Madras High Court
The Board Of Governors vs Tagore Medical College & Hospital on 7 August, 2013
Author: R.Banumathi
Bench: R.Banumathi, T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2013
C O R A M
The Honourable Mrs. Justice R.BANUMATHI
and
The Honourable Mr. Justice T.S. SIVAGNANAM
Writ Appeal No.1638 of 2013
The Board of Governors
In Super-cession of the Medical Council of India
Rep.by its Secretary
Pocket-14, Sector 8
Dwaraka Phase-I
New Delhi-110 077. .. Appellant
Versus
Tagore Medical College & Hospital
rep.by its Dean
Dr.S. Shantha
Rathinamangalam
Vandalur
Chennai-600 127. .. Respondents
Prayer : Memoranda of Grounds of Appeals filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 29.07.2013 passed in Writ Petition No.19447 of 2013
- - - - -
For Appellants : Mr.Amit Kumar for Mr.V.P. Raman
For Respondents : Mr.Vijay Narayan Senior Counsel
for M/s.Venkatesh Mahadevan
- - - - -
J U D G M E N T
R.BANUMATHI, J & T.S.SIVAGNANAM, J This appeal by the Board of Governors in Supersession of the Medical Council of India, (hereinafter referred to as the MCI) is directed against the order dated 29.07.2013 in W.P.No.19447 of 2013.
2. The said writ petition was filed by the respondent institution challenging the order passed by the appellant dated 12.07.2013, by which MCI declined to renew the permission for admission of fourth batch of 150 M.B.B.S., students in the respondent institution for the academic year 2013-14.
3. The respondent institution is a Medical college established during 2010 and was granted letter of permission dated 14.05.2010, with an intake of 150 students for the academic year 2010-11. The respondent institution is affiliated to the Tamil Nadu Dr.M.G.R. Medical University, Chennai and 65% of the seats are filled up by candidates nominated by the Government of Tamil Nadu. The permission for the second batch of students which is called the first renewal was granted by MCI for the academic year 2011-12. The second renewal for the admission of third batch of students for the academic year 2012-13, was refused by MCI and the respondent was unsuccessful before the High Court of Delhi, in which the said decision in respect of the third batch was challenged. The present litigation concerns the fourth batch or the third renewal for the academic year 2013-14.
4. MCI conducted surprise inspection on 28.02.2013 and 01.03.2013 of the respondent institution and based on such inspection, the assessors submitted a report dated 01.03.2013 pointing out certain deficiencies. MCI issued a show cause notice to the respondent dated 20.04.2013, pointing out 10 deficiencies and called upon the respondent to submit compliance within 15 days for rectification of deficiencies. The respondent submitted their compliance report dated 07.05.2013. Pursuant thereto, MCI conducted a Compliance Verification Inspection, which was a surprise inspection on 21.06.2013, and the assessors submitted their report. This report was placed before the UG Committee of MCI, who appear to have submitted their comments which was placed before the appellant for consideration and the appellant by order dated 12.07.2013, declined to grant renewal of permission for the fourth batch of students (third renewal) for the academic year 2013-14. This order was impugned in the writ petition.
5. The learned Single Judge after considering the entire facts held that the materials available on record clearly shows that the respondent has satisfied the requirements and regulations framed by MCI and the appellant was directed to consider and dispose of the respondent's application for renewal of permission for the academic year 2013-14 afresh in view of the findings recorded in the order, which was directed to be passed on or before 31.07.2013. Challenging the said order and direction issued, the appellant have filed this appeal.
6. Mr.Amit Kumar, learned counsel appearing for Mr.V.P.Raman, the learned counsel for the appellant after elaborately referring to the first inspection report dated 01.03.2013, and the second compliance verification assessment dated 21.06.2013 submitted that the appellant has taken a decision based on the material, as there were deficiencies which have not been rectified by the respondent and the learned Single Judge was not justified in assuming the role of MCI and observing that the respondent has substantially complied with all the deficiencies pointed out and that a wrong criteria was applied, while considering the application for renewal of permission. The learned counsel further submitted that due to shortage of time, counter affidavit could not be filed, since the writ petition was filed on 17.07.2013, and the original records were called for by the writ Court on 22.07.2013 and the orders were passed on 29.07.2013, with a positive direction to the appellant to grant renewal of permission on or before 31.07.2013. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Priya Gupta vs. State of Chhattisgarh [(2012) 7 SCC 433] and submitted that no letter of permission could be granted by MCI beyond 15th July of each calendar year and it would amount to violating the order passed by the Hon'ble Supreme Court. The learned counsel further submitted that in respect of the 2012-13 batch, the respondents challenged the order dated 28.06.2012, passed by the MCI declining to grant renewal, by filing a writ petition in W.P.(C).No.4491 of 2012, before the High Court of Delhi, which was dismissed by judgment dated 11.09.2012. By referring to the decision of the Hon'ble Supreme Court in Union of India vs. Era Educational Trust [(2000) 5 SCC 57] it is submitted that the scope of judicial review in such matters, is very limited and it should be left to the decision of the experts.
7. Mr.V.P.Raman, learned counsel for the appellant submitted that in the impugned order in paragraph 12, it has been mentioned as if the counsel for the appellant conceded before the writ Court and the fact is that the files alone were handed over and no such concession was made.
8. Mr.Vijay Narayan, learned Senior counsel appearing for Mr.Venkatesh Mahadevan, learned counsel for the respondent submitted that the judgment of the High Court of Delhi in respect of the 2012-13 batch cannot be put against the respondent, as the respondent has rectified all the deficiencies pointed out. The learned counsel referred to the report submitted by the team of experts and pointed out that a serious mistake was committed by the assessors by adopting the parameters to be followed for the fourth renewal instead of following the parameters for the third renewal as fixed by the MCI. Even as per the report of the committee only three deficiencies were pointed out namely, shortage of six patients, shortage of one major operation theatre and genuineness of the number of patients. So far as the shortage of six patients and shortage of one major operation theatre is wrong, since the appellant satisfies the requirements as per the norms which is stipulates only seven major operation theatres as requirement and the number of patients required is 700 and the respondent fulfils these criteria and the assessors who inspected the institution also certified, there is 'Nil' deficiencies in this regard. Insofar as the genuineness of the number of patients, the assessors did not offer any comments and therefore, that cannot be a basis for rejection. In this regard, reference was made to the requirements fixed by MCI to be fulfilled by colleges for obtaining a letter of intent, letter of permission and yearly renewals. The learned counsel further submitted that no reasons were assigned by the appellant, while rejecting the respondent's application for renewal as could be seen from the resolution passed by the appellant and published in the website of MCI. By referring to the Assessor's Guide (2013-14) published by the appellant, it is submitted that if the assessors observe discrepancies, it should be brought to the notice of the Dean/Principal and the signature should be obtained at the relevant place and this was not followed in the case of the respondent. The learned counsel referred to certain material to state that the approach of the appellant is discriminatory. It is further submitted that if this Court finds that there has been compliance of the requirements by the respondent, this Court would be fully justified in issuing appropriate direction to the appellant to enable the respondent to admit students out of which 97 students will be nominated by the Government of Tamil Nadu.
9. We have heard the learned counsels for the parties and carefully perused the materials placed on record.
10. The appellant appointed a team of assessors for assessment of the physical and other teaching facilities available for renewal of permission for admission of fourth batch of 150 M.B.B.S., students in the respondent institution for the academic year 2013-14. The assessment was carried out by conducting inspection on 28.02.2013 and 01.03.2013, and a report was submitted on 01.03.2013. The appellant considered the report and found that the assessors have pointed out certain deficiencies. Therefore, the appellant by notice dated 20.04.2013, called upon the respondent to submit their compliance/reply within 15 days for rectification of the deficiencies pointed out. The respondent submitted their compliance report dated 07.05.2013. In order to verify the correctness of the statements in the compliance report, a surprise inspection was conducted by another team of assessors, which is called as 'Compliance Verification Assessment' and a report of such assessment was submitted on 21.06.2013. Copy of such report has been filed by the appellant, from which we find that the respondent has complied with all the requirements more particularly what has been pointed out by the assessors, who conducted the first inspection and submitted a report on 01.03.2013. The appellant by their decision taken in the meeting held on 09.07.2013, held that in view of large number of deficiencies still persisting it was unanimously decided not to approve the renewal of permission for the fourth batch of 150 students for the academic year 2013-14, in the respondent institution. By the same resolution, the request made by another college from Agra for increase of intake was also rejected. We have perused the impugned resolution dated 09.07.2013, from which it is seen that no specific reasons have been assigned as to how the respondent is not entitled for the renewal of permission and the effect of the compliance report and the effect of the compliance verification assessment report dated 21.06.2013. This decision was challenged by the respondent by filing the writ petition.
11. Before the writ Court the original file relating to the respondent institution was produced for the consideration of the Court, from which it was found that the respondent has substantially if not fully, complied with the requirements and after making a thorough assessment of the fact as seen in the original file, the learned Single Judge issued direction to grant renewal of permission for the academic year 2013-14.
12. As noticed above, 10 deficiencies were pointed out by the first team of assessors, who inspected the respondent institution and submitted a report dated 01.03.2013. The appellant called upon the respondent to submit their compliance within a period of 15 days, which was done by the respondent by submitting a compliance report dated 07.05.2013. In order to verify the correctness of the compliance report, another team of assessors consisting of three experts conducted the compliance verification assessment on 21.06.2013 and submitted a report.
13. We have carefully perused the report and we find that the team of assessors recorded their full satisfaction as regards the compliance of the various parameters by the respondent institution. There were NIL deficiencies regarding various Departments like Anatomy, physiology, Biochemistry, Pathology, Microbiology, Pharmacology, Forensic Medicine and Community Medicine. By way of illustration in paragraph 1.14 the hostel facilities have been stated to be adequate, para 2.3 teaching and other facilities adequate; para 2.5 total number of beds verified and found to be correct; para 2.9 clinical laboratories was found to be adequate; para 2.10 regarding operation theatres - seven major OTs were found to be in working condition and from para 3.2 to 3.10 in all the departments, the deficiencies was reported to be 'Nil'. Therefore, the appellant was required to take a decision based upon the compliance verification assessment report dated 21.06.2013, in which the team of assessors found the respondent institution has complied with the deficiencies pointed out in the report dated 01.03.2013, as intimated by the appellant by notice dated 20.04.2013. However, we are unable to assess as to on what basis the appellant took a unanimous decision not to approve the application for renewal, since there are no reasons assigned in the resolution of the appellant dated 09.07.2013 (resolution published in the website). Further, even in the order impugned in the writ petition dated 12.07.2013, no reasons have been assigned and it has not been explicitly stated as to what are the deficiencies still persisting. The assessment of such persisting deficiencies should have been based only on the compliance verification assessment report dated 21.06.2013. Therefore, to make a reference to the earlier inspection report dated 01.03.2013, ignoring the compliance verification assessment report would be arbitrary and unreasonable.
14. From the original file produced before the writ Court, it was noticed by the writ Court from page no.441 of the files, the following the tabulated statement finds place:-
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sl. Govt. Name Type of Deficiencies as per Observations BOG No. /Pvt of the Assess- UG Committee of UG decis fs Colleg ment Committee on ions e the compliance submitted by College ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Trust Tagore Renewal Central Library : 32 + 15 =47 Medica of shortage of Journals complied l Permiss (Indian + Foreign) Colleg ion for (14+06 available as e and 4th against the Hospit Batch requirement of 28 + al, of 150 12 - Indian and Chenna MBBS foreign i Student respectively.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Complia Shortage of hostel
nce accommodation for Now 178+74 =
verific students by 105 (347 252 - Boys
ation available as against 206- Girls
assessm the requirement of 458 - Total
ent 452). Hostel So Adequate &
dated facility inadequate Complied
21.6.13 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Shortage of beds by Complied
115 in the
Departments of
Medicine & Allied,
Surgery & Allied &
OBG.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
OPD Attendance
most of the patients
transported to OPD 894 Shortage
in college vehicle of 6 per day
as per assessor.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Bed occupancy - 79% No
Genuineness of comments from
admitted patients Assessors
questionable. about
genuineness
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Clinical Material : Not complied
Deficiency of 01 2 Major OT
Major OT short.
(As
--
per
---
Assessment
----------
report 07
-------------
major OT
-------------
available as
-------------
against 07
-------------
required)
--------
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Clinical Material - No
ICU- Genuineness of information
patients admitted in about number
ICU is questionable. of patients
admitted -
not complied
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Shortage of nursing
staff by 48 (175 229 complied
available as against
the requirement of
223).
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
As per visual No comments
perception on by Assessors
videography, patient
influx seems to be
quite inadequate.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Other deficiencies
as pointed out in
the assessment
report. Nil
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
15. On a bare perusal of the above statement, it is seen that the respondent has complied with the deficiencies as pointed out in the first report regarding library, hostel accommodation, number of beds, number of nursing staff. Sofar as the number of patients in the out patient department, the UG committee has reported that there are shortage of six patients per day. This shortage has been arrived at by taking the minimum number of patients at 900. On a perusal of the Requirements to be fulfilled by the Applicant Colleges for obtaining Letter of intent and Letter of Permission for Establishment of the new Medical Colleges and Yearly Renewals under Section 10-A of the Indian Medical Council Act, 1956, the requirements for admitting 150 students for the third renewal is 750 patients in OPD. However, the UG committee appears to have taken 900 as the minimum requirement which is the requirement for the fourth renewal. When the respondent's application itself was for the third renewal i.e., the fourth batch for the academic year 2013-14, the minimum requirement is only 750 and even as per the UG committee report, there were 894 patients in the OPD and if that be so, the patient requirement in OPD also fulfils the norms. Similar is the observation insofar as the number of major operation theatres. The requirement as stipulated by the MCI is 7 major operation theatres which the respondent has provided which has also been accepted by the UG committee. The requirement of 9 major operation theatres is only for the fourth renewal. As regards the number of patients, no information has been recorded by the assessors and even with regard to patient influx the assessors have recorded no comments. In such circumstances, it is evidently clear that the respondent has fulfilled the requirements as stipulated by MCI for the third renewal.
16. The learned counsel appearing for the appellant by referring to the decision in Priya Gupta, (supra) submitted that no renewal of permission could be granted beyond 15th July of each calender year. However, in the case on hand we have found that the appellant did not apply their mind to the compliance verification assessment report and the UG committee while analysing the report appears to have applied the norms fixed for the fourth renewal when in fact the respondent institution had submitted their application for the third renewal. Furthermore, no reasons were assigned either in the resolution of the appellant or in the impugned order dated 14.07.2013, and a vague statement has been made stating that there are large number of deficiencies still persisting.
17. Thus, when there is arbitrariness in the action of the appellant and when decision has been taken without assigning any reason, it clearly offends Article 14 of the Constitution and in such circumstances, this Court is not denuded of its jurisdiction in issuing appropriate directions to meet the ends of justice. That apart, the last date for completion of all admissions to the medical course is yet to be over and it comes to an end only on 30.09.2013. Though the respondent was unsuccessful before the High Court of Delhi in respect of the grant of renewal of permission for the academic year 2012-13, that would not disable or disentitle the respondent from seeking for renewal of approval for the year 2013-14, which has been independently assessed by the appellant. Therefore, the respondent cannot be non-suited on this ground.
18. For all the above reasons, we find no error in the order and direction issued by the learned Single Judge and the writ appeal being devoid of merits, is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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