Sikkim Manipal University And Anr vs Union Of India And Ors on 25 May, 2016

[Cites 20, Cited by 2]

Sikkim High Court

Sikkim Manipal University And Anr vs Union Of India And Ors on 25 May, 2016

1. The genesis of this Writ petition lies in the act of the Respondent No.2 in not recommending recognition for four Post- Graduate disciplines, offered by the Petitioner No.2, being MD WP(C) No.24 of 2015 3 Sikkim Manipal University and Another vs. Union of India and Others (General Medicine), MD (Paediatrics), MS (ENT) and MD (Psychiatry) and the act of the Respondent No.2, according to the Petitioners being arbitrary, without factual basis and in contravention of Orders passed by this Court. Hence, the Petitioners seek the following reliefs:-

[A] Direct and hold that the deficiencies specified in communications dated 09-07-2015, 14-07-2015, 26-08- 2015, 27-08-2015 and 11-09-2015 (as specified in paragraph 35I) are either non-existent or stand complied with, and direct that recognition be accorded in terms of Section 11 of the Indian Medical Council Act, to the following courses: MD (General Medicine), MD (Paediatric), MS (ENT) and MD (Psychiatry);

[B] In the alternative to [A] above, direct that a fresh time bound inspection be conducted either by an independent expert committee, or by the MCI designated assessors along with eminent independent observers, and such inspection be limited to the deficiencies already pointed out and enlisted and in respect of which compliance has been forwarded by the Petitioner vide letters dated 06-08- 2015 (in respect of MS - ENT), 05-10-2015 (in respect of MD - Paediatrics) [sic], 05-10-2015 (in respect of MD - Paediatrics), 05-10-2015 (in respect of MD - Psychiatry) and that pursuant to such inspection a final decision be taken by the Respondent No.2 in a time bound manner; [C] Confirm the admissions made in the above-said courses in the academic year 2015-16; and [D] Pass any order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case as well as in the interest of justice.

2. The Petitioner No.2 is a Constituent Unit of the Sikkim Manipal University of Health, Medical and Technological Sciences, which commenced in 1999, in collaboration with and as a Joint Venture Undertaking between the Government of Sikkim and the Manipal Education and Medical Group. As per the requirement of Section 10A of the Indian Medical Council Act, 1956 (for short "the WP(C) No.24 of 2015 4 Sikkim Manipal University and Another vs. Union of India and Others Act of 1956"), the Petitioner No.2 applied for grant of permission to start a Medical College with 150 Annual Admissions, to the First Year MBBS Course and established a five hundred bedded Hospital, the "Central Referral Hospital (CRH)" at 5th Mile, Tadong, Sikkim. Vide letter dated 20-08-1999 [Annexure P-4], the Government permitted Specialists/Consultants of the Government STNM Hospital, to associate/work, on part time basis in the Petitioner-College, duly reiterated by letter dated 08-05-2003, [Annexure P-5]. As clinical material was insufficient for teaching and training students due to reasons endemic to this area, the State Government vide letter dated 26-03-2001, [Annexure P-2] permitted the Petitioner No.2 to utilise facilities of its three hundred bedded STNM District Hospital at Gangtok and other peripheral Hospitals, in the East District, with total administrative control of beds and patients, reiterating it vide Notification dated 15-03-2004, [Annexure P-3].

3. That having been said, the MBBS Course is not the subject-matter of this dispute and, therefore, is not being delved into in detail, however, the Petitioner in an effort to highlight the conduct of the Respondent No.2 has averred that despite being aware of the above arrangement the Respondent has at various points during inspection, attempted to exclude all of the facilities available at STNM Hospital resulting in litigation between the Petitioners and the MCI.

WP(C) No.24 of 2015 5

Sikkim Manipal University and Another vs. Union of India and Others

4. By a Judgment dated 27-04-2012 of this Court in WP(C) No.37 of 2011 in a matter pertaining to the MBBS Course the Respondent No.2 was, inter alia, directed to take note of the infrastructural facilities, clinical material, OPD Attendance of STNM Hospital, Medical Officers, Specialists, Super Specialists, Residents working in the Government Hospital and associated with the teaching/training programmes of students of the Petitioner No.2, when assessment was made by its Inspection Team, in view of the fact that it was a joint venture between the Government of Sikkim and the Petitioners and as confirmed by communication of the Government of Sikkim in this regard. Against this Judgment, an SLP was preferred by the Respondent No.2 herein, which is pending before the Hon'ble Apex Court, to which, however, no stay has been granted.

5. The First Batch of Post-Graduate students were admitted in 2011-12, after obtaining necessary permission from the concerned authorities in seven different specialisations, following inspection, for two seats each, with a duration of three years each, being MD (General Medicine), MD (Paediatrics), MD/MS (OBG), MS (ENT), MD (Pharmacology), MD (Community Medicine) and MD (Biochemistry). This batch was to graduate in 2014.

6. The present Writ Petition is confined to four disciplines in terms of the prayer of the Petitioner, viz., (i) MD (General WP(C) No.24 of 2015 6 Sikkim Manipal University and Another vs. Union of India and Others Medicine), (ii) MD (Paediatrics), (iii) MS (ENT) and (iv) MD (Psychiatry) for which an inspection took place in the month of April, 2014, for grant of regular recognition in terms of Section 11(2) of the Act of 1956. These reports were reviewed by the Post- Graduate Medical Education Committee (for short "PGMEC") and separate communications were sent to the Petitioner for each of the MD/MS degree specialisation, in some cases pointing out deficiencies, in others seeking further clarification.

7. That, in the case of MD (Biochemistry) and MS/MD (OBG), recognition was granted hence these disciplines are not the subject-matter of the present Writ Petition. For MD (Pharmacology) and MD (Community Medicine) although Compliance Verification Assessment was conducted, no communication has yet been received.

8. The facts confined to the communication assailed in this Writ Petition are briefly adumbrated below;

9. That insofar as MS (ENT) is concerned, the communication dated 09-07-2015 (Annexure P42) was issued after consideration of the Petitioner's Compliance Report and simply contained a verbatim repetition of the deficiencies that had been pointed out by the Respondent No.2, at the earlier inspection with which the petitioner had already complied and submitted a Compliance Report. No compliance verification was done. In the WP(C) No.24 of 2015 7 Sikkim Manipal University and Another vs. Union of India and Others communication dated 14-07-2015 (Annexure P42), the deficiencies pointed out were at variance with those listed in the communication dated 09-07-2015 and contained irrelevant points, such as investigative workload for Mammography, which has no relation to the MS (ENT) course. The Petitioner has pointed out these facts in a communication dated 06-08-2015 [Annexure P43], after which inspection was carried out on 26-02-2016 of which no communication has been made to the Petitioners. By filing I.A. No.02 of 2016 on 03-05-2016, the Petitioner submitted that the Petitioner filed a copy of the MCI communication dated 30-06-2016 in which the Respondent No.2 communicated to the Petitioners that the PGMEC considered the Compliance Verification Assessment of 26-02-2016 in its meeting held on 23-03-2016 and they listed ten deficiencies requiring them to rectify the said deficiencies within four weeks. The Petitioners responded vide communication dated 27-04-2016 setting out their position in the matter.

10. With regard to the MD (General Medicine) Course, pursuant to the compliance verification assessment conducted in June, 2015, the Petitioner received a communication dated 26-08- 2015 from Respondent No.2, in which certain deficiencies were pointed out but the earlier deficiencies were not alluded to suggesting compliance thereof. The Respondent No.2, however, enlisted certain new deficiencies which had not been cited earlier. WP(C) No.24 of 2015 8

Sikkim Manipal University and Another vs. Union of India and Others By its letter dated 05-10-2015, the Petitioner submitted a further compliance report.

11. With regard to the MD (Paediatrics) Course, the Respondent issued a communication dated 11-09-2015 once again pointing out certain deficiencies. On 05-10-2015, the Petitioner submitted its compliance report in reply thereto. One of the deficiencies in fact related to the error of the assessor in submitting the information in the wrong format, for which the Petitioner cannot be faulted, and should cause no prejudice, either to the Petitioner or to the students.

12. Meanwhile, with regard to recognition for MD (Psychiatry) Course, pursuant to an inspection conducted in April, 2015, the Petitioner received a communication for the first time from the Respondent No.2, dated 27-08-2015 informing it that the PGMEC had decided not to recommend grant of recognition for the said Course on the grounds of certain deficiencies. The Petitioner has submitted its compliance report in response thereto on 05-10- 2015.

13. It is the Petitioners case that on the one hand the Respondent No.2 has failed to take into account previous Compliance Reports while arriving at a pre-meditated conclusion/ view and on the other hand, is seeking to endlessly protract the WP(C) No.24 of 2015 9 Sikkim Manipal University and Another vs. Union of India and Others process of recognition by seeking fresh Compliance Reports for deficiencies that do not exist. Moreover, if facilities at STNM Hospital be annexed as per the binding Judgment of this Court then the deficiencies as alleged would not exist.

14. That, subsequent to the filing of the instant Writ Petition on 06-05-2015, the Petitioner-College received communication dated 14-05-2015 (Annexure P-38), from the Respondent No.2, pertaining to the MBBS Course. By way of this communication, relying on Clause 8(3)(1)(c) of Establishment of Medical College Regulation it was, inter alia, informed that the MCI had decided not to consider the Institution for processing applications for the Post-Graduate Courses in the current Academic Year 2015-16 and to issue Show Cause Notice as to why the recommendation for withdrawal of recognition granted under Section 11(2) of the Act of 1956, for MBBS and Post-Graduate Courses should not be made, along with direction of stoppage of admissions in permitted Post-Graduate Courses.

15. This communication dated 14-05-2015 along with Assessment Report dated 30-03-2015 were challenged in WP(C) No.30 of 2015 before this Court. By way of abundant caution CM Appl No.127 of 2015 was also filed in this Writ Petition, i.e., WP(C) No.24 of 2015, in relation to the communication pertaining to Post-Graduate Courses, made in the same letter. Vide interim Order dated 26-05- WP(C) No.24 of 2015 10 Sikkim Manipal University and Another vs. Union of India and Others 2015 in WP(C) No.30 of 2015 in CM Appl No.128 of 2015, the operation of the communications dated 30-03-2015 and 14-05-2015 were stayed. This was assailed by the Respondent No.2 before the Hon'ble Apex Court which by an Order dated 10-06-2015 observed that it would be subject to the outcome of the Writ Petition. A final Judgment was rendered on 07-10-2015 by this Court in WP(C) No.30 of 2015, quashing the communication dated 14-05-2015 of the Respondent No.2, which has also been assailed before the Hon'ble Apex Court.

16. The Respondent No.1, Ministry of Health & Family Welfare, chose not to file its counter-affidavit.

17. The Respondent No.2 while resisting the stance of the Petitioner-College and relying on the decision of the Hon'ble Apex Court in State of Kerala vs. Kumari T. P. Roshana and Another1 asserted its position as an expert body, constituted under the provisions of the Act of 1956, to discharge the duty of maintaining the highest standards of medical education, to regulate their observance and supervise minimum standards of medical education. That, this observation of the Hon'ble Apex Court was reiterated in Medical Council of India vs. State of Karnataka and Others2 and Dr. Preeti Srivastava and Another vs. The State of M. P. and Others3.

1. (1979) 1 SCC 572

2. (1998) 6 SCC 131

3. (1999) 7 SCC 120 WP(C) No.24 of 2015 11 Sikkim Manipal University and Another vs. Union of India and Others

18. With regard to non-recognition of the Post-Graduate Courses being to (i) MD (General Medicine), (ii) MD (Paediatrics), (iii) MS (ENT) and (iv) MD (Psychiatry), it was, inter alia, submitted that on deficiencies being found for each of the disciplines on physical assessment carried out, the Petitioner No.2 was required to rectify the deficiencies which were communicated to the Petitioners. It is not controverted that communication has since been received from the Petitioner No.2 informing that deficiencies for the MD/MS Courses have been rectified, viz., for MS (ENT) vide correspondence dated 06-08-2015 and for the other three Courses, i.e., MD (General Medicine), MD (Paediatrics) and MD (Psychiatry), vide correspondence dated 05-10-2015. It is reiterated that the recognition in respect of Post-Graduate Courses can only be granted once the Medical College fulfils the requirement laid down in the MCI Regulations. In fact during the interregnum, the minimum requirements for Post-Graduate Courses in MD (OBG), MD (Pharmacology) and MD (Community Medicine) having been made by the Petitioner-College, recognition has been recommended by the Respondent No.2 to the Central Government. That in the case of MD (General Medicine), MD (Psychiatry), MD (Paediatrics) and MS (ENT), despite repeated opportunities the Petitioner-College has failed to rectify the deficiencies. It is averred that the Writ Petition is WP(C) No.24 of 2015 12 Sikkim Manipal University and Another vs. Union of India and Others premature as the Central Government has not reached a final decision, with regard to the above Courses.

19. That, it is settled Law that in case of any conflict between the MCI Act/Regulations which are statutory, and any State Rule/Regulations, the MCI Act/Regulations shall prevail and are binding and mandatory on all concerned Universities, Colleges conducting Medicine Courses. While explaining its duties and the mandate of Law, the Respondent No.2, inter alia, averred that a Medical Institution is required to make an application under Section 11(2) of the Act of 1956, for recognition of higher qualification and for this the MCI conducts inspection for consideration and grant of recognition to any Post-Graduate Course. It is the case of the Respondent No.2 that, the Government of India, over and above the MCI Regulations, vide its policy decision dated 09-05-2000 allowed new Medical Colleges to utilise clinical material of Government/ District Hospitals, for a period of three years on the condition that the Government Hospital would be in total administrative control of College Authorities and would be within 5 kms. of the College with facilities. In the meanwhile, the Private Colleges were to take necessary steps to provide the requisite clinical material in their own Hospital but in the instant matter the State Government has permitted the Petitioner-College not only use of the facilities of STNM Hospital for clinical material but also the use of Specialists, WP(C) No.24 of 2015 13 Sikkim Manipal University and Another vs. Union of India and Others Medical Officers, teaching faculty, etc., on part time basis. MCI Regulations, however, require the teaching faculty to be a full time faculty, over and above which the Respondent No.2 does not exercise administrative control over the STNM Hospital as required.

20. The deficiencies in the Petitioner- College attracts Clause (b) of the Proviso to Regulation 8(1) of the Establishment of Medical College Regulations, 1999, which stipulates that during any regular inspection of the Institute, if, the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is less than 70%, such an institute will not be considered for renewal of permission in that Academic Year.

21. According to a new policy decision dated 26-03-2007 the Central Government took into consideration the special circumstances of the North-Eastern States, hilly and tribal areas and extended permission to the Private Medical Colleges situated therein, to utilise the facilities of Government and District Hospitals for clinical material, from the date of permission, for establishment of a new medical college, for ten years. This was subject to beds being available in the Government Hospitals which would be earmarked for utilisation by teaching faculty and the control of the patients would be with teaching faculty of the Medical Colleges and utilisation would be as per MCI Regulations. The MCI vide letter dated 18-04-2007 lodged a strong protest with the Government of WP(C) No.24 of 2015 14 Sikkim Manipal University and Another vs. Union of India and Others India expressing its concern of having inadequately trained students. Regardless of this, the Respondent No.1 accepted the undertaking furnished by the Petitioner No.2 and recognised the qualification granted by the Petitioner-College to 50 MBBS students vide communication dated 11-05-2007.

22. With regard to grant of recognition for MBBS courses and increased intake of students, reference was made to the Writ Petitions filed before this Court in this regard, being WP(C) No.37 of 2011, WP(C) No.34 of 2004 and WP(C) No.30 of 2015, the subject- matter of which, however, are not being dealt with in detail for obvious reasons.

23. The Respondent No.3 did not file an amended counter- affidavit subsequent to the amended Writ Petition being filed by the Petitioners, but has merely reiterated in its counter-affidavit the stand of the Petitioners and stated, that, the State of Sikkim has agreed to and permitted the Sikkim Manipal University to utilise the facilities of the STNM Hospital and peripheral Hospitals of East District of Sikkim, for teaching faculty, clinical material and infrastructure. This is being done in pursuance to Notification bearing No.46 HC-HS & FW dated 24-02-2012. That the Respondent No.2 be directed to inspect and include the teaching facilities and infrastructure available at the STNM Hospital as per the WP(C) No.24 of 2015 15 Sikkim Manipal University and Another vs. Union of India and Others arrangement made between the parties vide Notification dated 24- 02-2012 (supra).

24. By filing I.A. No.2 of 2015, intervenors, namely, Dr. Santosh Kumar Kesari and Dr. Sumita Tamang, sought to be impleaded and were allowed as Intervenors on no objection being raised by other parties, vide Order dated 04-10-2015.

25. Advancing his arguments before this Court, Learned Senior Counsel Mr. Gopal Subramaniam while reiterating the facts as made out in the Petition, walked this Court in detail through the correspondence between the Petitioner No.2 and the Respondent No.2 prior to the impugned communication, being the history and the chain of events leading to the filing of the present Writ Petition. It was contended that the present Petition discloses an abject state of affairs requiring the intervention of this Court to swiftly and clearly arrest an ongoing attempt to prevent medical education being imparted in the State of Sikkim and much worse, to demoralise doctors who are practising in the State. That the MCI although aware of the arrangement between the State of Sikkim and the Petitioners has at various points attempted to exclude the facilities at the STNM Hospital, resulting in several litigations between the Petitioners and the MCI. That, this Court in WP(C) No.37 of 2011 decided on 27-04-2012 concluded that the MCI could not and ought not to have excluded the STNM Hospital for the WP(C) No.24 of 2015 16 Sikkim Manipal University and Another vs. Union of India and Others purpose of arriving at any rational consideration or for reckoning deficiencies.

26. Learned Counsel recapitulated that in 2011-12 the first Post-Graduate students were admitted in seven specialisations after permission was granted in terms of Section 10A of the Act of 1956, such permission having been preceded by an inspection, issuance of letters of intent or letter of conditional permission, acceptance of the conditions and permission thereof, to commence the Courses. While explaining the scheme of Section 10A(1)(b)(ii), 10A(2)(a), 10A(3), 10A(4) and 10A(7), it was expostulated that the Central Government/Council was satisfied that the factors laid down in Section 10A(7) were duly complied with. The scheme of Section 11 of the Act of 1956, which deals with recognition of medical qualifications granted by Universities or Medical Institutions in India and Regulation 6(2) as substituted by Notification published on 21-07-2009 which specifies the point on which the Institution is to apply for recognition were also discussed in depth by Learned Senior Counsel. Consequently, for MD (Paediatrics), MD (General Medicine) and MS (ENT), the first batch was due to sit for its final examination in April, 2014, therefore, the Petitioner-College had applied for recognition of these Courses in January, 2014 itself. The inspection at the time of recognition is to be done in terms of Section 17 of the Act, allowing the MCI as per Section 20(1) to prescribe standards of WP(C) No.24 of 2015 17 Sikkim Manipal University and Another vs. Union of India and Others Post-Graduate Medical Education in exercise of which power read with Section 33 of the Act of 1956 the MCI has framed the Medical Council of India Post-Graduate Medical Education Regulations, 2000. That in the backdrop of the said Regulations, the MCI/Central Government must take a decision on recognising the medical qualifications in the four Post-Graduate disciplines.

27. Inviting the attention of this Court to a catena of decisions of the Hon'ble Apex Court it was conceded that the Council has the power to prescribe the minimum standards of medical education but that it is incumbent on them to exercise the powers for the betterment of the Health Sector and development of quality Educational Institute.

28. That, the Hon'ble Apex Court in Dental Council of India vs. Subharti K.K.B. Charitable Trust and Another4 warned against arbitrary exercise of powers by bodies, such as the MCI for ulterior motive which would warrant intervention by the Courts. That, as regards exercise of discretion by administrative authorities, attention was drawn to the decision in Bangalore Medical Trust vs. B. S. Muddappa and Others5. It was also pointed out that in Indian Railway Construction Co. Ltd. vs. Ajay Kumar6, the Hon'ble Apex Court, inter alia, held that, the Court will be slow to interfere in matters relating to administrative functions unless the decision is

4. (2001) 5 SCC 486 5. (1991) 4 SCC 54 6. (2003) 4 SCC 579 WP(C) No.24 of 2015 18 Sikkim Manipal University and Another vs. Union of India and Others tainted by illegality, irrationality and procedural impropriety. Reference was also made to the Ninety-Second Report of the Department-Related Parliamentary Standing Committee on Health and Welfare on the functioning of the MCI, presented on 08-03-2016, highlighting the glaring institutional failures that afflict the MCI, contending thereby that the Petitioners' grievances regarding the functioning of the MCI are not in vacuum but part of a larger malaise. Reference was also made to the observation in Mridul Dhar (Minor) and Another vs. Union of India and Others7 wherein the Hon'ble Apex Court while dealing with the questions of medical education and being aware of the continuous complaints against MCI/DCI observed that the suggestion made about constituting a body like ombudsman, to which the MCI may be answerable, deserves to be examined in depth by the Ministry of Health and a Report submitted to the Court. It was also put forth that the Hon'ble Apex Court has held in Rajiv Memorial Academic Welfare Society and Others vs. Union of India and Others8 that, when the MCI's action are contrary to Law there is no need for another inspection and directions could be given by the High Court itself for grant of permission.

29. It was vehemently put forth that if the deficiencies are in a narrow compass and there is substantial compliance with the

7. (2005) 2 SCC 65 8. Civil Appeal No.7953 of 2015 dated 24-09-2015 [MANU/SC/1573/2015] WP(C) No.24 of 2015 19 Sikkim Manipal University and Another vs. Union of India and Others norms no purpose would be served by directing re-inspection by the MCI and the Court ought to satisfy itself about the compliance and issue a direction to the Union of India to grant recognition in terms of Section 11, as held by the Hon'ble Apex Court in Rajiv Memorial Academic Welfare Society8.

30. Hence, in conclusion, it is submitted that there being no stay of the Judgment dated 07-10-2015 in WP(C) No.30 of 2015 this Petition must proceed on the premise that there are no deficiencies with respect to the Undergraduate Programme thus this Court quash all Reports of MCI and direct the Central Government to recognise the Post-Graduate Qualification in the above four Courses being MS/ MD (ENT), MD (Psychiatry), MD (General Medicine) and MD (Paediatrics), consequent to which the Petitioners may be permitted to admit students to such Courses in the second counselling that takes place prior to the commencement of Post-Graduate Courses in May, 2016.

31. Per contra, Learned Counsel for the Respondent No.2 while reiterating the averments made in its Counter-Affidavit canvassed the argument that the Hon'ble Supreme Apex Court has been pleased to lay down in Dr. Narayan Sharma and Another vs. Dr. Pankaj Kr. Lehkar and Others9 at Paragraph 24 that there cannot be any realisation/dilution of standards in Post-Graduate Courses and

9. (2000) 1 SCC 44 WP(C) No.24 of 2015 20 Sikkim Manipal University and Another vs. Union of India and Others also reiterated the binding character of the Post-Graduate Regulations of the MCI. That the Post-Graduate Medical Regulations, 2000, stipulates that every Institution/Medical College, intending to start a Post-Graduate Medical Course or increase in admission capacity in various Post-Graduate Courses has to mandatorily fulfil all requirements of Undergraduate Courses at the time of submission of their applications/scheme. While drawing the attention of this Court to Section 20(1), 20(2), 20(3) of the Act of 1956, it was urged that Section 20(5) of the Act of 1956 provides that the views and recommendations of the PGMEC on all matters shall be placed before the Council and if the Council does not agree with the views expressed or the recommendations made by the Committee, the Council shall forward them together with its observations to the Central Government for decision.

32. With regard to MD (Paediatrics) although the Petitioner vide its letter dated 05-10-2015, submitted its compliance, in view of the deficiencies pointed out, the Committee noted that the compliance was not satisfactory and asked the Petitioner-College to submit further compliance vide its letter dated 09-03-2016 as the earlier deficiencies had not been complied with.

33. With regard to MS (ENT), it was contended that after a series of correspondence continued between the parties on account of deficiencies found by the PGMEC on consideration of Assessment WP(C) No.24 of 2015 21 Sikkim Manipal University and Another vs. Union of India and Others Reports of the Petitioner-College, the Committee after going through three Assessment Reports of April, 2014, February, 2015 and compliance of 06-08-2015 has decided to verify compliance by way of assessment.

34. On the question of MD (General Medicine) it was held that after deficiencies were pointed out the Petitioner vide letter dated 30-04-2015 submitted its compliance, further Compliance Report was sought by the Committee which was submitted on 05-10- 2015. The Committee on going through the compliance report found deficiencies, noted that compliance was not satisfactory and asked the Petitioner college to submit compliance vide its communication dated 09-03-2016.

35. That with regard to MD (Psychiatry) the Petitioner College rectified its deficiencies and vide letter dated 05-10-2015 submitted its compliance. That on 15-02-2016 the Post-Graduate Sub-Committee on going through the Assessment Reports of April, 2015 and Assessors remarks of 04-09-2015 and 05-10-2015 decided to verify compliance by way of assessment.

36. On the question of MD/MS (OBG) it has been decided to recommend qualification for 2 (two) seats granted by the Petitioner No.2. It is urged that the present petition is not maintainable being pre-mature as no final decision has been arrived at by the Central Government, hence, it be dismissed.

WP(C) No.24 of 2015 22

Sikkim Manipal University and Another vs. Union of India and Others

37. The intervenors, on their part, submitted that they are directly concerned with the result of the Writ Petition both having obtained their Post-Graduate Degrees in ENT and Paediatrics respectively from the Petitioner No.2 in the year 2014 as the first batch of 2011 PG, MD/MS Course. That, they completed their MBBS Course from the same University and being satisfied with the quality education imparted by the University, pursued their Post-Graduate Course from the same University. That after years of hard work they have been made to suffer unbearably and unreasonably. It is prayed that this Court pass necessary orders, directions, writs to protect the interest and future of the intervenors in the interest of justice.

38. I have heard the submissions put forth by the Learned Counsel at length and also carefully perused and considered the entire documents relied on by Learned Counsel for the parties.

39. The question thus arising for determination by this Court is -

(a) Whether the Respondent No.2 is justified in recommending non-recognition of the four Post-Graduate Degrees being (i) MD (General Medicine), (ii) MD (Paediatrics), (iii) MS (ENT) and (iv) MD (Psychiatry), on grounds of deficiencies pointed out by it, in light of the Compliance Reports submitted by the Petitioner No.2 rectifying the deficiencies.

40. Before delving into a discussion in this matter, be it noted that this Court in WP(C) No.37 of 2011 vide Judgment WP(C) No.24 of 2015 23 Sikkim Manipal University and Another vs. Union of India and Others delivered on 27-04-2012 while considering the issues therein, inter alia, ordered in Paragraph 65 that -

"(v) The Inspection Team at the time of inspection will take note of the infrastructural facilities, clinical material, OPD attendance of STNM Hospital, Medical Officers, Specialists, Super Specialists, Residents (Senior/Junior) working in the Government Hospital and associated with the teaching/training programmes of students of the Petitioner No.2 College while making the assessment.

(vi) The BOG shall take into consideration the entire set up of Government Hospital (STNM) including its Doctors, Residents, Para Medical Staff, teaching beds, Operation Theatre, clinical material, OPD attendance, etc. treating the STNM/Government Hospital to be an associated Hospital of petitioner No.2 College."

This Judgment was assailed and an SLP preferred by the Respondent No.2 is pending before the Hon'ble Apex Court admittedly no stay has been granted. Although the above Orders pertain to the MBBS Course, it is evident that the same holds good for the purposes of this matter.

41. In the second Writ Petition filed before this Court by the Petitioners being WP(C) No.30 of 2015, the Petitioner prayed for quashing and setting aside letters dated 30-03-2015 and 14-05-2015. The challenge in the said proceedings was in respect of the intake in the Under-Graduate MBBS Course for the year 2014-15 and the recognition already accorded in the year 2007 for 50 seats in the MBBS Course. This Court vide its Judgment dated 07-10-2015, inter WP(C) No.24 of 2015 24 Sikkim Manipal University and Another vs. Union of India and Others alia, set aside the communications dated 30-03-2015 and 14-05-2015 having earlier issued an ad interim ex parte stay on the communications in CM Appl No.128 of 2015 on 25-05-2015. The MCI/BOG was directed to conduct a fresh inspection to be completed within a period of three months, including in its wake the facilities of the STNM Hospital and in terms of the MCI Guidelines for the North-Eastern States, which, inter alia, stipulates bed occupancy of 60%. Needless to add that Respondent No.2 has approached the Hon'ble Apex Court against the decision of this Court in WP(C) No.30 of 2015 as well.

42. I deem it essential to point out that in both the communication viz., 30-03-2015 and 14-05-2015, it was inter alia, communicated that "In view of above (sic), it was decided not to consider the Institute for processing applications for postgraduate Courses in the current Academic year 2015-16 and to issue show cause as to why the recommendation for withdrawal of recognition of the Courses run by that institute should not be made for undergraduate and postgraduate courses which are recognized u/s 11(2) of the IMC Act, 1956 alongwith direction of stoppage of admission in permitted postgraduate Courses."

43. Thus, it follows that the decision in WP(C) No.30 of 2015 while setting aside the communication (supra), also set aside any observations of the Respondent No.2 made in regard to Post- WP(C) No.24 of 2015 25

Sikkim Manipal University and Another vs. Union of India and Others Graduate Courses. Consequently, CM Appl No.127 of 2015 filed in this Writ Petition, in view of the decision in WP(C) No.30 of 2015, the matter has become infructuous.

44. At the outset, it must be clarified that this Court in exercise of its powers of judicial review under Article 226 of the Constitution of India, does not propose to take up the matter as a Court of Appeal, but is concerned only with the illegality, irrationality and procedural impropriety, if any, of the Respondent No.2 and to examine whether it is shorn of bias and mala fides.

45. Having said that while addressing the Issue at hand, it is not the case of the Respondent No.2 that the Petitioners had not made an application under Section 11(2) of the Act of 1956 for recognition of the higher qualification. It is also not the case of Respondent No.2 that inspection was not conducted for consideration of commencing of the said Courses in dispute, in addition to three other courses. The Petitioners' case on the other hand is that the Central Government/Council was satisfied that the factors laid down in Section 10A(7) of the Act of 1956 was duly complied with consequent to which permission was accorded to commence the Post-Graduate Courses.

46. The relevant portion of Section 10A of the Act of 1956 is reproduced below;

WP(C) No.24 of 2015 26

Sikkim Manipal University and Another vs. Union of India and Others "10A. Permission for establishment of new college, new course of study.-(1) 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 the 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."

47. Close on the heels of this provision, Section 10A(7) lays down that the Council while making its recommendations under Clause (b) of Sub-Section (3) and the Central Government while passing an Order either approving or disapproving the scheme under Sub-Section (4) shall have due regard to the factors which have been laid down in (a) to (g) of Section 10A(7), which for brevity are not being reproduced. Section 17 of the Act of 1956 provides for inspection of examination wherein it is, inter alia, held that the Medical Inspectors shall not interfere with the conduct of any training or examination, but shall report to the Committee on the WP(C) No.24 of 2015 27 Sikkim Manipal University and Another vs. Union of India and Others adequacy of the standards of medical education including staff, equipment, accommodation, training and other facilities prescribed for giving medical education or on the sufficiency of every examination which they attend. The inspections have been carried out by the Inspectors and their Assessment Reports furnished, duly adhering to the above requirements.

48. In this backdrop, it is pertinent to notice that it is an admitted position that permission to commence the Post-Graduate Courses was granted in terms of the above provisions of Law, such permission having been preceded by an inspection, issuance of letters of permission and permission thereof to commence the Courses. It can safely be assumed that all conditions were fulfilled by the Petitioner and the Respondents were satisfied thereof. This being so, it is unfathomable now as to why the Respondent No.2 would deny granting of recognition to the four Courses for which students who had been admitted therein in the year 2011, completed their studies in 2014, scant regard being paid to their welfare and thereby jeopardising their future. When permission was granted to commence the Courses by the Respondents No.1 and 2, and students admitted thereafter, the logical culmination would be completion of their studies and rightful expectation of award of appropriate recognised medical qualification, on successful conclusion of the Course. Would it, therefore, now be fair on the students who have WP(C) No.24 of 2015 28 Sikkim Manipal University and Another vs. Union of India and Others completed their Courses to find themselves stranded with no recognised Degree, for no fault of their own, having been admitted on the basis of the permission of the concerned Authorities in the year 2011.

49. In this regard, while addressing the dispute with regard to Course of MD (General Medicine) the communication which has been impugned is dated 26-08-2015, [Annexure P44]. It has been clarified by the Petitioner that in April, 2014, inspection was held and on considering the Assessment Report dated 22-04-2014, the PGMEC of the MCI, sought clarification from the Petitioner on 05-08- 2014, pertaining to the number of Faculty Members who are employees of the State Medical Services, also seeking their appointment orders, which was duly furnished by the Petitioner on 26-08-2004. That the letter of the MCI in fact indicated that the Faculty in the Department of Medicine of the Petitioner were sufficient to run the Post-Graduate studies in SMIMS. The list of Faculty was provided as desired. Following this, a Compliance Verification Assessment was conducted in February, 2015, despite no deficiency being alleged. On 01-04-2015, three deficiencies were pointed out to the Petitioners.

50. On perusal of Annexure P-28 (collectively), the Assessor's Report dated 23-02-2015, duly considered by the PGMEC indicates that the facilities regarding infrastructure and faculty were WP(C) No.24 of 2015 29 Sikkim Manipal University and Another vs. Union of India and Others found satisfactory. Bed occupancy has been shown to be 93% on day of inspection and average bed occupancy in ICU as 95%. In ICCU the average bed occupancy is found to be 65%. The Assessor has also noted details of Journals published from the Department in the last three years. It is not denied that Compliance Report was submitted on 30-04-2015, followed by a Compliance Verification Assessment in 22-06-2015 and a subsequent communication dated 26-08-2015, alleging deficiencies. Those deficiencies appear to be quite different from the ones set out in the communication dated 01-04-2015, in other words, these deficiencies were non-existent in the earlier inspection and emerged only in the second inspection. The Assessor who was physically present at the inspection, to the contrary, was of the opinion that the infrastructure and faculty were satisfactory. Hence, the assessment of the PGMEC appears to be contrary to the finding of the Assessor without assigning reasons for the variance. Although there has been a Compliance Report of 05-10-2015, on 11- 03-2016 the Respondent No.2 has informed the Petitioner that the matter was taken up by the PGMEC on 01-03-2016 and there is only one deficiency arising, which the Petitioner contends in any event is not existing, inasmuch as the third faculty has now joined in Unit III.

51. With regard to MD (Paediatrics), the impugned communication was the letter dated 11-09-2015 vide which the deficiencies have been pointed out by the PGMEC. I find that in this WP(C) No.24 of 2015 30 Sikkim Manipal University and Another vs. Union of India and Others regard the Assessor's Report dated 26-04-2014, [Annexure P46] indicates that the Institution has good infrastructure investigation and laboratory facilities besides other remarks made therein including bed occupancy at 71.70% and that the examiners' qualification and experience met the MCI norms. This Assessor's Report along with compliance dated 30-04-2015 appears to have been considered by the PGMEC on 28-08-2015 where deficiencies have been listed by the PGMEC independent of the findings of the Assessor and communicated to the Petitioner vide letter dated 11- 09-2015. In fact that first communication with regard to this Course showing deficiencies was of 21-08-2014 addressed by the Respondent No.2 to the Petitioner. The next Assessment Report dated 26-06- 2015 notes that the faculty, clinical material is sufficient for training, the institution has good infrastructure, investigation and laboratory facilities. This Report was also considered on 28-08-2015 and communicated to the Petitioners on 11-09-2015 finding three deficiencies. This finding of the PGMEC as evident is contrary to the finding of the Assessor who was physically present at the spot. The Petitioner appears to have furnished a Compliance Report dated 30- 04-2015 which was also placed before the PGMEC. Despite Compliance, recognition was not granted, instead of which letter dated 11-09-2015 was issued pointing out new deficiencies, although, as already, stated the Assessor's Report dated 26-06-2015 does not indicate any deficiencies.

WP(C) No.24 of 2015 31

Sikkim Manipal University and Another vs. Union of India and Others

52. With regard to MD (ENT), vide communication dated 09- 07-2015, it was informed that the Compliance Verification Assessment Report of February, 2015 along with Council Assessor's Report dated April, 2014 and Compliance dated 30-04-2015 was considered by the PGMEC after which ten deficiencies were pointed out. The Assessor's Report of 26-04-2014 meanwhile reveals no adverse remarks against the Petitioner Institute. No Compliance Verification appears to have been carried out with regard to the Compliance Report of 30-04-2015, but communication dated 09-07- 2015 was issued pointing out ten deficiencies and vide communication dated 14-07-2015 the PGMEC after considering the Compliance dated 30-04-2015 had pointed out certain deficiencies which are part of the communication dated 09-07-2015. Apparently, the communication of 09-07-2015 and 14-07-2015 were issued without a Compliance Verification Assessment of 30-04-2015 and, therefore, the deficiencies pointed out appear to be unsubstantiated. The arguments that have been placed by the Petitioners was that vide its letter dated 06-08-2015 addressed to the Respondent it is stated that the College "startled to find that the communication dated 9.7.2015 does nothing more than reproduce verbatim the very same 10 alleged deficiencies that already stand replied to vide our compliance report dated 30.4.2015. .......................". I may add that it is indeed startling to find a reference to Mammography in the communication dated 14-07-2015 issued by the Respondent No.2 to the Petitioner, WP(C) No.24 of 2015 32 Sikkim Manipal University and Another vs. Union of India and Others while dealing with the subjection/inspection of ENT, which indicates either non-application of mind or perversity.

53. With regard to MD (Psychiatry), it has been conceded by the Petitioner that there has been only one round of exchange between the MCI and the Petitioner with respect to this Course. Records reveal that in the PGMEC held on 11-08-2015 the Assessor's Report dated 27-04-2015 was taken into consideration. The Assessor has reported, inter alia, that the Department is having good infrastructure and well-stocked departmental and institutional library. However, the Respondent No.2 vide letter dated 27-08-2015 communicated to the Petitioner seven deficiencies. In response, the Petitioner College vide its letter dated 05-10-2015 submitted a compliance. On 15-02-2016 the Post-Graduate Sub-Committee on going through the Assessment Reports and Assessor's remarks decided to verify compliance by way of assessment which evidently has not been done.

54. The discussions above would pointedly reveal that the deficiencies enumerated by the PGMEC are at variance with the Inspection Report of the Assessors who have by and large given positive findings with regard to infrastructure, faculty, laboratory, library and facilities of the Petitioner No.2. There does not appear to be any shortfall with regard to bed occupancy as well. It is relevant to notice here that in WP(C) No.37 of 2011 dated 27-04-2012 it WP(C) No.24 of 2015 33 Sikkim Manipal University and Another vs. Union of India and Others transpired that the deficiencies taken into consideration by the Assessors and the Board of Governors (for short "BOG") were in total disregard and exclusion of the infrastructural facilities, faculty, staff and clinical material of the STNM Hospital but at the same time it is worthwhile noting that both the Assessors and the BOG were in agreement, which is lacking in the instant matter. The PGMEC and the Assessors have contrary views. Hence, the manner in which the Assessment Reports were considered by the PGMEC over and above the findings of the Assessors on the ground, leaves no manner of doubt that the findings of the PGMEC are irrational. In such a situation, although the impugned communications do deserve to be set aside, nevertheless this Court has to refrain from venturing into the arena of the experts. Since it is undisputed that the Respondent No.3 has to discharge the duty of maintaining the highest standards of medical education and to regulate their observance and supervise minimum standards of medical education, being an expert body, the following directions are being issued;

(i) As the Petitioner has asserted that no deficiency exists after compliance has been made by them, post the impugned communications in all the Post-Graduate Courses, this circumstance has to be gauged by a Compliance Verification. The Respondent No.2 shall carry out fresh inspection of the Petitioner's Institution within two months from today. The Inspection team of the Respondent No.2 shall comprise of two eminent WP(C) No.24 of 2015 34 Sikkim Manipal University and Another vs. Union of India and Others independent observers, apart from the Assessors of Respondent No.2. Needless to add that the inspection shall be carried out in terms of Paragraph 65(v) and (vi) of the Judgment of this Court in WP(C) No.37 of 2011 dated 27-04-2012;

(ii) Pending such verification, the Petitioners shall deposit a sum of Rs.25,00,000/- (Rupees twenty five lakhs) only, with the MCI, Respondent No.2. The Petitioner shall file an undertaking through its Registrar, within two weeks from today, to the effect that no deficiencies exist in the Petitioner's Institution for the purposes of the Post-Graduate Courses, for which permission had been granted. Copy of undertaking be furnished to Respondent No.1 also. If at the time of inspection the undertaking is found to be incorrect, the deposit shall stand forfeited;

(iii) Deficiencies, if any, reported by the Assessment Team shall be brought to the notice of the Petitioner extending the opportunity to the Petitioner to rectify it within a time frame deemed fit, of course, for which the amount deposited as already stated, would stand forfeited to the MCI;

(iv) For students who were admitted in the four Post-

Graduate Courses in 2011 and have completed their Courses in 2014, qualifying them for the award to recognised medical qualification, the Respondent No.1 shall grant recognition to their Degrees within three months from today;

WP(C) No.24 of 2015 35

Sikkim Manipal University and Another vs. Union of India and Others

(v) Students pursuing their Post-Graduate Courses in the Academic year 2015-16, vide Orders of this Court dated 29-05-2015 and 07-04-2016, be allowed to continue their education without hindrance; and

(vi) I have also considered I.A. No.01 of 2016 wherein the Petitioners have sought for an Order of this Court permitting admission to be made to two seats each in MD (General Medicine), MD (Paediatrics), MS (ENT) and MD (Psychiatry) for the Academic Year 2016-17. Keeping in mind the welfare of the students and with the concern that they should not be kept at sea as in the instant matter, it is hereby ordered that admissions shall take place for the said Academic Year 2016-17 only after all requisites are found in place by the Respondent No.2, irrespective of the fact that during such exercise the seats may go vacant this Academic Year.

55. Under the facts and circumstances, the Writ Petition stands disposed of with the above directions.

56. No order as to costs.

Sd/-

( Meenakshi Madan Rai ) Judge 25-05-2016 Approved for reporting : Yes Internet : Yes ds

Unlock Advanced Research with PRISMAI

Sikkim High Court