for medical courses "
30. The respondent no.2 has also placed reliance on the
observations of the Hon'ble Supreme Court in "MCI Vs. State of
Karnataka" (1998) 6 SCC 131, wherein it was observed to the effect:
" ....A medical student requires grueling study and that can
be done only if proper facilities are available in a medical
college and the hospital attached to it has to be well
equipped and the teaching faculty and doctors have to be
competent enough that when a medical student comes out,
he is perfect, in the science of treatment of human beings
and is not found wanting in any way. The country does not
want half-baked medical professionals coming out of
medical colleges when they did not have full facilities of
teaching and were not exposed to the patients and their
ailments during the course of their study "
31. The respondent no.2 further submits that by virtue of provisions
of Section 33 of the IMC Act, the MCI has been empowered with the
prior approval of the Central Government to frame regulations for
laying down minimum standards of infrastructure, teaching and other
requirements for conduct of medicine courses. Inter alia the
respondent no.2 has submitted that the regulations of the MCI are
binding and mandatory and that all State enactments, rules and
regulations framed by universities etc. in relation to the conduct of
medicine courses to the extent they are inconsistent with the Act and
the regulations made thereunder by the MCI are repugnant to Article
254 of the Constitution of India inasmuch as the Act is relatable to
Entry 66 List 1 Schedule VII of the Constitution of India. The
respondent no.2 further relied on the observations made by the
Hon'ble Supreme Court in MCI Vs. State of Karnataka (Supra) to the
effect:-
".....27.......... It is the Medical Council which is
primarily responsible for fixing standards of medical
education and overseeing that these standards are
maintained. It is the Medical Council which is the
principal body to lay down conditions for recognition of
medical colleges which would include the fixing of intake
for admission to a medical college. We have already seen
in the beginning of this judgment various provisions of the
Medical Council Act. It is, therefore, the Medical Council
which in effect grants recognition and also withdraws the
same. Regulations under Section 33 of the Medical
Council Act, which were made in 1977, prescribe the
accommodation in the college and its associated teaching
hospitals and teaching and technical staff and equipment
in various departments in the college and in the hospitals.
These regulations are in considerable detail...........
28 ..................Standards have been laid by the Medical
Council, an expert body, for the purpose of imparting
proper medical education and for maintaining uniform
standards of medical education throughout the country.
Seats in medical colleges cannot be increased
indiscriminately without regard to proper infrastructure
as per the regulations the Medical Council.
29. A medical student requires gruelling study and that
can be done only if proper facilities are available in a
medical college and the hospital attached to it has to be
well equipped and the teaching faculty and doctors have
to be competent enough that when a medical student
comes out, he is perfect in the science of treatment of
human beings and is not found wanting in any way. The
country does not want half-baked medical professionals
coming out of medical colleges when they did not have
full facilities of teaching and were not exposed to the
patients and their ailments during the course of their
study. .................After the insertion of Sections 10-A,
10-B and 10-C in the Medical Council Act, the Medical
Council has framed regulations with the previous
approval of the Central Government which were
published in the Gazette of India dated 29-9-1993 (though
the notification is dated 20-9-1993)..........
30............. Nivedita Jain case does not say that all the
regulations framed by the Medical Council with the
previous approval of the Central Government are
directory or mere recommendatory. It is not that only
future admissions will have to be regulated on the basis of
the capacity fixed or determined by the Medical Council.
The plea of the State Government that power to regulate
admission to medical colleges is the prerogative of the
State has to be rejected............."
32. The respondent no.2 has further placed reliance on the verdict
of the Hon'ble Supreme Court in Dr. Preeti Srivastava Vs. State of
M.P. (1999) 7 SCC 120, with specific reference to observations in
para 57, which read to the effect:-
"57........ In the case of Medical Council of India v. State
of Karnataka a Bench of three Judges of this Court has
distinguished the observations made in Nivedita Jain. It
has also disagreed with Ajay Kumar Singh v. State
of Bihar and has come to the conclusion that the
Medical Council regulations have a statutory force
and are mandatory. The Court was concerned with
admissions to the MBBS course and the regulations
framed by the Indian Medical Council relating to
admission to the MBBS course. The Court took
note of the observations in State of Kerala v. T.P.
Roshana (SCC at p.580) to the effect that under the
Indian Medical Council Act, 1956, the Medical
Council of India has been set up as an expert body
to control the minimum standards of medical
education and to regulate their observance. It has
implicit power to supervise the qualifications or
eligibility standards for admission into medical
institutions. There is, under the Act an overall
vigilance by the Medical Council to prevent sub-
standard entrance qualifications for medical
courses. These observations would apply equally to
postgraduate medical courses. We are in respectful
agreement with this reasoning.............."
33. The respondent no.2 also adverted to the verdicts of the Hon'ble
Supreme Court in:-
"(i) Dr. Narayan Sharma & Anr. Vs. Dr.
Pankaj Lehkar &Ors.- (2000) 1 SCC 44.
(ii) State of Punjab Vs. Deyanand Medical
College- (2001) 8 SCC 664.
(iii) State of MP & Ors Vs. Gopal D. Tirthani
& Ors- (2003) 7 SCC 83
(vi) Harish Verma & Ors Vs. Ajay Srivastava &
Anr.- (2003) 8 SCC 69"
to reiterate that the regulations of the respondent no.2 have a binding
and mandatory character.
34. The respondent no.2 has further submitted that the teaching
faculty in the medical colleges have to be full time in the employment
of the college and no part time or honorary teachers are acceptable
and are not counted towards the teaching faculty of the medical
college, in terms of the MCI's Regulations. The respondent no.2 has
further submitted that the intake in the medicine course is dependent
directly upon the physical facilities available, particularly in respect of
the teaching faculty, clinical material and other infrastructural
facilities available in the department, besides the existence of these
facilities in commensurate with the annual intake capacity of the
medical college for MBBS course. The respondent no.2 has further
submitted that in terms of the scheme of the Act and the regulations
made thereunder, each medical college when it makes an application
u/s 10A for permission for establishment of the medical college is
required to specify the proposed annual intake in the said course and
that thereafter, an inspection by the inspection team of MCI is caused
to verify the infrastructural, teaching faculty, clinical material and
other physical facilities available at the college concerned for
imparting the relevant MBBS course. The respondent no.2 submits
that based on the infrastructural, teaching faculty and other physical
facilities available at the college inspection report, the MCI makes the
recommendation to the Central Govt. qua the grant of requisite
permission to make admission with an annual intake in the said
course.
35. The respondent no.2 submits that when the 1st batch of the
MBBS course appears in its final year university examination, another
inspection for recognition of MBBS course is caused by the MCI and
based on the facilities available for imparting the course MCI
recommends recognition of the MBBS degree of the students of the
affiliating University with respect to the students of the medical
college. The respondent no.2 submits further that in case the medical
college fails to fulfill the desired infrastructure, teaching faculty and
other physical facilities in their medical college the MCI is
constrained to forward negative recommendation to the Central
Government for the disapproval of the scheme. The respondent no.2
has submitted that it is bound by the time schedule forming part of
statutory regulations which it uniformly applies to all applicants and
that the respondent no.2 cannot pick and choose in accepting the
application after the date fixed in the Regulations, to which, strict
adherence is necessary. The respondent no.2 whilst placing reliance
on the verdict of the Hon'ble Supreme Court in Mridul Dhar vs. UOI
& Ors. (2005) 2 SCC 65, contends that the strict adherence to each of
the stages of the time schedule is an absolute imperative.
36. Reliance was placed on behalf of the respondent no.2 on the
Medical Council of India Establishment of Medical College
Regulations, 1999 with specific reliance on Regulation 8(3)(1)
thereof, which reads to the effect:-
"(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 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 the 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."
37. Reliance was placed on behalf of the respondent no.2 on the
verdict of the Hon'ble Supreme Court in Manohar Lal Sharma vs.
Medical Council of India (2013) 10 SCC 60 wherein it has been held
vide para 27 of the said verdict, to the effect:-
"27. We are also of the view that such an order
is not vitiated by violation of principles of
natural justice, especially, when no allegation
of bias or mala fide has been attributed against
the two doctors who constituted the inspection
team, which conducted the surprise inspection
on 6-7-2013. When the inspection team consists
of two doctors of unquestionable integrity and
reputation, who are experts in the field, there is
no reason to discard the report of such
inspection. In such circumstances, we are of the
view that MCI has rightly passed the order
rejecting the, approval for renewal of
permission for the third batch of 150 MBBS
students granted for the academic year 2013-
2014...."
38. Reliance was placed on behalf of the respondent no.2 on the
observations of the Hon'ble Supreme Court in MCI vs. Kalinga
Institute of Medical Sciences (2016) 11 SCC 530 with specific
reference on observations, which read to the effect:-
"6. Our attention was also drawn to the
decision of this Court in Manohar Lai Sharma
v. Medical Council of India wherein it was held
that since the inspection is taken by "doctors of
unquestionable integrity and reputation, who
are experts in the field, there is no reason to
discard the report of such an inspection." In the
present appeal, there is no allegation made by
KIMS of any mala fides of the Inspection Team
or any perversity in the inspection report and
hence there is no question of challenging the
conclusions of a neutral, randomly selected
Inspection Team in its assessment..........
21. A perusal of the decision of the High
Court clearly indicates that it considered the
latest report of the Inspection Team as if it
was hearing an appeal against the report. In
doing so, the High Court went into great
details on issues relating to the number of
teaching beds in the hospital, the limitations
in the OPD Department, the number of units
available in the subjects of General Medicine,
Pediatrics etc., bed occupancy, number of
Caesarean sections, discrepancy in data of
major and minor operations, computerization
in the institution, number of patients in the
ICU, number of static X-ray machines,
deficiency of examination halls, lecture
theatres, library, students hostel, interns
hostel, playground etc. etc. Surely, this was
not within the domain of the High Court in
exercise of its jurisdiction under Article 226 of
the Constitution...........
22. The High Court did not appreciate that
the inspection was carried out by eminent
Professors from reputed medical institutions
who were experts in the field and the best
persons to give an unbiased report on the
facilities in KIMS. The High Court under
Article 226 of the Constitution was certainly
not tasked to minutely examine the contents
of the inspection report and weigh them
against the objections of KIMS in respect of
each of Its 18 Items. In our opinion, the
High Court plainly exceeded Its Jurisdiction
In this regard In venturing Into seriously
disputed factual issues........."
39. Inter alia the respondent no.2 has contended that the scope of
judicial review is extremely limited in matters relating to decisions
taken by expert bodies in academic matters and that the Hon'ble
Supreme Court has in a catena of verdicts laid down that strict
adherence to the prescribed time schedule, process of selection to be
based on rules of merit by the respondent no.2 is essential and that the
Hon'ble Supreme Court has requested all High Courts to ensure strict
adherence to the prescribed time schedule, with the process of
selection to be based on rules of merit.
40. Inter alia the respondent no.2 has submitted that the
administration report of the MCI Assessor dated 11/12.12.2018 was
considered by the respondent no.2 along with observations of the
Consultant (Undergraduate) which had brought forth the deficiencies
therein, already adverted to elsewhere hereinabove, which the
respondent no.2 submits are fundamental in nature and cannot be
brushed aside and pursuant to the show cause notice issued thereupon
to the petitioner college, a compliance report dated 28.02.2019 was
sent by the petitioner. Thereafter, the compliance verification
assessment of the infrastructure, teaching faculty, residents, clinical
material and other physical facilities conducted on 06.04.2019 which
brought forth the faculty deficiency of 7.4%, which is more than 5%
and resident deficiency of 8.5%, which is more than 5%, no major or
minor OT procedure on day of assessment and 64 X-rays on day of
assessment, which deficiencies, it has been reiterated on behalf of the
respondent no.2 are fundamental in nature and cannot be brushed
aside. The respondent no.2 has submitted that though the deficiency of
no major or minor OT procedure on day of assessment was apparently
an inadvertent error in as much as one operation had taken place, the
Hearing Committee constituted by the respondent no.2 during the
hearing on 07.05.2019 had correctly taken into account the
discrepancy and deficiencies brought forth through the report dated
11/12.12.2018 as well as on 06.04.2019 and had made its
recommendations on the basis of the deficiency of the faculty,
residents and inadequate clinical material. The respondent no.2 has
further submitted that the Hearing Committee of the respondent no.2
on 07.05.2019 vide its minutes dated 07.05.2019 had observed to the
effect:-
" HEARING COMMITTEE MINUTES DATED 07.05.2019
S. State Name of Type of Seats Type Deficie Submissions Decision of
NO the college assess ncies made by the the Hearing
ment of the College Committee
college authorities
pointed
out by
the
MCI
Uttar Mulayam 2nd 150 Pvt. Compli The college The Hearing
17 Pradesh Singh ance authorities Committee
Yadav Verific submitted a noted that the
Medical ation representati clinical
College & Assess on material was
Hospital, ment explaining consistently
Meerut, dated the inadequate
U.P. 6th inadequate over the last
April, clinical two
2019. material and assessments.
1.Facu the Faculty The Hearing
lty and Committee
deficie Residents also found
ncy of deficiencies the
7.4% explanation
(>5%) offered by the
2.Resid college
ent authorities
Deficie unsatisfactory
ncy .
8.5% In view of the
(>5%) deficiencies of
3.No Faculty and
major Residents and
or in view of
minor inadequate
OT clinical
proced material the
ure on Hearing
day of Committee
assess recommended
ment not to grant
(same renewal of
as permission for
main admission of
assess 2nd batch of
ment) 150 MBBS
4.64 X- seats for the
rays on academic year
day of 2019-20 at
assess Mulayam
ment. Singh Yadav
Medical
College &
Hospital,
Meerut, UP.
and that the clinical material was consistently inadequate over the last
two assessments and thus the Hearing Committee found the
explanation offered by the college authority unsatisfactory and as a
consequence thereof, the respondent no.2 had accepted the
recommendations of the Hearing Committee and decided not to grant
permission for admission of the 2nd batch of the petitioner institute for
the academic year 2019-20 though the petitioner could apply afresh
for the next academic session with strict adherence to the provisions
of the IMC Act and regulations framed thereunder.
41. The respondent no.2 further submits that the Hon'ble Supreme
Court has upheld the disapproval of applications even when the
deficiencies have been marginal in MCI Vs. NC Medical College
(2018) SCC Online SC 1468 wherein the deficiency of faculty 9% &
residents 10.2%, and that thus, the contention of the petitioner that the
deficiencies of the petitioner College were minimal and thus, the
approval be granted for the intake of 150 students for the academic
year 2019-20, cannot be accepted.
42. It has further been submitted on behalf of the respondent no.2
that the contention of the petitioner that on 06.04.2019 i.e. the first day
of Navratri Puja, the faculty as well as residents were not available on
the day of inspection, cannot be accepted, in as much as the same
would render the entire purpose of inspecting a medical college in
respect of its claims of possessing adequate infrastructure, faculty,
residents, clinical material as well as other physical facilities as otiose
and that if the representations/compliances were to be accepted, then
there would be no need of any physical verification since such details
of infrastructure, faculty, residents, clinical material as well as other
physical facilities were already submitted by the medical colleges
prior to the inspections.
43. It has also been submitted on behalf of the respondent no.2 that
the faculty and residents were to be considered as available on the date
of inspection at 11.00 AM on the first day of assessment & Senior
Residents/ Junior Residents on night duty in the hospital were
considered upto 12 noon as per the Assessors Guide. Inter alia the
respondent no.2 has submitted that there is no requirement of a
minimum number of major or minor operations as prescribed under
the Minimum Standards Requirement for the Medical College for 150
Admission Annually Regulations, 1999 whereby the minimum
infrastructure, faculty, residents, clinical material as well as other
physical facilities have to be maintained by the medical colleges for
grant of renewal to admit fresh batches of MBBS students and that
under the phase wise requirement of infrastructure, faculty, residents,
clinical material as well as other physical facilities to be fulfilled by
medical colleges under the Minimum Standards Requirement for the
Medical College for 150 Admission Annually Regulations, 1999
wherein it has been prescribed that a medical college at the stage of
admitting the 2nd batch of MBBS students must possess 4 major
operation theatres and 2 minor operation theatres and that thus, when a
medical college is mandated to possess 4+2 operation theatres, it was
only logical that the same number of operations must be conducted on
any given day as having vacant operation theatres would not provide
adequate clinical material for the training of MBBS students.
44. As regards the contention raised on behalf of the petitioner that
there is no minimum number of X-Rays as prescribed under the
Minimum Standards Requirement for the Medical College for 150
Admission Annually Regulations, 1999 and that under the phase wise
requirement of infrastructure, faculty, residents, clinical material as
well as other physical facilities to be fulfilled by medical colleges
under the Minimum Standards Requirement for the Medical College
for 150 Admission Annually Regulations, 1999 wherein, it has been
prescribed that a medical college at the stage of admitting 2nd batch of
MBBS students must possess X-Ray Machines of the following
discretion:-
"300mA-1, 600mA-1, 60mA-1 & 100mA-1",
and that thus, when a medical college was mandated to possess 4 X-
Ray Machines of the aforesaid discretion, which were available in the
Out Patient Department as well as the In Patient Department, then
43+21=64 X-Rays were clearly inadequate which also showed that
there was less footfall of patients which would not provide adequate
clinical material for the training of MBBS students.
45. As regards the contention raised on behalf of the petitioner
placing reliance on the notification published on 27.06.2019 issued by
the MCI bearing no. MCI-34(41)/2019- Med./126165, whereby in
Clause 8, under the heading of "Grant of Permission", sub- Clause 5
has been added into the Establishment of Medical College Regulations
(Amendment), 2019, which notification relates to the aspect of
reduced permission being granted for establishment of a new medical
college or renewal of permission of an existing medical college to the
lower prescribed intake capacity in the event of the applicant College
falling short of the requirement prescribed in the Minimum Standard
Requirement Regulations for the intake capacity for which the
medical college had applied, it has been submitted on behalf of the
respondent no.2 that the same can relate only and applies only from
the academic session 2020-21 onwards and cannot be retrospectively
applicable, as there is nothing in the notification to so indicate and
even otherwise, the last date for grant of permission as per the
judgment of the Hon'ble Apex Court in "Ashish Ranjan" (supra)
being 31.05.2019, the petitioner cannot avail of any benefit of the said
notification published on 27.06.2019 for the academic year 2019-20.
46. On a consideration of the rival submissions that have been
made on behalf of either side, it is apparent that the deficiencies that
have been pointed out in the petitioner college of faculty deficiency of
7.4%, which is more than 5% and residents deficiency of 8.5% which
is more than 5% and 64 X-rays on the day of assessment, the Hearing
Committee minutes dated 07.05.2019 adverted to hereinabove having
observed that the clinical material was consistently inadequate for the
last two assessments, taking the same into account and the verdict of
the Hon'ble Supreme Court in relation to the maintainability of
standards of medical education, it is apparent that the deficiencies as
pointed out by the minutes dated 07.05.2019 of the Hearing
Committee have been taken into account by the respondent no.2 and
that the order of the respondent no.2 dated 18.05.2019 not granting the
permission to the petitioner college for an intake of 150 MBBS
students i.e. the second batch for the academic year 2019-20 cannot be
faulted with.
47. As regards the reliance placed on behalf of the petitioner on the
communication dated 21.06.2019 bearing No.U-12012/350/2019-
ME.I [FTS.8013875] of the Government of India in relation to
increase of MBBS seats under the EWS quota for the academic year
2019-20 under which the petitioner no.1 inter alia seeks that the
counselling may be permitted for the EWS quota for the academic
year 2019-20, it is essential to observe as held vide judgment dated
29.07.2019 of this Court in W.P.(C) No.6827/2019 titled as "L.N.
Medical College & Research Centre and Anr. Vs. Union of India,
Ministry of Health And Family Welfare & Ors." & W.P.(C)
No.6828/2019 titled as "Chirayu Medical College & Hospital & Ors.
Vs. Union of India, Ministry of Health And Family Welfare &
Ors.", for the academic year 2019-20, the filling up of the MBBS
seats under the EWS quota for the year 2019-20 as notified by the
respondent no.1 relates only to the colleges which are being run by
Government controlled societies, municipal bodies, public private
partnership and under self financing mode as communicated vide a
communication dated 25.06.2019 bearing No. MCI-34(41)(EWS)/
2019-Med./126285, in terms of the Office Memorandum dated
28.06.2019 bearing F.No.12-3/2019-Ul issued by the Government of
India, which reads to the effect:-
"F.No. 12-3/2019-Ul
Government of India
Ministry of Human Resources Development
Department of Higher Education
Dated the 28th June, 2019
OFFICE MEMORANDUM
Subject:- Reservation in admissions in higher
courses in Unaided Private Educational
Institutions for Economical Weaker Section
(EWS)- regarding.
The undersigned is directed to refer to OM No
F.No.C.18018/05/2019- MEP dated 25th June,
2019 of M/o Health &Family Welfare (MH&FA)
and to say that at present there is no reservation
specified by this Ministry in Unaided Private
Education Institutions."
48. In view of the observations hereinabove qua the deficiencies
pointed out by the minutes dated 07.05.2019 of the Hearing
Committee taken into account by the respondent no.2, with it having
been held hereinabove that thus, the non-grant of permission to the
petitioner College for the intake of 150 students i.e. the 2 nd Batch for
the academic year 2019-20 by the respondent no.2, cannot be faulted
with, the other contentions that are raised on behalf of either side, do
not require consideration presently.
49. In the circumstances, the petition and the accompanying
application are dismissed.
ANU MALHOTRA, J
th
AUGUST 29 , 2019/NC/vm
