Medical Council of India Vs. The Chairman, S.R. Educational and Charitable Trust & ANR. [OCTOBER 29, 2018]
2018 Latest Caselaw 800 SC

Medical Council of India Vs. The Chairman, S.R. Educational and Charitable Trust & ANR.

[Civil Appeal No(S). 10372 of 2018 arising out of Special Leave Petition (C) No.24120 of 2018]

Medical Council of India Vs. The Chairman, Alazhar Medical College and Super Speciality Hospital & Ors.

[Civil Appeal No(S). 10373 of 2018 arising out of Special Leave Petition (C) No.24130 of 2018]

Medical Council of India Vs. D.M. Education and Research Foundation & Ors.

[Civil Appeal No(S). 10374 of 2018 arising out of Special Leave Petition (C) No. 27763/2018 D.32809 of 2018]

Medical Council of India Vs. Dr. P. Krishna Kumar & Ors.

[Civil Appeal No(S). 10375 of 2018 arising out of Special Leave Petition (C) No.27764/2018 D.32811 of 2018]

ARUN MISHRA, J.

1. The Medical Council of India (for short, "the MCI") is aggrieved by the judgment and order dated 30.8.2018 passed by the High Court of Kerala at Ernakulam. The High Court has quashed the order passed by the Government of India declining to grant renewal permission/ recognition to respondents - medical colleges. The High Court has directed the Commissioner for Entrance Examinations, Government of Kerala to allot students to the colleges for the academic year 20182019 immediately. The MCI has also been directed to carry out the inspection to verify whether the colleges had rectified the deficiencies found at the time of earlier inspection. In case they have not done so, the MCI shall be at liberty to take appropriate action against them including the enforcement of the Bank Guarantees. At the same time, it has been ordered that in case fresh deficiencies are detected, the colleges shall be given the opportunity to rectify such deficiencies within a stipulated time.

2. The High Court has decided the petitions of the four colleges by the common order. Probably, High Court had felt that the question on which it decided the matters was common, however, the facts of each and every college are different, the deficiencies found obviously varies and the order of the High Court is subject to further judicial review. It would have been appropriate for the High Court to decide the matter by separate orders duly reflecting the facts of each case and the deficiencies found. Clubbing of matters in the method and manner it had been done may indicate nonserious approach. In three of the matters, question was that of admissions in the academic session 20182019 and in one of the matters, the question pertains to the grant of recognition as well as admissions.

3. The High Court has observed that there are many serious deficiencies and the lack of patients would result in a lack of exposure of the students in so far as treatment of patients was concerned. The deficiencies, such as lack of teaching faculty, residents, lack of a sufficient number of surgical procedures, though, are of nature which would have a serious impact on the quality of education, the explanation offered by the colleges on the deficiencies has not been found to be genuine to impress the court. Notwithstanding the aforesaid observations, the High Court has proceeded to grant the relief to the medical colleges.

4. The colleges had contended that they had rectified the deficiencies and the Hearing Committee had recommended the MCI to review the case. Accordingly, the Central Government had required the MCI to review its earlier stand. However, the Executive Committee of MCI refused to reconsider its earlier stand in view of the provisions contained in the Regulations 8(3)(1)(a) of the Establishment of Medical College Regulations, 1999 (for short, "the Regulations"). The MCI declined to review the order on the ground that the time for the MCI to send its recommendations to Central Government had already expired on 30th April 2018 and the schedule was required to be strictly adhered to.

5. The High Court had observed that opportunity of hearing would mean to make a representation. Timely assessment is integral to the scheme and such an opportunity is to be given not only when permission for the establishment of a new college is under consideration but even in cases of subsequent renewal of such permission. The High Court had referred to the decisions in Swamy Devi Dayal Hospital & Dental College v. Union of India & Ors. AIR 2014 SC 284 and Priyadarshini Dental 4 College and Hospital v. Union of India & Ors., 2011 AIR SCW 2383= 2011 (4) SCC 623. At the time of renewal what is required to be considered is whether the prescribed faculty and infrastructure is available. There is some difference between the renewal and the parameters prescribed for the establishment.

The High Court has relied upon the decision in D.M. Education and Research Foundation v. Union of India [2016 KHC 171] in which a Division Bench of the High Court of Kerala held that the principle of natural justice has to be strictly adhered to. The stand taken by the MCI had been rejected and it was observed that compliance once reported was required to be considered, thus, the MCI ought to have reconsidered the matter. In the cases, the recommendation to review had not been considered, lack of time could not be accepted as an excuse to deny the petitioner the right claimed to which they were entitled.

6. It was urged by learned senior counsel for the MCI that the High Court has failed to consider the provisions contained in the Regulation 8(3)(1)(a) of the Regulations that was attracted in the matter of grant of renewal/ recognition. If upon assessment the deficiencies had been found to be gross as provided in the aforesaid regulation, the college was not entitled to seek liberty of compliance and further verification in the same academic year. The decision of this court in Medical Council of India v. Vedantaa Institute of Academic Excellence Pvt. Ltd. & Ors. 2018 5 (7) SCC 225 though referred to in the judgment, has not been discussed but, the decision of the Division Bench of the High Court has been preferred which was contrary to it.

Similarly, the decision of this Court in Medical Council of India v. The Principal, KMCT Medical College, and Anr. (Civil Appeal No.8429 of 2018) had not been adverted to. In the matter of D.M. Education and Research Foundation (supra) the compliance was reported by the college belatedly on 22.5.2018. Thus, considering the time schedule, it was not possible to make the inspection again for verification of the compliance. Therefore, it was not legally permissible to grant any relief for the academic session 20182019 to the said college. However, it was the case of recognition where the main provision of regulation 8 (3)(1) was applicable. For recognition, its case would be considered and admissions can be made only in the next academic session i.e. 20192020 if permitted.

7. Shri Neeraj Kishan Kaul, learned senior counsel appearing on behalf of the two of the colleges contended that when the Government of India/Hearing Committee had directed the MCI to review the recommendation and consider the compliance reported, the order was binding upon the MCI. It was necessary for the MCI to consider the compliance that was reported and to conduct a fresh inspection for assessment, in case, it was so required and thereafter to take decision afresh. Declining to review the earlier recommendation clearly indicate that there was nonapplication of mind and subsequently Government of India erred in accepting the stand of the MCI declining to review and consider the compliance. Thus, the High Court was fully justified to permit the colleges to admit the students subject to removal of the deficiencies and liberty has been given to the MCI to inspect the colleges and in case of deficiencies still subsist, to take appropriate action.

8. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the respondent college P. K. Dass Institute of Medical Sciences vehemently contended that the report of the Assessors was absolutely incorrect. The website portal of the college clearly indicated the number of indoor patients occupying the beds in the hospital. The patients were more than 500. The Assessors had wrongly reported the number of indoor patients in their report. A large number of patients were in the operation theatre, bathrooms, and other places. They have been illegally excluded. He further contended that somebody is required to consider all these factual aspects. The High Court has also not considered the explanation offered. At some level, somebody is required to consider the compliance. Assessors cannot be said to be the final arbiter in such matters when the report is exfacie incorrect as apparent from the explanation offered by the college. Thus, this court should look in the same and grant the relief to the college discarding the report of the Assessor.

9. Shri Hufeza H. Ahmedi, learned senior counsel appearing on behalf of D.M. Education and Research Foundation contended that the case of the respondent falls for recognition and proviso (a) to Regulation 8(3)(1) of Regulations was not attracted. The opportunity of compliance was required to be given and by not giving opportunity the regulation has been violated. Thus, the decision rendered by the MCI/Government of India cannot be said to be appropriate. The MCI, thus, deserves to be directed to take a decision afresh in the matter of college in question. No case for interference is made out in the matter of D.M. Education and Research Foundation as the matter was with respect to the recognition-cum-admission.

10. When we consider the report of the Assessors, in the case of S.R. Educational and Charitable Trust, the physical inspection was carried out on 6th and 7th November 2017. The question involved was of 3rd Batch of 100 students for the academic year 20182019. A large number of deficiencies were found as observed in the order dated 31.5.2018 passed by the Government of India:

1. Deficiency of faculty is 12.64% as detailed in the report.

2. Shortage of Residents is 15.21 % as detailed in the report.

3. OPD attendance at 2 p.m. on the day of assessment is 575 against the requirement of 600.

4. Bed Occupancy at 10 a.m. on the day of assessment is 37%.

5. There was NIL Major Operation on the day of assessment.

6. There was NIL Normal Delivery on the day of assessment.

7. The workload of Histopathology was NIL on the day of assessment.

8. OPD: Separate Registration counters for male/ female are not available. Registration counters for OPD/ IPD patients are not separate.

9. Audiometry room is not air-conditioned. Speech Therapy is not available.

10. Casualty: Separate Casualty for O.G. is not available.

11. O.T.s: They are under renovation.

12. ICUs: There was NIL patient in SICU and only 1 patient in ICCU and 2 patients each in MICU, PICU/ NICU.

13. Radiodiagnosis department: Only 1 Mobile X-ray machine is available against the requirement of 2. Only 1 Static X-ray machine is available against the requirement of 2.

14. C.T. Scan is not available.

15. CSSD: Receiving and Distribution points are not separate.

16. Central Research Laboratory is not functional.

17. Lecture Theaters: 2 Lecture Theatres are available against the requirement of 3.

18. Central Library: Students Reading room (Outside) is not furnished. 2,968 books are available against the requirement of 3,000.

19. Central Photography section is not available.

20. Students' Hostels: They are shared with BDS students. 21. Residents' Hostel: It is not available.

22. Residential Quarters: NIL quarters are available for Nonteaching staff.

23. Pathology department: Audiovisual aids are not available. Specimens are not available in the Museum. 4 Service Laboratories are not available.

24. Microbiology department: Audiovisual aids are not available. The museum is not available. 7 Service Laboratories were not available. Media Preparation facility, Autoclaving are not available.

25. Pharmacology department: Audiovisual aids are not available. The museum is not available. Clinical Pharmacology laboratory is not available.

26. Forensic Medicine department: Audiovisual aids are not available. Museum is not available. Cold storage is not available. Autopsy block is under construction.

27. Community Medicine department: Audiovisual aids are not available. Museum is not available. Practical Laboratory is not available. It is not furnished.

28. RHTC: Cold chain equipment is not available. Survey/ MCH/ Immunization/ FW Register are not available.

29. CME: There was no CME activity during the year.

30. Other deficiencies are as pointed out in the assessment report.

11. In the matter of AlAzhar Medical College and Super Specialty Hospital the Government of India in its order dated 31.5.2018 has mentioned the deficiencies found by the Assessors in the inspection made, in the matter of renewal of permission for 5th Batch of 150 seats in MBBS course for the academic year 20182019. The deficiencies mentioned are extracted herein:

1. Deficiency of faculty is 37.12% as detailed in the report.

2. Shortage of Residents is 100 % as detailed in the report.

3. Residents and Assistant Professors are drawing more salary than Professors and HOD. All Senior and Junior Residents have been appointed with orders mentioning duty hours from 8 am to 4.30 pm. Hence, they have not been counted as SR/JR.

4. OPD attendance up to 2 p.m. on the day of assessment is 592 against the requirement of 1200.

5. Bed Occupancy at 10 a.m. on the day of assessment was 46.15%.

6. Patients:

(a) In Pediatric wards case sheets of 35 patients shows IV Antibiotics going on but on cross verifying with patients, relatives it was found that no injections were given. Also, none of such patients had IV Cannulas inserted hence they were not counted.

(b) In Pulmonary Medicine Department, female ward patients had a diagnosis of COPD, Bronchiectasis, Pneumonia etc. on taking history and examining the patient, no corroborative clinical findings were found. Also, none of the patients had Chest X-rays done. Hence, they were not counted.

(c) In Orthopedics ward, 15 patients with complaints of Neck Pain, Leg pain under evaluation were not counted as they were asymptomatic also did not have x-rays.

(d) In Ophthalmology female ward, 3 patients were kept with. diagnosis of corneal opacity. On examination, no such findings were seen.

Hence not counted.

7. There were only 3 Major Operations on the day of assessment.

8. There was only 1 Normal delivery & NIL Caesarean Section on the day of assessment.

9. Histopathology workload was only 4 & Cytopathology workload was 2.

10. OPD: Plaster Cutting room is not available.

11. Casualty: Separate Casualty or O.G. is not available.

12. ICUs: There was only 1 patient in NICU & 2 patients each in PICU, SICU on the day of assessment.

13. There was NIL issue of Blood on the day of assessment.

14. Residential Quarters: 24 quarters are available for faculty against requirement of 26.

15. Anatomy Department: Band Saw is not available.

16. Physiology department: Mammalian Laboratory is not available.

17. RHTC: Cold Chain equipment are not available. Immunization is not available.

18. Dean has refused to sign the assessment report.

The provision contained in Regulation 8(3)(1)(a) of the Regulation had been invoked by the MCI and the decision had been taken not to grant permission for admission in the academic session 20182019.

12. In the case of P.K. Dass Institute of Medical Sciences, Palakkad, Kerala the matter pertains to the renewal of permission for admission of 5th Batch of 150 seats in MBBS course for the academic year 20182019. On the basis of the report of the Assessors dated 31st October & 1st November 2017 the matter was considered and following deficiencies were noted:

1. Deficiency of faculty is 9.2% as detailed in the report.

2. OPD attendance up to 2 p.m. is 1,060 against the requirement of 1,200.

3. Bed Occupancy is 40.60 % at 10 a.m. on the day of assessment.

4. There were only 09 Major Operations on the day of assessment.

5. Central Kitchen: No register is available in the kitchen.

6. Other deficiencies as pointed out in the assessment report.

13. Regulation 8(3)(1)(b) of the Establishment of Medical College Regulation (Amendment), 2010, had been applied by the MCI as the bed occupancy was less than 65%. As per the MCI, the compliance of rectification of the deficiencies could not have been considered for renewal of the permission in the same academic year.

14. Regulation 8(3) is extracted hereinunder:

"8. GRANT of PERMISSION:

(1) The Central Government, on the recommendation of the Council for Letter of Permission, may issue a letter to set up a new medical college with such conditions or modifications in the original proposal as may be considered necessary. This letter can also include a clear-cut statement of preliminary requirements to be met in respect of buildings, infrastructural facilities, medical and allied equipment's, faculty and staff before admitting the first batch of students. The formal permission may be granted after the above conditions and modifications are accepted and the performance bank guarantee for the required sums are furnished by the person and after consulting the Medical Council of India.

(2) The formal permission may include a time-bound program for the establishment of the medical college and expansion of the hospital facilities. The permission may also define annual targets as may be fixed by the Council to be achieved by the person to commensurate with the intake of students during the following years.

The following shall be added:

8(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 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 t