Madras High Court
Indira Gandhi Medical College And vs Medical Council Of India on 29 July, 2010
Author: V. Dhanapalan
Bench: V. Dhanapalan
In the High Court of Judicature at Madras
Dated :: 29..07..2010
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
Writ Petition No: 15956 of 2010
Indira Gandhi Medical College and
Research Institute
(Government of Puducherry Institute)
Rep. by its Registrar
(Run by Perunthalaivar Kamaraj
Medical college society)
Vazhudavur Road,
Kathirkamam,
Puducherry - 605 009 . Petitioner
-vs-
1. Medical Council of India
Represented by its Chairperson
to the Board of Governors.
2. Union of India
represented by
The Secretary to Government,
Ministry of Health & Family Welfare,
Government of India,
Nirman Bhavan,
New Delhi. Respondents
Writ petition under Article 226 of the Constitution of India praying for issuance of a certiorarified mandamus calling for the records of the first respondent in MCI-No.34(41)/2010-Med./924 dated 15.07.2010 and
quash the same and consequently direct the first respondent to grant permission to the petitioner to start medical college as per the application dated 14.8.2007.
For petitioner : Mr. Vijay Narayanan
Senior Counsel for
Mr. D. Sreenivasan
Government Pleader (Puducherry)
For 1st respondent : Mr. V.P. Raman
For 2nd respondent : Mrs. R. Maheswari
Standing Counsel for the
Central Government
.. .. ..
O R D E R
Heard Mr. Vijay Narayanan, learned Senior counsel with Mr.D.Sreenivasan, learned Additional Government Pleader (Puducherry), appearing for the petitioner, Mr. V.P. Raman, learned counsel appearing for the 1st respondent and Mrs. R. Maheswari, Central Government standing counsel for the 2nd respondent.
2. In this writ petition a challenge has been made to an order passed by the 1st respondent in Proceedings No: MCI-No.34(41)/2010-Med./924 dated 15.07.2010 and quash the same and consequently direct the first respondent to grant permission to the petitioner to start medical college as per the application dated 14.8.2007.
3. Petitioner is Indira Gandhi Medical College & Research Institute, a Government of Puducherry Institute. The Government of the Union Territory of Puducherry with a humane object of establishing a Government Medical College announced in the Assembly on 7th July 2004 that it has decided to establish a Government Medical College. After that a notification in the Gazette was issued on 31st May, 2005, for establishing a society to run the Medical College. The Vision of the Society is to establish a center for excellence in teaching, research and patient care amongst the best in the country on par with All India Institute of Medical Science, New Delhi, or PGIMER, Chandigarh, with a goal of establishing a medical college in the Government Sector to admit 150 UG students per year by having adequate facilities to start postgraduate courses leading to DNBE, MD, MS or Diploma in the broad specialties as soon as permission from the Medical Council of India, hereinafter referred to as M.C.I., is obtained and to start super specialties courses leading to the DM or M.ch in phase two. Initially the application was made in the name of the Director Perunthalaivar Kamaraj Medical College and Research Institute, Puducherry, but later it was named as Indira Gandhi Medical College and Research Institute.
4. For this project a sum of Rs.132 crores have been spent towards the construction and other activities and 128 faculty members have been appointed apart from the non-teaching staff and a formal application for recognition has been made to the M.C.I. On 14.08.2007 and thereafter, the first respondent / M.C.I. deputed a team and conducted the first Inspection on 10.05.2010 and 11..05..2010. By that time, the M.C.I. was dissolved on 15.05.2010 by Government of India, vide Notification No.2 of 201 which has been notified in the Gazette of India, New Delhi, on the same date. The M.C.I. Office Bearers were substituted by the Board of Governors and 6 new Board of Governors were appointed namely, Dr. Shiv Kumar Sarin, as Chairperson, Prof. Ranjit Roy Chaudhury, Dr. Sita Naik, Dr. (Prof.) R.N. Salhan, Dr. Devi Prasad Shetty and Prof. Gautam Sen as Members and they took over the administration of the M.C.I. and thereafter a second Inspection team was deputed and the inspection was held on 21st and 22nd June 2010. After the Inspection, there was no information from the first Respondent. Only on 13.07.2010, during evening hours, it was published in the Website of the first Respondent that the Petitioners approval for the establishment of a Medical College for the year 2010-11 was rejected. A communication dated 15.07.2010 was received on 19.07.2010 by the State stating that "return of application as disapproved".
5. According to the petitioner, the Board of of Governors considered the assessment reports dated 21st & 22nd June, 2010 and disapproved the scheme for the following reasons :
" I. Infrastructural facilities are inadequate as noted below :
a. The Central Library has a total area of 566 sq. mt. against the required area of 1600 sq. mt.
b. Construction of separate library block with 2400 sq. mt. is under progress only. c. The hostels are not furnished and the construction is still ongoing for further accommodation. d. There is no provision for a mess.
e. Residential quarters are yet to be constructed.
f. No static x-ray unit is available as against the requirement of minimum of 2 static units. g. In certain areas of the main building of the college & hospital, the civil as well as electric work still needs to be completed. The area around the building is not properly landscaped and no roads have been laid down.
II. Clinical material is grossly inadequate as noted below:
a. The Bed occupancy is only 74 and 71% on the days of assessment (21st 22nd June, 2010) as against the requirement of minimum of 80%. b. There were no patient admitted in any of the ICUs on the days of assessment. c. The number of major surgical operations were Nill on the days of assessment. d. There was only one delivery & no caesarian section on the days of assessment. e. Only 129 Nursing staff are available as against the requirement of 175. III.Other deficiencies pointed out in the assessment report."
The case of the petitioner is that the above discrepancies pointed out by the Board of Governors are incorrect and suffer from non application of mind for the reasons that, (1) As per the statement, indicating year-wise targets to be achieved by applicant of a new medical college admitting 150 students under Section 10A of the Indian Medical Council Act, hereinafter referred to as the Act, the year-wise targets are given except the central library of 2400 sq.mts. In fact the total number of books required is 11000 out of which 3000 are for first year and 5000 during second year, 7000 during third year, 9000 in the fourth year and 11000 during final and fifth year. Similarly the journal requirement is 100 (both Indian and Foreign) the first year requirement is 20, second year requirement is 40, and third year requirement is 60 fourth year requirement is 80 and in the final year 100. According to the petitioner, the central library requirement of 2400 sq.mt. is not necessary during the first year hence the present available area of 566 sq.mt. is proportionate to the first year. Even the inspection report has pointed out that separate library block with 2400 sq.mt. is under progress only and it is informed it would be completed in another six months.
(2) Regarding the report that the hostels are not furnished and the construction is still ongoing for further accommodation, it is stated by the petitioner that the hostels were not furnished at the time of inspection, since the first batch of students are due to be admitted in the month of August and September 2010. Now the hostels are furnished fully. The two hostels which are required for the first year are fully furnished and construction work is over and the other two hostels are almost over and these two hostels are required for the second, third and fourth year only and which will be completed in another two months. Hence there is no shortage of hostel space for the initial first year admission.
(3) The further deficiency pointed out is that there is no provision for a mess. In this regard the explanation submitted is that the first batch of students are due to be admitted in August and September 2010, provision has now been made for the mess. Regarding the other deficiency that residential quarters are yet to be constructed are concerned, at page No. 6 of inspection report, it is stated that 32 bath attached rooms are to be constructed within the campus at a distance of 0.5 km to the college for the teaching faculty and non teaching staff and this work will be completed in another two months.
(4) It is submitted that the institute is paying 20% house rent allowance and many of the staff are from Puducherry who are having their own houses and may not prefer residential accommodation in the campus. Even if it is necessary for the teaching and non teaching staff, the Government of Puducherry will allot quarters to them from the general pool of Government quarters available at Lawspet.
(5) Regarding the inadequacy of Static x-ray unit as against the requirement of minimum of 2 static unit the petitioner had explained that as per the year-wise requirements two static x-ray machines (300 ma and 500 ma) should be available. As per page 11 of the inspection report, the inspectors have already stated that supply order has been placed for the two static units of 500 ma each which is more than the requirement and it is informed that even though one mobile x-ray machine of 30 ma is required two mobile x-ray 60 ma machines are available which is more than the requirement. As regards the deficiency that in certain areas of the main building of the college and hospital, the civil as well as electric work still needs to be completed and the area around the building is not property landscaped and no roads have been laid down is concerned, it is explained that the total construction plan for the college and hospital building is ground plus 4 stories but for the first year the requirement is Ground plus 1 storey and for this the civil and electrical work has been completed. Further work is only for the subsequent years. The landscaping and laying of roads is under fast progress.
(6) In respect of the deficiency pointed out that Clinical material is grossly inadequate namely the Bed occupancy is only 74 and 71% on the days of assessment (21st and 22nd July 2010) as against the requirement of minimum 80%, the petitioners explanation is as per the minimum standard requirement for a medical college vide para B-1.8 the indoor beds occupancy shall be a minimum of 80% per annum and this has been amended as 70% for the first year vide amendment notification No. MCI.34(41)/2009-Med./20072 dated 08.07.2009 and as per the year-wise target also it is 70% for the first year vide Sl.No.41 and 80% for second year onwards. As regards the point raised that there were no patient admitted in any of the ICUs on the days of assessment, it is stated that on the day of assessment or on the previous day there were no serious cases or acute cases which requires intensive care which came to the hospital and hence there is no ICU admission on the days of assessment. It was reported that the number of major surgical operations were Nil on the days of assessment for which the petitioners explanation is as per the hospital inpatients case history, no cases required major surgical operations and on the days of inspection all the faculty were required for physical and certificate verification by the inspectors and hence no major surgical operations were fixed on the days of assessment. In respect of the report that there was only one delivery and no caesarian section on the days of assessment, it is submitted that since there were no necessity for caesarian it was not done on the days of assessment and for the complaint that only 129 Nursing staff are available as against the requirement of 175, the explanation is as of now 175 nursing staff are available as per the requirement. As per the inspection report of the inspectors there are no other deficiencies pointed out in the assessment report except the above. In fact as per pages 20 to 22 of the assessment report, there are 30 excess faculties which include Asst. Professor, Associate Professor and Professor when the country is facing acute shortage of faculties. In fact these faculties have been recruited to meet the need of next renewal inspection.
According to the petitioner presently the following Medical Colleges are functioning at Puducherry :
1. Jawaharlal Institute of Postgraduate - Central Government Medical Education and Research, Institution Puducherry
2. Pondicherry Institute of Medical Sciences, Puducherry - Private
3. Arupadai Veedu Medical College, Puducherry - Private
4. Mahatma Gandhi Medical College and Research Institute, Puducherry - Private
5. Manakula Vinayagar Medical College and Research Institute, Puducherry - Private
6. Sri Lakshminarayana Institute of Medical Sciences, Puducherry - Private
7. Sri Venkateswara Medical College - Private
8. Vinayaga Mission Medical College Karaikal. - Private JIPMER being a Central Government Institution only allots 24 seats to Puducherry residents and other seats are filled on All India Basis. From the above, it is very clear that there is no Government Medical College in Puducherry which will serve the need of the poor and down-trodden students who cannot afford to pay the higher fees as demanded by the private medical colleges. It is for this very purpose that the Government of Puducherry through the Petitioner had established the particular college spending huge amount and recruiting faculty from all over the country.
6. As far as the Puducherry Government is concerned it is spending about Rs.15 crores per year towards reimbursement of tuition fees for students studying in private colleges through Government quota. The state will stand to save a huge amount of money if it has its own medical college. It is also submitted that the petitioner had spent nearly Rs.132 crores towards construction, purchase of equipments and salary for the teaching staff and that he disapproval will cause great monetary loss to the Government Exchequer. Further, it is submitted that if the petitioner medical college is granted approval, this will be rated as one of the premier medical colleges in India with regard to the faculty, infrastructure, buildings etc. and that the State of Puducherry has institutions pertaining to various fields of education like Engineering, Dental, Veterinary and Agriculture except a full fledged Medical Institution.
7. As per the provisions of the Act, particularly Section 7 that is while making recommendations, the council has to take due regard to certain factors and one of the factors necessary to be taken into account is regarding infrastructural facilities which have been provided or would be provided within the time limit specified under the scheme. It is submitted that if the scheme proposed by the petitioner, read with admission scheme set out by the Honble Supreme court will be taken into account it will be clear that infrastructural facilities should be in place before the last date for admission of students i.e. 30th September of the academic year 2010-11. Even these factors are taken into account it is submitted that the petitioner will be in a position to offer all these facilities before 30th September 2010. Even these factors had been taken into account it is submitted that the 1st respondent Medical Council of India ought to have given sufficient time to rectify the deficiencies pointed out in the inspection report.
8. At the first instance the inspection took place on 10th and 11th of May 2010 and after the new Board of Governors took over, the 2nd inspection took place on 21st and 22nd of June 2010. No order was communicated until 15th July 2010 when the impugned order was passed. Even this communication dated 15.7.2010 has given very minor and frivolous reasons. It is also pleaded that in a number of similar cases, more serious deficiencies have been overlooked. But in the case of Government College when it has its own obligation to provide quality medical education to poor and downtrodden residents of Pondicherry, the Medical Council has adopted discriminatory attitude. The reasons given in the impugned order are against its own guidelines and total non application of mind in as much as all the alleged deficiencies are very minor in nature and the same can be rectified before the commencement of the course. There is no reason for Medical Council to adopt a discriminatory attitude and deny permission to the petitioner alone. The Medical council ought to take into account that very modern hospital and Medical college has been established at very higher cost of Rs.132 crores and with the latest equipments has been installed to make it a State of Art facilities. Therefore, petitioner prayed for quashing the impugned order.
9. In the additional affidavit filed by the petitioner, it has been stated that besides the investment of huge amount on the construction and other activities, so far 128 faculty members have been appointed apart from the non-teaching staff and after this a formal application for recognition was forwarded to the M.C.I. Further it is stated that M.C.I. was dissolved on 15.05.2010 by the Government of India vide Notification No: 2 of 2010 and M.C.I. Office Bearers were substituted by Board of Governors and 6 new Board of Governors were appointed. It has been specifically averred that the communication dated 15.07.2010 was received on 19.07.2010 by the petitioner from the 1st respondent stating "return of application as disapproved". The impugned order is in violation of Section 10 (A) (4) of the Act in as much as no opportunity was given before disapproving the scheme. Therefore, the petitioner challenged the rejection approval.
10. When the matter was taken up "For Admission" on 21.07.2008 this Court directed the petitioner to file an affidavit stating the compliance of the items mentioned in the impugned order of the 1st respondent dated 15.07.2010 and on 28.07.2010 this Court, after hearing the elaborate arguments of the respective counsel directed the petitioner to file an affidavit setting out the following :
" (i) The date of completion of Central Library Building ;
(ii) Exact number of rooms available in the hostel and
(iii) Letter from Secretary, Housing, regarding willingness to allot residential quarters to the teaching and non-
teaching staff as per first year M.C.I. requirement.
It has been explained by the petitioner in the additional affidavit stating that as regards the Library even though the requirement of the first year M.B.B.S. Course is complied with as stated in the earlier affidavit, the requirement and furnishing for the entire course i.e. 2400 sq. Mts. Will be completed within two months since construction is under progress. Another aspect of the matter regarding the availability of the rooms in the hostel, there are 4 blocks out of which 2 blocks are fully complete each block consists of 19 single rooms and 85 double rooms and the total capacity of the two block is 370 whereas the requirement for First year is only 112 students. The other two blocks in which 90% work is over will be completed in two months. As regards the residential quarters petitioner has given a compliance report enclosing a letter from the Secretary (Housing), Government of Puducherry, expressing willingness to allot residential quarters to the 12 teaching and 20 non-teaching staff as per first year M.C.I. requirement and therefore, the deficiencies pointed out by the respondents had been complied with. Further, the petitioner pleaded that most of the reasons mentioned in the impugned order has been complied with by the petitioner and it is the only Government Medical College in the Union Territory of Puducherry and for the benefit of the backward region compared with the neighbouring States and, therefore, it is necessary that such Government Medical College is granted permission so that the social imbalance in that region can be set-right in the long run and the students from the poor and down-trodden section will get the privilege to become Doctors and serve the rural and poor people of the society.
11. According to the petitioner a major portion of the budget allocation made by the Government of Puducherry in the past years has been spent for the development of infrastructure in the health sector and therefore, they prayed for setting aside the impugned order for the above stated reasons.
12. The first respondent, who is the competent authority in this matter to look into the problem of the petitioner has filed an appropriate counter. All the averments of the petitioner are denied as incorrect except those that are specifically admitted in the counter. According to the 1st respondent, M.C.I. is a body constituted under the provisions of the Act, and it has been given the responsibility of discharging the duty of maintenance of highest standards of medical education in the country and, as such, the Hon'ble Supreme Court in the case of State of Kerala vs. T.P.Roshna ( 1979 S.C.C. 580 ) observed that The Indian medical Council Act, 1956 has constituted the Medical Council of India and is 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. The counter also further states that under Section 33 of the Act the prior approval of the Central Government is mandatory. Under Section 10 A of the Act, which was incorporated by way of an amendment under Act 31 of 1993, every person desirous of establishing a medical college and/or to start a new or higher course of study in the existing medical college has to obtain prior permission from the Central Government.
13. A collective reading of the provisions of Section 10 A of the Act and the qualification criteria prescribed under the new regulations namely the Establishment of Medical College Regulations, 1999 reveals that any person desirous of establishing a medical college is required to make an application in terms of the qualifying criteria to the Central Government. Every applicant is required to submit application / scheme as per the 1999 Regulations clearly indicating the compliance with the statutory conditions laid down under these regulations.
14. After the application / scheme submitted by the applicant is received from the Central Government by the Medical Council of India, it is evaluated and the verification takes place by conducting physical education by the inspector team of the M.C.I. The recommendations for grant of Letter of Permission (LOP) to the applicant for making admission in the first year M.B.B.S. Course in the medical college. The application for establishment of new medical college by the petitioner was received through the Central Government on 25.09.2007. The college authorities vide Council letter dated 07.11.2007 were requested to send their willingness for carrying out the inspection. The application along with letter dated 05.12.2007 received from the Director, Perunthalaivar Kamaraj Medical College & Research Institute, Puducherry, with regard to conduct of combined inspection LOI and LOP after 31.12.2007 was considered by the executive committee where the members of the Adhoc Committee appointed by the Hon'ble Supreme Court were also present at its meeting held on 29.12.2007. The operative part of the decision arrived at are as follows :
"The members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council considered the letters dated 20.09.2007 and 25.09.2007 issued by the Central Government pertaining to the permission for increase of seats in MBBS Course from 75 to 100 at Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry, for the academic year 2007-08 and observed that in the past whenever an inspection to verify the facilities available at the institute for continuance of recognition of MBBS degree has been arranged by the Council the institute has repeatedly requested for postponment of the inspection for continuance of recognition of MBBS degree granted by Puducherry University in respect of students being trained at Jawaharlal Institute of postgraduate Medical Education and Research, Puducherry, under one pretext or another whenever the inspection is being arranged and decided to schedule the inspection of the institute within the period of six weeks and directed the office to intimate the institute accordingly."
The decision of the Executive Committee / Adhoc Committee was communicated to the Central Government vide Council letter dated 31.12.2007. The Central Government, vide its letter dated 21.01.2008, requested the Council to consider the requests of the petitioner for combined inspection if received through the Central Government before 15th March, 2008 for the academic year 2008-2009. The same was considered by the Executive Committee at its meeting held on 02.02.2008 where the members of the Adhoc Committee appointed by the Hon'ble Supreme Court were also present and it was decided as under :
" In view of the above, the members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council after detailed deliberations decided that suitable communication be sent to the Government of Puducherry for the medical colleges / institutions where the admissions have been made by them in excess of their management quota for the academic year 2007-08, by calling upon them to correspondingly reduce the three (3) admissions in the management quota for the academic year 2008-09 and for corresponding increased allocation of the free seat candidates by the concerned State Government for the academic year 2008-09 in respect of Sri Venkateshwara Medical College, Puducherry, so as to set-off the undue advantage gained by the medical college by making excess admissions in the management quota in the academic years 2005-06, 2006-07 and 2007-08. A copy of the communication be sent to the Director Medical Education of Puducherry and Vice Chancellor of Pondicherry University."
15. In the counter of the respondent, it is stated that thereafter the Central Government vide its letter dated 18.03.2008 and 22.09.2008 requesting the Council to evaluate the proposal for the academic year 2009-2010 at the appropriate time subject to the validity of Essentiality Certificate and Consent of Affiliation. The Council vide letter dated 06.12.2008, 24.01.2009 and 14.02.2009 requested the college authorities to send their willingness to carry out the inspection. But, the Director of Perunthalaivar Kamaraj Medical College and Research Institute, Puducherry, vide letter dated 18.02.2009 informed that the college is not ready for inspection and hence, the Standard Inspection Form A & B, Declaration Forms were not submitted. Therefore, he requested the council to consider their application for next academic year 2010-11 and the same was considered by the Executive Committee at its meeting held on 13.03.2009 and decided to return the application to the Central Government recommending the disapproval of Scheme as there is no provision under Section 10 (A) of the Act or the regulations framed therein to keep the application pending in the Council office for the next academic year. The decision of the Executive Committee was communicated to the Central Government vide Council letter dated 31.03.2009. Further the Central Government vide letter dated 29.05.2009 requested the Council to evaluate the proposal for establishment of a new medical college at Puducherry by Puducherry Medical College Society (Government of Puducherry) for academic year 2010-11 at appropriate time subject to the validity of Essentiality Certificate and Consent of affiliation. Further the Council vide letter dated 14.10.2009 requested the college authorities to submit fresh Consent of Affiliation. The Dean, Perunthalaivar Kamaraj Medical College & Hospital vide letter dated 19.11.2009 submitted a fresh Consent of Affiliation from the Pondicherry University. The Pondicherry University revalidated the Consent of Affiliation vide their letter No: PU/AS-D/Aca-8/15/2005/PMCS/437 DATED 16.11.2009. The Council vide letter dated 10.12.2009 and 22.01.2010 requested the College authorities to sent their willingness to carry out the inspection. The Dean vide his letter dated 29.01.2010 requested the Council to conduct the inspection by the end of April, 2010. Accordingly, an inspection for Establishment of Medical College at Puducherry by Puducherry Medical College Society (Government of Puducherry) was carried out by the Council Inspectors on 10th and 11th May, 2010 and the inspection reports were considered by the Executive Committee at its meeting held on 12th and 13th May, 2010. After considering the Inspection Reports in detail, the Executive Committee of the Council decided to return the application to the Central Government recommending disapproval of the Scheme for establishment of new medical college at Puducherry by Puducherry Medical College Society (Government of Puducherry) under Section 10 A of the Act. The above decision of the Executive Committee was communicated to the Central Government vide Council letter dated 14.05.2010. By that time, after promulgation of Ordinance No: 2 of 2010 dated 15.05.2010 issued by the Hon'ble President of India, the Board of Governors superseded the Council and the decisions of the Executive Committee pursuant to its meeting on 12th and 13th May, 2010 with regard to establishment of new medical colleges / renewal of permission (increase of seats and establishment) and recognition of the college under Section 11 (2) were reviewed / re-examined by the Board of Governors. Accordingly, assessment has been carried out by the Council Assessors on 21st and 22nd June, 2010. After considering the assessment report, the Board of Governors decided to return the application as disapproved for establishment of new medical college at Puducherry by the Puducherry Medical Society (Government of Puducherry Institute). This decision was communicated to the college authorities with copy to the other concerned authorities as well as Central Government vide letter dated 15.07.2010. Therefore, pointing out that there are many deficiencies in petitioner's case, the respondents prayed for dismissal of the writ petition.
16. Mr. Vijay Narayan, learned Senior counsel appearing for the petitioner has vehemently contended that the petitioner institute, with an avowed object of starting a medical college so as to cater to the needs of the local people of the Territory of Puducherry particularly the poor and downtrodden submitted an application to the first respondent in the year 2007 and therefore, it should be considered favourably by the first respondent. He would also contend that the deficiencies pointed out by the respondents are minor in nature and that the petitioner had already incurred huge sum of Rs.132 crores on the project and what are all required as per the norms and standards for establishment of a Medical College have already been satisfied by the petitioner and that aspect has not been taken into account for consideration of the application in a true spirit as contemplated under Section 10 A of the Act. He would also add that Council of Assessors conducted inspection and has pointed out certain deficiencies which the petitioner has now satisfied in entirety and, therefore, the application made by the petitioner has to be taken into account as there is no lapse on the part of the petitioner. Yet another contention raised by the learned senior counsel appearing for the petitioner is that under proviso to Sub Section 4 of Section 10 A of the Act, it is mandatory on the part of the respondents to see that no scheme shall be disapproved by the Central Government except after giving the person or college concerned a reasonable opportunity of being heard. He pointed out that after the promulgation of the ordinance, the entire power has been given to the 1st respondent namely the Medical Council of India and now it is the 1st respondent alone who is competent to look into the matter and the impugned order of communication was issued only on 15th July, 2010 and it was communicated to the petitioner only on 19th July, 2010. Therefore, it is the case of the petitioner that no opportunity was given to them before disapproving the scheme thereby there is clear violation of the principles of natural justice.
17. On the other hand, Mr. V.P. Raman, learned counsel appearing for the Medical Council of India would strenuously contend that after the promulgation of the Ordinance a duty is cast upon them and hence, taking serious note of the various circumstances much importance was given for proper assessment of the institutions in order to maintain the standard in medical education and therefore, the various deficiencies pointed out by them under the impugned communication should be strictly complied with. He would also contend that there is no fault on the part of the Council of Assessors and the deficiencies pointed out in the impugned communication would only speak about the inadequate facilities available at the petitioner institution. He would further submit that if it is a case of re-inspection, it has to be done before the statutory time fixed by the Hon'ble Supreme Court i.e. 30th September, 2010 and as the last date for getting approval is 15.07.2010 and therefore, there is no possibility of considering anything beyond that date.
18. I have heard the learned counsel on either side and perused the various material documents and analysed the relevant provision of law.
19. An overall analysis and circumspection of the facts would reveal that there is a chequered history of the petitioner's case starting from the year 2007. The Government of Puducherry, with a vision to establish a centre for excellence in teaching, research and patient care amongst the best in the country on par with AIMS, New Delhi or PGIMER, Chandigarh, had announced in the Assembly on 7th July, 2004 that it had decided to establish a Government Medical College. Initially the application was made in the name of the Director Perunthalaivar Kamaraj Medical College and Research Institute, Puducherry, but later it was named as Indira Gandhi Medical College and Research Institute. The application was made to the 1st respondent on 14th August, 2007 and it is not in dispute that the application was under process. Thereafter, after certain request for adjournment, inspection had been carried out and various stages have been crossed. Finally, petitioner made an application on 29.01.2010 requesting the Council to conduct inspection by the end of April 2010. Accordingly, the inspection for Establishment of Medical College at Puducherry in the name of Indira Gandhi Medical College and Research Institute under Section 10 A of the Act was carried out by the Council Inspectors on 10th and 11th May, 2010. The Inspection Report was considered by the Executive Committee at its meeting held on 12th and 13th May, 2010.
20. It is seen that in the meantime, by promulgation of the Ordinance No: 2 of 2010 dated 15.05.2010 by the President of India, the Board of Governors superseded the Council and the decisions held in the Executive Committee meeting on 12th and 13th May, 2010 with regard to establishment of new medical colleges / renewal of permission ( increase of seats and establishment ) and recognition of the college under Section 11 (2) were reviewed / re-examined by the Board of Governors. Thereafter, assessment was carried out by the Council Assessors on 21st and 22nd June, 2010 and the assessment report was considered by the Board of Governors and it was decided to return the application as disapproved for the establishment of a new medical college at Puducherry by Puducherry Medical College Society. The deficiencies pointed out in the impugned order are :
" I. Infrastructural facilities are inadequate as noted below :
a. The Central Library has a total area of 566 sq. mt. against the required area of 1600 sq. mt.
b. Construction of separate library block with 2400 sq. mt. is under progress only. c. The hostels are not furnished and the construction is still ongoing for further accommodation. d. There is no provision for a mess.
e. Residential quarters are yet to be constructed.
f. No static x-ray unit is available as against the requirement of minimum of 2 static units. g. In certain areas of the main building of the college & hospital, the civil as well as electric work still needs to be completed. The area around the building is not properly landscaped and no roads have been laid down.
II. Clinical material is grossly inadequate as noted below:
a. The Bed occupancy is only 74 and 71% on the days of assessment (21st 22nd June, 2010) as against the requirement of minimum of 80%. b. There were no patient admitted in any of the ICUs on the days of assessment. c. The number of major surgical operations were Nill on the days of assessment. d. There was only one delivery & no caesarian section on the days of assessment. e. Only 129 Nursing staff are available as against the requirement of 175. IV.Other deficiencies pointed out in the assessment report."
The Compliance report made by the petitioner institute is as follows:
(i) As per the statement, indicating year-wise targets to be achieved by applicant of a new medical college admitting 150 students under Section 10A of the I.M.C. Act, the year-wise targets are given except the central library of 2400 sq.mts. In fact, the total number of books required is 11000 out of which 3000 are for first year and 5000 during second year, 7000 during third year, 9000 in the fourth year and 11000 during final and fifth year. Similarly the journal requirement is 100 (both Indian and Foreign) the first year requirement is 20, second year requirement is 40, and third year requirement is 60 fourth year requirement is 80 and in the final year 100. According to the petitioner, the central library requirement of 2400 sq.mt. is not necessary during the first year hence the present available area of 566 sq.mt. is proportionate to the first year. Even the inspection report has pointed out that separate library block with 2400 sq.mt. is under progress only and it is informed that it would be completed in another six months.
(ii) Regarding the report that the hostels are not furnished and the construction is still going on for further accommodation, it is stated by the petitioner that the hostels were not furnished at the time of inspection, since the first batch of students are due to be admitted in the month of August and September 2010. Now the hostels are furnished fully. The two hostels which are required for the first year are fully furnished and construction work is over and the other two hostels are almost over and these two hostels are required for the second, third and fourth year only and which will be completed in another two months. Hence there is no shortage of hostel space for the initial first year admission.
(iii) The further deficiency pointed out is that there is no provision for a mess. In this regard the explanation submitted is that the first batch of students are due to be admitted in August and September 2010, provision has now been made for the mess. Regarding the other deficiency that residential quarters are yet to be constructed, at page No. 6 of inspection report, it is stated that 32 bath attached rooms are to be constructed within the campus at a distance of 0.5 km to the college for the teaching faculty and non teaching staff and this work will be completed in another two months.
(iv) It is submitted that the institute is paying 20% house rent allowance and many of the staff are from Puducherry who are having their own houses and may not prefer residential accommodation in the campus. Even if it is necessary for the teaching and non teaching staff, the Government of Puducherry will allot quarters to them from the general pool of Government quarters available at Lawspet.
(v) Regarding the inadequacy of Static x-ray unit as against the requirement of minimum of 2 static unit, the petitioner had explained that as per the year-wise requirements two static x-ray machines (300 ma and 500 ma) should be available. As per page 11 of the inspection report, the inspectors have already stated that supply order has been placed for the two static units of 500 ma each which is more than the requirement and it is informed that even though one mobile x-ray machine of 30 ma is required two mobile x-ray 60 ma machines are available which are more than the requirement. As regards the deficiency that in certain areas of the main building of the college and hospital, the civil as well as electrical work still needs to be completed and the area around the building is not property landscaped and no roads have been laid down is concerned, it is explained that the total construction plan for the college and hospital building is ground plus 4 stories but for the first year the requirement is Ground plus 1 storey and for this the civil and electrical work has been completed. Further work is only for the subsequent years. The landscaping and laying of roads is under fast progress.
(vi) In respect of the deficiency pointed out that Clinical material is grossly inadequate namely the Bed occupancy is only 74 and 71% on the days of assessment (21st and 22nd July 2010) as against the requirement of minimum 80%, the petitioners explanation is as per the minimum standard requirement for a medical college vide para B-1.8 the indoor beds occupancy shall be a minimum of 80% per annum and this has been amended as 70% for the first year vide amendment notification No. MCI.34(41)/2009-Med./20072 dated 08.07.2009 and as per the year-wise target also it is 70% for the first year vide Sl.No.41 and 80% for second year onwards. As regards the point raised that there were no patients admitted in any of the ICUs on the days of assessment, it is stated that on the day of assessment or on the previous day there were no serious cases or acute cases which required intensive care which came to the hospital and hence there was no ICU admission on the days of assessment. It was reported that the number of major surgical operations were Nil on the days of assessment for which the petitioners explanation is as per the hospital inpatients case history, no cases required major surgical operations and on the days of inspection all the faculty were required for physical and certificate verification by the inspectors and hence no major surgical operations were fixed on the days of assessment. In respect of the report that there was only one delivery and no caesarean section on the days of assessment, it is submitted that since there was no necessity for caesarean it was not done on the days of assessment and for the complaint that only 129 Nursing staff are available as against the requirement of 175, the explanation is as of now 175 nursing staff are available as per the requirement. As per the inspection report of the inspectors, there are no other deficiencies pointed out in the assessment report except the above. In fact as per pages 20 to 22 of the assessment report, there are 30 excess faculties which include Asst. Professor, Associate Professor and Professor when the country is facing acute shortage of faculties. In fact these faculties have been recruited to meet the need of next renewal inspection.
21. Therefore, in view of the Government of India's letter dated 15.03.2005, which was issued after the directions of the Hon'ble Supreme Court to strictly adhere to the time schedule prescribed under the regulations and as per the Schedule prescribed in the Establishment of Medical College Regulations, 1999, the last date for sending the recommendations of the Medical Council of India for grant of Letter of Permission to the Central Government being 15th May, the Executive Committee of the Council decided to return the application to the Central Government recommending disapproval of the scheme for establishment of a new medical college at Puducherry by Puducherry Medical College Society.
22. An analysis of the entire factual circumstances leading to the case coupled with a perusal of the impugned communication would reveal that the disapproval decision taken by the respondent for the deficiencies pointed out by the Council Assessors' report has to be made only in accordance with law and it is a mandatory requirement to be done in compliance of the Provisions of the Act.
23. Petitioner has explained to the respondent about the compliance of the deficiencies and has also now produced documents in support of the submission that the deficiencies pointed out by the respondents are fully complied with except minor things which they would complete within a short span of time. Therefore, in the above circumstances the only question that arises for consideration is whether the impugned communication has been passed in accordance with law or not. It is put forth by the learned Senior counsel appearing for the petitioner that the mandatory provisions under Section 10 A of the Act have to be adhered to by the respondent while considering the application for approval. Under proviso to Section 4 of Section 10 A of the Act, the competent authority, while considering the scheme of approval, has to provide an opportunity to the petitioner and then only it can take a decision either to approve or disapprove the scheme. In this case, it is not shown to this Court that there was compliance of the provisions of Section 4 of Section 10 A of the Act and therefore, there is a clear violation of the principles of natural justice and the impugned order is passed with total non-application of mind and thus it suffers from legal infirmity.
24. The Government of Puducherry, after announcement in the assembly, formed a State Agency to establish a medical college with a prime aim to provide medical education to the people of that State. Having spent about Rs.132.00 crores and also satisfied with the requirements as per the provisions of the Act, their aim shall not be frustrated by pointing out certain minor deficiencies, which they undertake to comply within a timeframe. Such an avowed object shall be a part of the policy of the Central and State Governments and the agencies established thereunder, including the Medical Council of India.
25. Therefore, in my considered view, the impugned communication suffers from legal infirmity as there was no opportunity of hearing given to the petitioner as contemplated under proviso to clause (4) of Section 10(A) of the Act, which is a cardinal principle and settled legal position, would certainly prejudice the right of the petitioner. Hence, the impugned communication cannot be sustained and it is accordingly set aside. The matter is remanded back to the 1st respondent for fresh consideration by conducting a re-inspection within a period of 10 days from the date of receipt of a copy of this order. After conducting such re-inspection, the respondent may take a decision, taking note of the interest of the Government of Puducherry as well as the people of that region and pass appropriate orders within a period of one (1) week thereafter.
The writ petition is allowed with the above direction. No costs. Consequently, connected Miscellaneous Petition is closed.
gp Note : Operative portion of the order shall be communicated by wire at the cost of the petitioner